Individual choice is so last season.  As anticipated, the New York City Board of Health passed Mayor Bloomberg’s ban on large sugary beverages, and beginning March 12, 2013, New Yorkers will no longer be able to satisfy their sweet teeth with sugary drinks over 16 ounces (read WLF’s public comments on the proposed ban here).  But it’s not over until the, ahem, obese lady sings.  And with a large proportion of the population opposed to his ban, Mayor Bloomberg should brace himself for the legal challenges sure to come.

In WLF’s comments, we identified New York state separation of powers provisions that could potentially serve as causes of action.  Further claims could be based on the dormant commerce clause, Substantive Due Process, or the Equal Protection Clause.

In the court of common sense, the ban is similarly in trouble.  Leaving aside the fact that residents can (and will) purchase two small beverages instead of one large, meaning the “ban” effectively acts like a tax (which will especially burden low-income families), the ban doesn’t apply to those establishments regulated by the state Department of Agriculture and Markets–including stores with food service totaling less than 50% of annual sales (think 7-Elevens and grocery stores).  This means that in some cases, one business will have to cease sales of the banned drinks while another business on the same street will not.

No one doubts the health risks associated with obesity.  But that sentiment alone doesn’t justify encroachment on individual choice.  Mayor Bloomberg and the Department of Health failed to give credence to the serious impact this ban will have on the economy–those businesses that rely on the sales of these beverages and their cups and containers are facing a new burden on their business.  Just ask the maker of Honest Tea, who, because of his use of 16.9 ounce jars to bottle his teas (a mere .9 ounces over Bloomberg’s arbitrary cap), will have to make expensive changes to his manufacturing process.  Alternatively, he could just stop selling his beverages in New York.  Either way: what a (sugar) buzz kill.

Let the legal challenges begin.