Mayor Bloomberg Isn’t The Only Food Cop

New York City Mayor Michael Bloomberg made headlines last year when he proposed a ban on large sodas. From the start, the plan was derided as paternalistic, confusing, and riddled with loopholes.  Now we can add one new adjective to that list:  illegal.  Last Monday, New York Supreme Court Judge Milton Tingling struck down the soda ban, holding that the rule was “arbitrary and capricious.”

The judge’s ruling is a matter of common sense.  Under the soda ban, restaurants, movie theaters, stadiums, and food trucks were prohibited from selling soda in containers larger than 16 ounces, but 7-Eleven remained free to sell Super Big Gulps.  The law banned large sodas, but not equally high-calorie alcoholic beverages, which meant your neighborhood pizzeria could serve up your slice with a pitcher of beer, but not with a pitcher of soda.  And although the law was supposedly designed to limit soda consumption, restaurants were allowed to offer customers as many refills as they wanted.  As the judge recognized, “the loopholes inherent in the rule gut the purpose of the rule.”

Despite making eminent good sense, there are those who are criticizing this ruling as judicial overreach.  But Judge Tingling did exactly what the Constitution demands: protect individual liberty by striking down a law that made no sense.

Courts serve a vital role in enforcing limits on the other branches of government.  When courts fail to fulfill this role, we are left to rely on the self-restraint of public officials like Mayor Bloomberg.  But experience has shown that this is no restraint at all and it inevitably leads to the inevitable loss of freedom.

Unfortunately, when it comes to telling us what we can and cannot eat, government officials do not stop at prohibiting unhealthy foods. Some government agencies don’t even want people talking about diet without the government’s permission.

North Carolina resident Steve Cooksey found this out the hard way. Once extremely unhealthy with major complications from diabetes, Cooksey saw a lifetime of medication and costly, painful procedures ahead of him.  But Cooksey turned his life around by adopting a “paleolithic diet” of meats, fish, fats, nuts, vegetables and fruit, eschewing all sugar and junk food.

Eager to share the story of how he transformed his life with others, Cooksey started writing Dear Abby-style columns about diet on his personal blog.  But this caught the attention of the North Carolina Board of Dietetics and Nutrition, which ordered him to stop, alleging that his advice about what people should buy at the grocery store constituted the unlicensed—and, hence, illegal—practice of dietetics.  Cooksey has since joined the Institute for Justice in a lawsuit seeking to vindicate his First Amendment rights.

Whether in New York or North Carolina, when government officials radically overstep their bounds by telling people what foods they can’t sell or what dietary advice they can’t give, courts need to be willing to step up and rein them in. When judges perform this role, it isn’t “activism,” it is appropriate judicial engagement.

A free society needs judges who are willing to judge.  What we see too often now are judges who ignore evidence, invent facts, and accept implausible explanations for government regulations.  That amounts to judicial abdication.  Judges should engage the facts of every case, including constitutional cases, and require the government to justify its actions with real reasons backed by real evidence. Otherwise, we trust our freedom to officials like Mayor Bloomberg and the North Carolina Board of Dietetics/Nutrition. And we all know how that works out.

 The author is an attorney at the Institute for Justice, which represents Mr. Cooksey in his fight against the North Carolina Board of Dietetics/Nutrition. Bloomberg image courtesy of Big Stock Photo.