Bloomberg smoking gun, media fails to report on it

Remember how we were all told that the Bloomberg sugar "portion cap" exempted the Big Gulp because the Health Department had no jurisdiction over FSE's (gorcieries, bodegas, 7-Elevens, convenience stores)? All lies. 

The Appellate Division's decision against Bloomberg's sugar "portion cap" addresses a complex web of intriguiging policy issues indicative of the Bloomberg administration. If a legilsative body, the City Council in this case, fails in its mandate to write effective laws, can a mayoral administration usurp its function for the welfare of the public? Under what conditions?

It turns out that the cap was much more than an administrative remedy for an ineffective legislature. The big news in the decision -- which has not been adequately reported in the media -- lies in the cap's favoritism. The mayor and the Board of Health claims that they have no jurisdiction over FSE's (groceries, 7-Eleven's, bodegas). But the decision explains that this is simply not true:

With regard to the exemption of certain FSE’s (i.e., grocerymarkets, 7-11s, bodegas, etc.), the DOHMH does not deny that the exemption has no relationship to health-related concerns. Still, the agency argues that it was not based on impermissible reasons, but on the agency’s allegedly reasonable view that such FSEs cannot be regulated by the Agency under the MOU signed with the state’s Department of Agriculture. However, the Board’s claim that the MOU tied its hands is belied by the fact that the agency [the Board of Health] has previously used its regulatory authority to promulgate city-wide health rules that regulate all FSEs (see e.g. 24 RCNY HealthCode 181.07) [city-wide regulation of common eating and drinking utensils]; 24 RCNY Health Code 71.05) [city-wide prohibition on the sale of “any food . . . which is adulterated or misbranded”]). Moreover, the MOU envisions “cooperative efforts between the two agencies [to] assure comprehensive food protection” and to avoid gaps in food surveillance.” Yet, the agency offers no evidence of any prior attempt to coordinate witht he Department of Agriculture on the Portion Cap Rule. The failure to obtain such expansion resulted in a ban that includes exceptions which necessarily favor some businesses and products at the expenses of others. Accordingly, the selective restrictions enacted by the Board of Health reveal that the health of the residents of New YorkCity was not its sole concern. If it were, the “Soda Ban” would apply to all public and private enterprises in New York City. By enacting a compromise measure — one that tempered its strong health concerns with its unstated but real worries about commercial well-being, as well as political considerations — the Board necessarily took into account its own non-health policy considerations. Judged by its deeds rather than by its explanations, the Board of Health's jurisdictional rationale evaporates.

Judge Renwick writing for a unanimous decision of all four Appellate judges, my emphases

What's important here is not just that the mayor could have extended the cap to delis, bodegas, groceries and 7-Elevens. It's that the mayor and the Board of Health lied about it to the public. 

The mayor purposely exempted FSE's exactly at the moment when 7-Eleven began its entry into New York. No wonder he lied.  

There's further evidence of malfeasance. The court found that the Department of Health didn't bother to include research in its cap policy, instead accepting a policy draft from the mayor's office itself without any research background. The research is easily available and pursuasive, but the Board didn't bother with it. The policy was a ukase from on high, handed from one office and accepted by another without demur or even window dressing. It shows excesive administrative control and a lack of agency independence, responsibility and accountability. Agencies are supposed to have and use specific expertise, not just hand over orders from above. Otherwise the agency has no justification for its existence or its expenses. 

Legislative bodies respond to constituencies as well as research, so popularity might be an obstacle to writing sound law. That's a justification for an administration, or certainly for a regulatory agency, to step in, where its expertise is wiser than popular opinion. But to step in without providing the evidence of the greater wisdom is hubris. You'd think Bloomberg would have been more careful. 

The answer to the questions at the top -- when can an administration overreach for the benefit of the public? -- has its answer. Checks and balances of government serve a purpose. Overreaching allows abuse of authority and cronyism. 

The court found that the Health Department overreached as a regulative agency on other grounds as well. One ground seems ambiguous: They found that sugar is not inherently dangerous, but only in large quantities, so regulating it depends on behavior, not flat out substance banning. That seems to argue on both sides: how else can the regulatory agency control the substance without overreaching into behavioral social policies that belong to the legislature? If the legislature is ineffectual, why not overreach? Is the slippery slope there too steep?

This seems to me to trade on a false dichotomy. Behavior is not the only means of controlling sugar. The soft drink industry can be burdened with the regulation, not the consumer. Problem is, the city has no jurisdiction over corn syrup production or use. 

In all organizations ruled by law, there are sectors that are protected from change, others that are easily pushed. By definition, those are the disempowered. Here it is the low-income consumer. Monsanto and Pepsi et al. should be burdened, not the consumer. In our society labor and consumers are mere pawns. Corporations and their products control our politics, our imagery, our information, our visibility. The bigger they are, the more control.