by Tom Farley
In 2010 a network of lawyers called the Tobacco Control Legal Consortium began talking about laws to ban tobacco price discounts, and Vicki Grimshaw listened. When Kevin Schroth arrived, the discount ban was still just a raw idea. The two of them worked it into a bill that banned all three kinds of discounts and also set a minimum price.
Meanwhile Grimshaw, who spent time browsing in bodegas, discovered that the tobacco companies were getting creative with other forms of tobacco. “I found them selling two-for-sixty-nine-cents cigars,” she said. “That didn’t seem like a good idea when ‘loosie’ cigarettes have been illegal for a dozen years.” She and Schroth added to the bill two other ideas: a requirement that little cigars be sold in packs of at least four, and additional enforcement authority for the city to prevent stores from selling smuggled cigarettes.
By the time Schroth and Grimshaw had worked out the details of the bill with other city agencies and I had gotten the mayor’s approval, it was the summer of 2012. Bloomberg had less than eighteen months left in his final term. The City Council speaker Christine Quinn was leading the race to be the next mayor, and I was worried that she would avoid controversial bills during the election year. Our opportunity was closing fast. These two bills would be our last big swing at smoking.
16
“I hear that your mayor wants to ban soda!”
In late 2011, despite our painful losses on the soda tax and the SNAP proposal, we saw signs of hope. Our 2010 telephone surveys showed New Yorkers continuing to turn against sugary drinks, with daily consumption now down to 30 percent (from 36 percent in 2007). Surveys of high school students were likewise showing big drops in soda drinking. And then in the summer of 2011, we were stunned to see falls in obesity itself. The city’s public school system had begun weighing and measuring children in 2006, and by 2011, the proportion of children in elementary school who were obese had edged down from 21.9 to 20.7 percent. That wasn’t much of a fall, but coming after forty years of relentless rises in childhood obesity, it signaled a tidal shift. The younger the children, the faster the obesity rates were falling. We didn’t have dietary surveys of children, so we couldn’t explain the reversal, but something good was happening.
It was far too early to declare victory, though. New Yorkers were still gulping soda and wolfing down junk food, and rates of obesity and diabetes kept hitting new heights in adults. If we wanted to prevent thousands of New Yorkers from getting amputations or going on dialysis every year, we needed to press on. While we weren’t forgetting junk food, we took the hint of progress as a reason to push harder on soda. And as we took a third big stab at sugary drinks, we introduced an idea that was heard around the world.
In November 2011, Lynn Silver, Susan Kansagra, Maura Kennelly, Christina Chang, and about ten others filled the seats around a long conference table next to my office in our new headquarters. They were there to explain how we could limit the portion size for sugary drinks in restaurants. It was an odd meeting, because although the team had wrangled for months over the proposal, almost no one at the table—including me—expected it to see daylight. I was so skeptical about the politics that I was reluctant to even broach the subject in City Hall. But I felt I had to see the idea fleshed out.
Both Silver and Kansagra were there because Andy Goodman had just reorganized the Division of Health Promotion and Disease Prevention. Silver kept generating creative ideas, but she also continued to upset others in the agency. With my agreement, Goodman created a unit for policy development, with Silver in charge, and another that merged chronic disease prevention with tobacco control, with Kansagra in charge. I hoped the reorganization would play to Silver’s strengths, but she was very unhappy with it. Soon after the meeting she left the agency, and we lost one of our best thinkers.
Kansagra and Kennelly, who had become the department’s junk food expert, spoke for the group. They stressed that for years health leaders, from the U.S. surgeon general to Michelle Obama, had asked restaurants to voluntarily rein in their monstrous portion sizes—and failed. If restaurants wouldn’t restore human-size portions of this dangerous product on their own, they argued, we were obligated to set a reasonable limit. Despite what critics would say, appropriate cup sizes would not affect personal choice; nothing in the rule would prevent people from buying and drinking as much as they want.
The concept was simple, but as always, the details became very messy. The idea would have to run the gauntlet of City Hall, the Board of Health, the press, the soda companies, the restaurants, and the courts, so at every turn there were practical, political, and legal risks. The second-guessers would scrutinize, debate, and attack even the smallest decision. We needed strong reasons to defend each choice.
The rule would apply to drinks with added caloric sweetener that delivered more than 25 calories in 8 ounces. That would allow unlimited portions of pure fruit juices (which had nutritional value and were rarely sold in huge portions) and some new teas that had just a hint of sweetener.
Kennelly proposed to limit the sizes of bottles and cans to 12 ounces, which matched our standards for government vending machines. Even though that feels like a small portion of soda to many Americans these days, 12 ounces was plenty. It delivers more than 8 teaspoons of sugar, which according to the American Heart Association is at the upper limit of what men should consume and more than what women should consume in an entire day. But what about cups filled at soda fountains? As much as a third of the volume of a cup could be ice—something I later verified at a local McDonald’s. Kennelly proposed raising the limit for cups to 16 ounces.
I stopped her there. Ice was variable; when you filled your 16-ounce cup at a fountain, you didn’t need to add any ice at all. The soda companies, reporters, and lawyers would attack the rule as ridiculous if we had different limits for different containers. Make it 16 ounces for any container, I said. I also hoped that the bigger size might take some of the edge off the attacks.
