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New York’s Proposed “Ban” On Large Sugary Drinks: An Infringement on Our Legal Rights … Or Really Just a “Nudge” In the Right Direction?

Mayor Bloomberg’s proposal to ban the sale of large-sized sugary drinks – the so-called “soda ban” – has been met with anger by some, skepticism by many … and will surely continue to be a topic of debate for months to come.  The proposal would prohibit the sale of large (more than 16 ounce)  sodas and other sugary drinks at restaurants, movie theaters and delis (but not in big box stores – a provision that critics point out as a major flaw).  From a libertarian standpoint, the proposal sounds like just another “Big Brother” mandate preventing people from making their own health choices.  As a general principle, we’re opposed to continued growth of the “Nanny State.”

But we also recognize that the obesity epidemic is having a startling impact on our society, not only making people sick but also imposing a tremendous financial burden and driving up health care costs.  Obesity is having a negative impact on all of us, and many nutrition experts claim that the excessive consumption of sugary drinks is a prime culprit. So, helping consumers to make better dietary choices benefits all of us.  But what’s the best way to do it?

Readers and followers of Nudge: Improving Decisions About Health, Wealth, and Happiness (www.nudges.org) know how sometimes a gentle “nudge” can positively change behavior when it comes to making healthier decisions.  The general idea is that a nudge is better than a sledgehammer in having a long-term positive impact on conduct, and is better suited to a free society.  The sledgehammer of Prohibition of alcohol created a tangle of serious problems in the 1920’s, and the Drug War has done the same.  Attaching modest restrictions or conditions can discourage undesirable behavior without the fallout created by making something outright illegal and attaching severe criminal penalties to it – for example, limiting the areas where smoking is permitted rather than banning tobacco.

Isn’t Bloomberg’s proposal, then, more of a nudge than a sledgehammer?  It’s intended to set limits, sure – but it is far from banning the consumption of these drinks.  Those consumers hell-bent on guzzling a ton of carbonated sugar water could still do so – either by shopping elsewhere or by simply buying multiple containers.  There may well be flaws in the details of the proposal, but the general concept may not be so terrible.

We may be commenting further on this issue as Mayor Bloomberg’s proposal continues to make its way through the approval process – and continues to make news here in New York (as well as cities everywhere that are closely watching what happens here..).  In the meantime, maybe we should think about how other issues – such as the drug and alcohol problem – could also benefit from this approach rather than more severe regulations and punishments … and how setting limits with a gentle “nudge” might be just what the public needs.

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