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The natural progress of things is for liberty to yield and government to gain ground. —THOMAS JEFFERSON, 1788

Minority report: Advocates sue NYC over ‘racial fairness’ of jumbo soda ban

Bloomberg

New York City Mayor Michael Bloomberg has met the enemy, and it is him.

The Associated Press reports that a lawsuit brought by beverage makers over a prohibition on the sale (and, it follows, consumption) of 16-plus-ounce sugary drinks has been joined by two unlikely bedfellows: The NAACP and the Hispanic Federation. In a hearing today, the plaintiffs will argue variously that the ban, scheduled to take effect on March 12, is undemocratic and “racially unfair.”

The suit was originally filed by the American Beverage Association and business groups, including movie theater owners. Their argument was that the first-of-its-kind restriction was unlawful insofar as the Bloomberg administration bypassed the democratically elected City Council and issued the ruling by fiat.

Since then, the New York State chapter of the NAACP and the Hispanic Federation have found their own axe to grind, claiming that the ruling is racially discriminatory. In court papers, their attorneys wrote:

This sweeping regulation will no doubt burden and disproportionally impact minority-owned businesses at a time when these businesses can least afford it.

The New York City Board of Health passed the measure in September 2012, citing the city’s rising obesity rate — reportedly 24 percent of adults — and pointing to studies that link sugary drinks to weight gain. In its own brief, the city wrote, “It would be irresponsible for [the board of health] not to act in the face of an epidemic of this proportion.”

But Five City Council members disagree. They have joined the fray, siding with the plaintiff, opining in a separate court filing that the lawmaking body is “the proper forum for balancing the city’s myriad interests in matters of public health.” The Bloomberg administration argues that the health board, made up of doctors and other health professionals, has the “specialized expertise” necessary to make an informed decision on what New Yorkers should be allowed to consume.

Legal scholar Neal Fortin, Director of the Institute for Food Laws and Regulations at Michigan State University, maintains that state and local governments have broad authority to enact laws intended to protect people’s health and safety but that it remains to be seen how a court will view a restriction on portion-size.

In the meantime, minority advocates are ambivalent over their own position. They worry that the soda restriction will unduly harm minority businesses and impinge on “freedom of choice in low-income communities” but at the same time they point to Centers for Disease Control findings that obesity rates are above average among blacks and Hispanics.

It’s an interesting catch-22. They don’t want the nanny state interfering with their personal liberties, but they crave parental supervision. You can’t have it both ways, but liberals can dream.

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Howard Portnoy has written for HotAir, NewsBusters, Weasel Zippers, Conservative Firing Line, RedCounty, and New York’s Daily News. He has one published novel, Hot Rain, (G. P. Putnam’s Sons), and has been a guest on Radio Vice Online with Jim Vicevich, The Alana Burke Show, and The George Espenlaub Show.

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