NYC’s Soda Ban on Trial in High Court

When announcing the City’s ban on large soda drinks, Mayor Bloomberg thought that he was going to make New York City a leader in the push for Nanny State regulations nationwide. Many health advocates seem to think it’s a good idea for government to regulate sales of sugary drinks and other (not so healthy) foods. So it’s doubtful that Bloomberg expected such a vocal public backlash. But people seem to be up in arms over the issue because it reminds us of how intrusive government has become in our daily lives. And for this reason the NFIB Small Business Legal Center thought it worth supporting the legal challenge to the Soda Ban.

So far things have gone our way. Last summer a New York Court of Appeal affirmed a lower court decision striking down the Soda Ban. At the time we applauded the victory; it was refreshing to see the court strike down a restriction on our economic liberties. But now the case is going to New York’s highest court in a final showdown.

Last week the NFIB Legal Center joined with other industry groups in a joint brief defending the Court of Appeals decision. We argue that consumers should be allowed the right to choose for themselves which products they would like, and that government shouldn’t seek to regulate our lifestyle choices in this manner. For this reason we maintain that businesses should be free to continue selling soda in whatever size consumers prefer.

The decision may well have implications beyond New York. If we succeed in striking down the Soda Ban, that’s a clear line in the sand. And regulators will have to think twice before adopting similar measures in other cities. Conversely, if the Court chooses to uphold the Soda Ban, that sets a precedent that will only embolden paternalism in other places. Indeed, if New York City gets away with this, it won’t be long until San Francisco, Portland, Chicago, Boston, and Philadelphia do the same thing.

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About Luke Wake

Luke A. Wake is a senior staff attorney at the NFIB Small Business Legal Center. Wake has particular expertise on environmental and land use issues, and has worked on numerous other constitutional issues and matters of importance to small business owners. He is an ardent defender of private property rights, which he believes are essential to the free enterprise system and the foundation of American liberty. As a strong advocate of individual rights and economic liberties, he has built his career defending small business interests. Since joining the NFIB Legal Center, Wake has focused on a whole host of issues, from employment law matters to regulatory compliance. In addition to serving as a resource for small business owners, Wake remains committed to the Legal Center’s pledge to ensure that the voice of small business is heard in the nation’s courts. He is also working to advance small business interests in law review articles, including publications in the Berkeley Journal of Law & Ecology, the Texas Journal of Law and Politics, and Competition Magazine. See R.S. Radford & Luke A. Wake, Deciphering and Extrapolating: Searching for Sense in Penn Central, 38 Ecology L.Q. 731, 746-747 (2011); Damien M. Schiff, Luke A. Wake, Leveling the Playing Field in David v. Goliath: Remedies to Agency Overreach, 17 Tex. L. Rev. & Pol. 97 (2012); Jarod M. Bona and Luke A. Wake, The Market-Participant Exception to State-Action Immunity From Antitrust Liability, J. of Antitrust and Unfair Competition of the State Bar of Ca., Vol. 23, No. 1, 156 (Spring 2014); James S. Burling and Luke A. Wake, Takings and Torts: The Role of Intention and Foreseeability in Assessing Takings Damages, in Condemnation 101: Making the Complex Simple in Eminent Domain 449-51 (ALI-ABA Committee on Continuing Professional Education eds. 2011). Before joining the Legal Center’s team, Wake completed a prestigious two-year fellowship as an attorney in the Pacific Legal Foundation’s (PLF) College of Public Interest Law. Wake is a graduate of Case Western Reserve University School of Law in Cleveland Ohio. He is a member of the California Bar, the District of Columbia Bar, and the U.S. Supreme Court Bar. He completed his undergraduate studies at Elon University in North Carolina in 2006 where he focused on political theory and corporate communications.
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