For those Fog of Law readers who are living in a cave: New York City Mayor Michael Bloomberg proposed a ban on large sizes of soda. The local government justifies the ban thus:
“Obesity is a crisis this City cannot afford to ignore.” said Health Commissioner [Thomas A.] Farley. “If a virus were killing 5,800 New Yorkers in a single year, people would be clamoring for government action to stop it. The fact that obesity kills that many year after year only increases our duty to respond.”
Assuming arguendo that obesity does kill almost six thousand New Yorkers annually and that banning soda would appreciably change that number (rather than merely making it difficult for eight million residents and workers to obtain the beverages of their choice, enforced via more bureaucracy and fines), the government’s analogy still fails.
Viruses, plagues, and pestilence demand government attention because they affect the entire population, not merely the affected person. The right of “every freeman to care for his own body and health as in such way to him seems best”* may yield to a law to ensure that other people are also able to care for their own bodies, or an emergency that presents a grave threat to the public health; a pestilence-ridden human is a danger not just to himself, but to others. Public schools require vaccinations and an annual check-up to ensure that the pupil is in good health and able to obtain the benefits of an education, and to prevent that pupil from infecting his peers and shutting down the school in the face of a plague. Adults and children may be forced to be vaccinated so that herd immunity prevents the spread of disease. Inebriation is permissible; drunk driving is not. Even the heavy-handed smoking bans do not ban cigarette sales nor smoking; they merely ban smoking in areas where other members of the public have little choice but to refuse to use public school or to inhale the carcinogens.
None of that logic applies to a ban on soda. There mere existence of a large bottle of soda does not induce diabetes in passerby; one person’s purchase does not compel another to purchase and consume the same. One person’s obesity does not trigger an epidemic of bad eating habits, type II diabetes, or unchecked weight gain. There is some research to suggest that people mimic the behaviour of their peers, and obesity will occur in clusters of friends and co-workers, but such simply cannot be likened to pestilence nor of sharing the road with a drunken sot who cannot steer properly.
*Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905).