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New York City Appeals Tingling Decision

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Mayor Bloomberg has petitioned the court of appeals to reinstate the ban on supersize sodas previously lifted by the state Supreme Court. A NYC lawyer argued that the ban is supported by decades of case law, as well as the NYC charter itself.

Various parties filed amicus curiae (friend of the court) briefs in support of the NYC ban. One such, the National Alliance for Hispanic Health, argued a scientific link between the sugary soft drinks and chronic illnesses such as obesity. The National Association of Local Boards of Health and a number of other organizations also argued in support of the ban. At the federal level, organizations charged with public health and safety have considerable discretion, as long as their decision is not “arbitrary and capricious.”

A constellation of other groups support reinstatement of the ban, including the New York chapter of the National Congress of Black Women and the Public Health Association of New York. Generally, the appellate court may consider an amicus brief if the contents will serve to clarify an important legal point or interpretation.

The arguments for the ban on large size sugary sodas go beyond the obesity issue, addressing points dealing with other health issues as well. For example, supersized sodas contain more than twice the acceptable daily sugar allotment. As a result, these substances, when taken in quantities beyond the 25-37 gram daily sugar allowance, will contribute toward diabetes. A 16 ounce container of soda will have up to 75 or 80 grams of sugar; more than twice the daily sugar allotment.

Glycemic Index Labs  performs highly sensitive tests to provide the data on the impact of excess carbohydrates on the blood chemistry and vital body systems. Examples of tests perforrmed are:

To prove its claims further, the City of New York could provide the appellate court with the blood chemistries of children consuming the eight ounce sugary sodas versus the 16 ounce sugary sodas. These tests should prove the City of New York claims conclusively.

In summary, the New York Department of Health has the responsibility for public health and safety. The department is within its authority to institute a ban, as long as the rationale is not “arbitrary and capricious”.


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About Dr Joseph S Maresca

I've taught approx. 34 sections of collegiate courses including computer applications, college algebra, collegiate statistics, law, accounting, finance and economics. The experience includes service as a Board Director on the CPA Journal and Editor of the CPA Candidates Inc. Newsletter. In college, I worked as a statistics lab assistant. Manhattan College awarded a BS in an allied area of operations research. The program included courses in calculus, ordinary differential equations, probability, statistical inference, linear algebra , the more advanced operations research, price analysis and econometrics. Membership in the Delta Mu Delta National Honor Society was granted together with the degree. My experience includes both private account and industry. In addition, I've worked extensively in the Examinations Division of the AICPA from time to time. Recently, I passed the Engineering in Training Exam which consisted of 9 hours of examination in chemistry, physics, calculus, differential equations, linear algebra, probability/ statistics, fluids, electronics, materials science/structure of matter, mechanics, statics, thermodynamics, computer science, dynamics and a host of minor subject areas like engineering economics. A very small percentage of engineers actually take and pass the EIT exam. The number has hovered at circa 5%. Several decades ago, I passed the CPA examination and obtained another license in Computer Information Systems Auditing. A CISA must have knowledge in the areas of data center review, systems applications, the operating system of the computer, disaster recovery, contingency planning, developmental systems, the standards which govern facility reviews and a host of other areas. An MBA in Accounting with an Advanced Professional Certificate in Computer Applications/ Information Systems , an Advanced Professional Certificate in Finance and an Advanced Professional Certificate in Organizational Design were earned at New York University-Graduate School of Business (Stern ). In December of 2005, an earned PhD in Accounting was granted by the Ross College. The program entrance requires a previous Masters Degree for admittance together with a host of other criteria. The REGISTRAR of Ross College contact is: Tel . US 202-318-4454 FAX [records for Dr. Joseph S. Maresca Box 646 Bronxville NY 10708-3602] The clinical experience included the teaching of approximately 34 sections of college accounting, economics, statistics, college algebra, law, thesis project coursework and the professional grading of approx. 50,000 CPA examination essays with the American Institute of Certified Public Accountants. Additionally, membership is held in the Sigma Beta Delta International Honor Society chartered in 1994. Significant writings include over 10 copyrights in the name of the author (Joseph S. Maresca) and a patent in the earthquake sciences.
  • Dr Joseph S Maresca

    The title of this article was changed from my original submission. The title should say that NYC filed an Appeal to overturn a lower court ruling which indicated that the City could not restrict sugary 16 ounce sodas. Various parties filed Amicus briefs to concur with NYC and instruct the Court of Appeals on the dangers of consuming excess sugary sodas.