Drinks containing alcohol would sink us into an entirely different regulatory morass. If a sugary drink was defined as having “added sweetener,” 32-ounce steins of beer would be allowed, but mega-size daiquiris wouldn’t. That sounded inconsistent. People knocking back daiquiris a quart at a time were risking more than diabetes, but that wasn’t the point of the rule. Ultimately, the lawyers ended that conversation. The state alcohol law preempted local governments from doing nearly anything on alcohol. If we included any alcoholic drinks, we’d lose in court. Our rule would have to allow mega-margaritas.
Only later did my chief of staff Kelly Christ pose a tougher question. What about drinks made of milk? McDonald’s had milk shakes, and Starbucks had Frappuccinos that walloped consumers with calories. But our health department encouraged people to drink more milk for the calcium and vitamin D. Milk-based drinks made up less than 3 percent of the drinks that people ordered at chain restaurants—too small a fraction to be very important. Drawing lines when writing a policy in a complex world always forces choices that appear irrational. We should draw it where the studies on obesity were pointing to, I said. Those studies focused on soda and fruit-flavored drinks—essentially sugar water—not on milk-based drinks. That meant we would allow big milk shakes.
We spent very little time debating what later became our biggest public relations problem: where the rule would apply. The 16-ounce cap would apply in all “food service establishments” that had permits from the health department: the city’s 24,000 restaurants, cafeterias, and snack counters (including those at baseball stadiums and movie theaters), as well as outdoor food carts and food trucks. Those were the businesses that we regulated, that our sanitarians inspected, and that were covered by the city health code. Those were the businesses that followed our trans fat rule. Grocery stores, on the other hand, were regulated by New York State, which preempts the Board of Health. For the most part, that distinction fit well with a portion limit. Restaurants sold soda for one person to drink at one meal. Grocery stores sold soda in 2- and 3-liter
bottles, but those bottles were to take home, share, and drink over time. Unfortunately, some stores licensed as groceries—like convenience stores—also sold “grab and go” bottles that people drank immediately. Our rule would not stop them from selling bottles larger than 16 ounces, and when a convenience store was next door to a restaurant, that looked inconsistent.
Although the rule applied to every restaurant, from the neighborhood pizza joint to the Four Seasons, the impact was almost entirely on chains like McDonald’s and Subway, where most drinks sold were bigger than 16 ounces. A small fraction of the independent restaurants sold drinks larger than that, and those were mostly delis that sold 20-ounce bottles but also carried 12-ounce cans. The “small business” independents would barely notice the rule.
Tom Merrill was firm that the Board of Health had the authority to write the rule. The health code micromanaged nearly everything that happened in restaurants, such as how long food could be kept at room temperature and what kind of materials cutting boards could be made of. As long as we had a strong health justification for every provision of the rule, it should stand up in court. “To me,” Merrill said later, “it was always about ‘Hey look, you’re a restaurant. This is how you’re going to serve this product.’”
Kansagra and Kennelly estimated that the portion cap could save 2,400 calories per person a year in New York City. That may seem small—a little over half a pound per person per year—but it was nearly one-third of the 1 to 2 pounds per year that New Yorkers on average were gaining. More important, those extra pounds didn’t fall fairly across New York City. Blacks, Latinos, the poor, and genetically predisposed people were gaining much more weight than others. Saving an average of 2,400 calories per New Yorker every year would be big—not as big as the impact of a penny-per-ounce soda tax but bigger than our estimated impact of the SNAP rule change.
Political debates can turn on metaphors. Susan Kansagra’s staff looked for other examples of government regulating portion sizes, and found them. Twenty-six regulated the sizes of containers of beer. Most states’ laws were meant to permit fair competition in the beer market, not to reduce beer drinking. But two states actually set upper limits for containers of beer: Florida set a cap at 32 ounces and Alabama at 16 ounces.
As Kansagra and Kennelly wrapped up, I saw a ray of hope. Simple policy concepts often crash on the rocks of practicality. It had taken them months, but my team had made the portion cap practical.
• • •
Deputy Mayor Linda Gibbs had become keenly interested in obesity. In early 2012 she convened a multiagency task force to plan how to respond but was a little disappointed that their first ideas felt small. That gave me an opening on the portion cap if I wanted it.
I spent a weekend debating with myself. If the rule were to survive the political and legal obstacle course, it would shine a light on the soda companies’ dangerous portion sizes, slow the epidemic, and possibly establish a whole new approach to obesity. Mayor Bloomberg had hired me to generate big ideas for big health problems, and this was one. On the minus side, the soda companies would attack us ferociously, and the press would stoke the controversy. If we lost, and maybe even if we won, our wounds might be large.
I didn’t for a moment view the portion cap as interfering with personal choice, because people could order and drink as much as they want, but I was hung up on whether it was an unfair burden to businesses. Then it hit me: not only could customers buy two cups at a time, businesses could sell two cups at a time. Restaurants could bundle, listing as a single menu item a 32-ounce “large” soda, as long as they delivered it in two 16-ounce cups. That would be a trivial workaround for businesses in return for slowing a killer epidemic. And the beauty was that the portion studies suggested that rule would work anyway, because the psychological default setting would still be one cup of 16 ounces. On this one, I thought, it was better to go down swinging then get caught looking.
