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No, mayors are not in charge of sodas

NEW York City Mayor Michael Bloomberg's nannystate decision to make it illegal for some retailers to sell some large drinks drew national attention.

Nannies are in charge of children, not adults.

Bloomberg wrote a ban on the sale of soft drinks in servings larger than 16 ounces, an edict the city's board of health adopted without substantive change.

The mayor said banning the sale of large sodas would reduce obesity in his city.

On Monday, a New York judge, Milton Tingling, struck down what is formally known as the Portion Cap Rule. He noted that the mayor - not City Council - wrote the law.

The judge held the New York City Council was the legislative body of the city, "and it alone has the authority to legislate as the Board seeks to here."

He added:

"This rule would not only violate the separation of powers doctrine, it would eviscerate it."

The judge also found that the ban applied only to certain establishments, and did not apply to all sugary drinks.

"It is arbitrary and capricious because it applies to some but not all food establishments in the city, it excludes other beverages that have significantly

higher concentrations of sugar sweeteners and/or calories on suspect grounds, and the loopholes inherent in this rule, including but not limited to no limitations on refills, defeat and/or serve to gut the purpose of the rule."

Boards of health are supposed to protect the public. They are supposed to inspect restaurants to make sure the food is fixed and served under sanitary conditions.

But mayors and boards of public health are not supposed to limit serving sizes. That's between the customer and the restaurant.

As Tingling observed, "One of the fundamental tenets of democratic governance here in New York, as well as throughout the nation, is the separation of powers. No one person, agency, department or branch is above or beyond this."

This limit on whimsical executive actions is wise.

Obesity may be a problem in New York, but the biggest threat in the city is the supersized ego of its mayor.


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