2013-03-11 22:57:32 - WASHINGTON, D.C. (March 11, 2013): A lower court ruled that New York City cannot ban the sale of sugary soft drinks in large beverage containers, but the concept is likely to emerge - and possibly be enacted - in other jurisdictions where it will avoid the major problems cited by the judge, predicts public interest law professor John Banzhaf, the lawyer who is leading the battle against obesity with legal action.

The major thrust of the ruling is based upon the unique attributes of the New York City Board of Health. For example, its jurisdiction here was limited to food service establishments: restaurants, mobile food carts, delis, and concessions at movies. Thus it appeared inconsistent and illogical to the judge that someone could buy a 64 oz. big gulp at 7-11, but no more than 16 oz. at a movie theater.

The Board of Health is also not an elected body, so the judge determined that they did not have the power to adopt such a sweeping prohibition. His ruling makes it clear, though, that the New York City Council would have that power, as would the city councils in Cambridge,

Massachusetts, and Washington D.C., as would the New York State legislature - all of which are expected to consider such legislation.

Other apparent inconsistencies cited by the judge could probably be corrected in a revised version of the regulation if the judge's ruling survives on appeal. For example, the ruling's exemption for milk products could be taken out of any new legislation.

"Limiting the size of containers in which sugary soft drinks can be served is a good way to fight obesity, and is less intrusive than other measures which have been proposed, such as higher taxes, banning their sale to children, keeping them out of vending machines, etc.," says Banzhaf, who inspired and appeared in the award-winning movie "Super Size Me" about oversized servings.

Obesity costs the American economy over $100 billion each year - more than the amount involved in the sequester - and is paid by mainly by people who are not obese in the form of higher taxes and inflated health insurance premiums. "It's time to tackle this issue like the massive problem it is, rather than than hoping against hope that things will suddenly change," says Banzhaf.

Banzhaf has also been called the lawyer "Who's Leading the Battle Against Big Fat," "The Man Big Tobacco and Now Fast Food Love to Hate," and "a Major Crusader Against Big Tobacco and Now Among Those Targeting the Food Industry."

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418
banzhaf.net/ @profbanzhaf