“We heard you wanted bigger ideas,” I said to Linda Gibbs, sitting at one of the tables overlooking Bloomberg’s Bull Pen. “Well, here’s a big idea.”
“Uh-oh,” she said.
• • •
Not long afterward, sitting in a conference room in City Hall, I made the case to Mayor Bloomberg. Under the watchful eyes of the 1800s-era New York State governors whose portraits hung on the walls, I went through the research on portion sizes and the refilling-soup-bowl study. I also showed him a 1950s-era ad that shows a woman pouring Coke from a tall bottle at a table with three place settings. “Serves 3 over ice—nice!,” the caption read. “Big 16 oz size.” A short time ago, I argued, Coke advertised a 16-ounce bottle as big enough for a family of three, so how could it be wrong to limit single portions to that size?
Bloomberg immediately thought about it from the restaurants’ point of view. They should just shrink their drinks to 16 ounces and charge the same amount, he said. Could restaurants offer a buy-one-get-one-free in 16-ounce cups? They could, I said, and the rule would still work. Why don’t we regulate grocery stores just as we regulate restaurants? he asked. Preemption, I said.
I could see that he was seriously considering the idea. Like Frieden with the Smoke-Free Air Act a decade earlier, I thought I owed him a little warning. “This will be controversial,” I offered. He laughed. “Oh, you figured that out?”
And then he asked for time to think about it.
• • •
On May 22, 2012, we sent the draft portion rule to the city’s Law Department for vetting, and the next day I opened an e-mail that made my heart sink. A reporter from the Post had called our press office to say had heard from an inside-government source that we planned to regulate portion sizes for sugary drinks. Reporters often said they had information that they really didn’t as a way of prying out more, so I wasn’t sure what this reporter knew, but he had hit the topic dead center. We couldn’t deny that we were considering a portion cap to him and then announce the rule to the city soon afterward. We had to either kill the idea or announce it.
The scramble to respond brought in the City Hall press office, which was united in hating the idea. To those whose job it was to get flattering stories about the administration, the basic concept looked awful—heavy-handed, nanny-state stuff—and the details even worse. They were upset that someone would be able to buy a 20-ounce bottle of soda from a bodega but not from the deli next door. Or worse, someone could get a giant “Big Gulp” at a 7-Eleven store, which was licensed as a grocery. There were only a few dozen 7-Elevens in New York City, compared to 24,000 licensed food service establishments, so the health impact was negligible, but the symbolism mattered. The press office begged Howard Wolfson to kill the idea, but it was too late. Wolfson also strongly opposed the idea and had argued forcefully against it, but by now the mayor was firm.
Early the next week we met with Wolfson to strategize on the press and the politics. He was boiling over. “How many industries do you guys want to take on?” he yelled. “The restaurants, the soda industry, the movie theaters, the stadiums? . . . Do you know how much money they can throw at this?” He looked around the conference table. “How many people are there in this room?” He counted and then stopped, having made his point. All those industries versus seven of us.
The next day Bloomberg did exclusive interviews with reporters from the Post, which the press office had promised in return for their holding the story for a few days, and the Times. “Obesity is a nationwide problem,” the mayor told the Times reporter, “and all over the United States, public health officials are wringing their hands saying ‘Oh, this is terrible.’ New York City is not about wringing your hands; it’s about doing something.” For the interviews, Kelly Christ had arranged on the conference table soda cups in sizes ranging from 7 to 64 ounces, then stacked in front of each cup pyramids of sugar cubes showing how much sugar each one held. Even the stack of nine sugar cubes in front of the 7-ounce cup was impressive. The pyramid in front of the 64-ounce cup from KFC was a stunning 12 row
s high and contained 87 sugar cubes. In pictures that flew around the globe, Bloomberg is standing behind the stacks, looking feisty.
The Times headline was “NEW YORK PLANS TO BAN SALE OF BIG SIZES OF SUGARY DRINKS.” The Post called the rule a “limit,” and the Journal a “restriction,” but after the Times used the word ban, the terrible label stuck.
When those stories hit, the media exploded. News outlets acted as if we literally planned to ban soda. The next day so many reporters wanted interviews that Howard Wolfson, Linda Gibbs, and I had to lead an impromptu press conference in the Blue Room to respond to all of them at once. At the last minute we decided to re-create the sugar-cube display, so while a posse of reporters pressed against the door, Kelly Christ (now eight months pregnant) patiently restacked the pyramids.
Once we opened the door, the press packed the room. Photographers sprawled on the floor to get pictures of the sugar cubes. Reporters jumped out of their chairs and shouted questions, the topics of which ranged from bike helmets to National Doughnut Day. When we finished, reporters rushed the front of the room for more. One reporter from a Spanish-language television station breathlessly asked me who would be allowed to order two portions. “It would have to be two persons, right?” No, I assured her. Under the rule, one person could order two—or even more—drinks.
