post by Paul Kelleher
Peter Ubel writes:
Unfortunately, the Big Gulp ban is a bad idea.
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Where the trans-fat and soda bans differ, however, is in the coherence with which New York City officials can explain how they draw the line between banned and unbanned goods.
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Coke and Pepsi are artificially manufactured processed foods, too. And they contain an undeniably harmful substance. But herein lies the problem. The harmful substance is sugar, and the sugar in Coca-Cola is no more harmful than the sugar in apple juice or a milkshake.
This is understandably confusing to the public, who can’t understand why New York City is planning to ban large sodas but not triple-decker chocolate cakes, or why the 280 calories in a 24-ounce Coke are somehow worse for them than the 330 calories in a Starbucks peppermint mocha.
The success of most policies depends upon public support. But incoherent policies are difficult to embrace.
If Mayor Bloomberg were defending his policy in front of the Supreme Court, the justices would be asking him for a limiting principle – a rationale that would help us know where this policy begins and ends. The ban on large sodas doesn’t pass this test.
I think a lot more rides in this case on pragmatic and context-specific considerations than Ubel acknowledges here. Ubel adopts the language of the Supreme Court oral arguments over the ACA when he says that Bloomberg cannot provide a "limiting principle" that explains why large sodas should be banned but not Starbucks peppermint mochas. But I wonder: is there a limiting principle that explains why one can buy Tylenol over the counter but not fentanyl patches? Each one can be very harmful if used improperly, and each works by containing narcotics, just as both soda and milkshakes taste delicious because of their sugar content. This suggests that sometimes pragmatic, context-specific considerations can serve to justify otherwise "incoherent" policies governing the sale of similar substances. A paradigm example of a pragmatic consideration is how likely it is that Tylenol (or soda) will be consumed in degrees that trigger the public's interest. Another example may well be how likely it is that a key demographic--kids and adolescents, e.g.--will overconsume one product rather than another. (Another may concern the degree to which specific consumption patterns negatively impact the already cash-strapped budgets for essential social services.)
I'm not yet saying that the consumption patterns of soda raise do in fact raise pragmatic concerns that render Bloomberg's specific proposal justified in the final analysis. (I need to read more of the empirical work on the issue.) I'm only pointing out that sometimes pragmatic considerations can justify a policy response that can't be neatly expressed in a tidy limiting principle.
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