  • G l e n n C o n t r a r i a n

    Either way, Bloomberg’s heart is in the right place, but he’s going about it the wrong way. He should have taxed the heck out of sodas and especially big sodas, and his reasoning should have been to repay the taxpayers since all too often we wind up paying for the diabetes and associated health problems people get from our national diet.

  • roger nowosielski


    then your title would have been almost as long as you article . . .

  • Dr Joseph S Maresca

    I agree completely with Glenn on the taxation issue-then we could have a single payor plan. The City of NY should win this case because the health department is charged with the responsibility for the health of the citizenry.

  • Clav

    The Washington Examiner, in an op-ed piece penned by Tim Carney, notes:

    “Bloomberg’s “data-driven approach” to banning soda involves silly numbers games. After the court ruling voiding the ban (and calling it “capricious”), Bloomberg fired back that “Five thousand people will die of obesity this year in New York. The best science tells us that sugary drinks are a cause of obesity.”

    Bloomberg also likes to cite a study by a Harvard University postdoctorate fellow estimating how many people die from sugary drinks. That author concluded “about one in every 100 deaths from obesity-related diseases is caused by drinking sugary beverages.” Multiply those purported 5,000 obesity-related deaths by the 1-in-100 number from Harvard and you get 50 soda-related deaths in New York City. Subway trains killed more people in NYC last year. More people were murdered in Brooklyn’s Crown Heights alone.”

    So it would seem that Mayor Bloomberg’s decision to ban the super-size sugary drinks is based on faulty “science,” without any foundation in real science.

    “Five thousand deaths” from sugary drinks this year??


    Judge Tingling’s decision should stand

  • Dr Joseph S Maresca

    Generally, the Departments of Health have the responsibility for public health and safety.
    This is the “arbitrary and capricious” standard in the federal law. The courts will follow this standard. Also, Mayor Bloomberg is not discussing the harm of excess soda to diabetics and pre-diabetics.
    There is also a link of the excess sugar to the pancreatic cancer. I believe that the Amicus briefs will do a better job of explaining the damages to the Appeals Court and ultimately to the United States Supreme Court. Even the conservatives on the high court are bound by the federal precedent.

  • pablo

    Post 2

    “Either way, Bloomberg’s heart is in the right place, but he’s going about it the wrong way. He should have taxed the heck out of sodas and especially big sodas, and his reasoning should have been to repay the taxpayers since all too often we wind up paying for the diabetes and associated health problems people get from our national diet.”

    This is a typical statement of someone that promotes socialism and why it is so inherently dangerous to individual liberty.

    Under this belief system literally anything that the state deems to be unhealthy, and thus the taxpayers have to pick up the tab when the disease or ailment manifests itself, becomes fair game for the limitation of liberties. Yes the liberty to drink tons of sugar.

    Indeed under this premise there is literally no personal habits that cannot be limited by government.

    This is the true cost of collectivism, that because the taxpayer (state) must pay for behavior that becomes costly to it any type of personal activity (liberty) can be prohibited. I would hardly call that freedom or constitutional in any sense of the word, and will always lead to totalitarianism.

  • Zing zing

    Somehow, the leap from big gulplessness to totalitarianism seems rather strained to me. Not that the disputed law isn’t a stupid waste of time. Could we not take this back to court and send the saved public funds to diabetes research? There are bigger, fatter, more disgusting problems in the world.

  • G l e n n C o n t r a r i a n

    pablo –

    This is a typical statement of someone that promotes socialism and why it is so inherently dangerous to individual liberty.

    Really? Would you care to show me such a nation that has the degree of individual liberty that you expect, that is not a third-world nation?

  • Dr Joseph S Maresca

    Excess consumption taxes on sodas will help to pay for the cost of Medicaid for the poor who suffer from the childhood diabetes and other maladies made worse by the sugary sodas.

    In addition, there will be a performance impact in the schools due to the childhood diabetes. i.e. lower ELA, Math and even SAT scores later on