The New England Journal of Medicine (NEJM) has published two “Perspective” articles in its April 3, 2013, issue, commenting on the recent ruling by Judge Milton Tingling overturning the New York City Board of Health’s restrictions on the size of sugary drinks sold at certain city establishments—the “Portion Cap Rule.” Details about the ruling are included in Issue 475 of this Update.

Attorneys Wendy Mariner and George Annas with the Boston University School of Health opine in “Limiting ‘Sugary Drinks’ to Reduce Obesity— Who Decides?” that the court was likely correct in ruling that the Board of Health lacked the authority to adopt the rule given a court of appeals ruling overturning indoor smoking rules after examining “the difficult-to-define line between administrative rulemaking and legislative policymaking.” They contend that higher taxes on all soda sales would be a reasonable alternative to the Portion Cap Rule, noting that “[h]igher prices often discourage consumption.” Observing that the rules’ enactment was widely ridiculed, including by comedian Jon Stewart, the authors conclude, “Agencies that overstep their bounds or adopt rules that are intrusive or just plain silly invite backlash, which can make effective public health regulation impossible. They make fools of themselves and heroes of the opponents of public health.”

Meanwhile, Amy Fairchild, a professor of sociomedical sciences at Columbia University, explores in “Half Empty or Half Full? New York’s Soda Rule in Historical Perspective” the history of public health initiatives that succeeded by focusing on both environmental and social conditions.

According to Fairchild, the city’s tenements and neighborhoods were cleaned up in the late 19th and early 20th centuries when “an alliance of public health, labor, social, and housing reformers organized to get garbage, filth, and the accompanying microbes off city streets, out of water supplies, and out of the fetid halls of tenement buildings.” They also “sought to confront unfair labor practices, hazardous working conditions, child labor, and ‘slave wages’ that made the poor as a class susceptible to disease.”

The author reports that public health efforts then turned from social reform and industrial regulation to target “the germ” and “individual behavior.” She sees this turning point and the “century-old struggle” between effecting change through an alternating focus on individual and corporate behavior “playing out again in the case of the giant-soda ban.” While she agrees with Mariner and Annas that a tax on sugary beverages would “effectively limit our individual ability to drink ourselves silly,” she characterizes Mayor Michael Bloomberg’s initiative as an appropriate focus on corporate behavior. She states, “if Bloomberg is bent on appealing Tingling’s ruling, it is time to start making a case with some muscle, which will require strong, active support from the medical and public health communities. If we can challenge the industries and businesses that profit by promoting bloated serving sizes, perhaps we can take on other corporate enterprises that similarly contaminate our social environment.”