Fordham Law

Bloomberg Risks Public Opinion With Soda Limits, Atty Says

Fordham Urban Law Center in Law360, November 27, 2012

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Law360, New York (November 27, 2012, 10:23 PM ET) -- Michael Bloomberg's aggressive anti-obesity policies could erode public confidence in government health initiatives if his sugary drink portion limits and calorie counts don't achieve results, a lawyer who represented the restaurant industry in litigation against the New York mayor warned Tuesday.

Arnold & Porter LLP litigation partner Peter Zimroth, whose clients' legal bid to defeat the billionaire mayor's 2008 initiative to have restaurants post calorie information failed, spoke about the policies at a Fordham University Law School panel discussing Bloomberg's legal legacy. The mayor's policies on curbing smoking in New York restaurants, beaches and parks undoubtedly have had beneficial health effects, Zimroth and other legal experts said, but with respect to the city's first-in-the-nation anti-obesity policies, the jury is still out.

"The legacy is yet to be written on some of these initiatives," said Zimroth, who formerly served as New York City's chief legal officer. "There is a really serious cost to be paid if, in the long run, they don't work."

That's because government only has limited political "capital" to impose coercive measures on people and corporations, Zimroth said.

But two city officials on the panel, the city's current chief legal officer and the health commissioner who worked on the so-called sugary drinks ban, currently the target of a beverage industry lawsuit, said the mayor's desire to increase the life expectancy of New York residents is at the heart of his headline-grabbing moves.

"We used all the evidence available and felt — and still feel — that we're on solid ground," said Thomas Farley, the city health commissioner who was instrumental in enacting the sugary drinks curb. "It's not, to me, a heavy-handed policy."

The city's current chief legal officer, New York City corporation counsel Michael Cardozo, echoed that sentiment, saying his legal team's job had been to help the mayor enact policies that are important to him and that so far, "we have prevailed in the challenges against these health initiatives."

The city board of health has unique standing to pass such initiatives, Farley added, because it is not in the sway of lobbyists such as those who swarm Albany, New York's lawmaking capital, and Washington, D.C.

"If one tried to pass a federal law on this, it would fail," Farley said of the sugary drinks rule.

Moves by the city to enact health initiatives have been replicated elsewhere, he added, meaning they have not been as unpopular as some industry groups have suggested.

The final word isn't set on whether the soda policy or the calorie counts will make people more healthy, said New York University assistant professor of medicine and health policy Brian Elbel, who agreed that the political capital of government to impose fat bans and other restrictive policies "is not unending."

But, according to Elbel, the initiatives show a mayor who is wiling to take risks where policy matters are concerned.

For all of his successes, Bloomberg's legal risks have generated failures, the panel pointed out. Among them were a failed attempt to pass a "soda tax" in Albany and a bid to have tobacco warning labels posted prior to their purchase at retail outlets.

"The big legacy of the Bloomberg administration [is that] they are willing to go out on a limb," Elbel said.

--Editing by Elizabeth Bowen.