Legal Jurisprudence: Paternalism

Topics: New York City, Michael Bloomberg, Mayor of New York City Pages: 21 (7475 words) Published: May 10, 2013
The NYC Soda Ban: Nanny Bloomberg’s Paternalism & the Battle of the Bulge
The subway comes to a stop at the Times Square station, the doors open, and I walk out with my ticket to some big Broadway show ready to begin a fun summer vacation. But almost immediately I am struck by the grotesque, unnerving advertisement plastered on the wall of the subway station. What looks like a refreshing beverage is pouring out of an open bottle past the slogan “Are you pouring on the pounds?” where the liquid morphs into human fat spilling out of a glass. I shake it off, not wanting to let anything ruin my vacation in the Big Apple. Once on the street I pass a typical New York City newsstand and glance at the cover of the latest New Yorker magazine, drawn in a noir-style the cartoon depicts of a man and woman huddled over a can of soda caught in the glare of a police flashlight. Like most New Yorker cartoons I don’t get it. Making my way into the brightly lit neon that is Times Square is a sensory overload, but as I walk on my attention is grabbed by a man carrying a large billboard. He isn’t mumbling about the end of the world or asking for spare change, he’s talking about soda and the picture on the billboard he holds is of a conservatively dressed large hipped woman towering over the New York skyline, but the face has been altered into the face of current Mayor of New York City, Michael R. Bloomberg. The bold headline “The Nanny: you only thought you lived in the land of the free” is undercut by the tagline “New Yorkers need a Mayor, not a Nanny.” Almost at the theater I’m approached by a young woman with an iPad in the crook of her arm, she adjusts her glasses and asks me if I’d like to take part in a quick community action program, but I tune her out as I look at her t-shirt; on one side a stylized outline meant to reflect the Statute of Liberty but instead of her torch she holds a cup with a straw sticking out of it. Across the chest of the white t-shirt in block letters: “I picked out my beverage all by myself”, I chuckle a little before letting the soda activist know that I am an out-of-towner. She thanks me for my time and I walk away contemplating the barrage I was just exposed to. I never visited New York City in the pre-Disneyfication days before Mayor Guiliani but I can see now that the city is in the middle of a new kind of clean up focusing less on the streets and more on the people walking them.

Recently, Mayor Bloomberg announced a proposal restricting the maximum size of sugar-sweetened beverages that can be sold in New York City to 16 ounces in restaurants, fast food establishments, delis, movie theaters, and food carts; grocery stores and convenience stores would be exempt. The proposal does not affect the sale of large sized alcoholic beverages, diet beverages using artificial sweeteners, dairy products, and fruit juices. The proposed restriction could take effect as early as March 2013 if adopted by unanimous vote from the New York City Board of Health sometime in September 2012. A public hearing on the proposal is scheduled before the Board of Health for July 24, 2012. This proposal is a continuation of Mayor Bloomberg’s mission to protect the health of New Yorkers; previous city-wide municipal health care legislation included the 2008 adoption of Article 81 to the Health Code banning the “dangerous presence of trans-fats in restaurant food” and restriction of smoking in most indoor areas in 2002.

The focus of this Note is to highlight the deficiencies in the latest proposal by Bloomberg, while advising reexamination under the standards of paternalism and public autonomy. Specifically, the proposed beverage ban (“The Ban”) should not be implemented because it cannot be justified as a paternalistic piece of legislation when decisions regarding sales are fully supported as autonomous and the risk of harm does not outweigh the individual action. Section II will provide context for the argument...
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