Is Sugar the New Tobacco?
How to Regulate Toxic Foods
Barbara L. Atwell*
“I have eliminated refined sugar from my diet. .. . Ultimately, it’s
something I can do to decrease my risk of cancer” 1
In May 2012, New York City’s mayor Michael Bloomberg announced a
proposed ban on the sale of sugary drinks in excess of 16 ounces at certain
establishments like movie theatres, restaurants and other food service
facilities. 2 This has provoked controversy, with detractors arguing that the
proposed ban constitutes governmental interference with the basic freedom
to choose what to consume, 3 and supporters countering that it is a creative
public health initiative. 4
*Associate Professor of Law and Director of Diversity Initiatives, Pace Law School. I am
grateful to Andrew B. Hurst for his assistance with this article.
1. Gary Taubes, Is Sugar Toxic?, N.Y. TIMES, Apr. 13, 2011, available at
(quoting the president of Memorial Sloan-Kettering Cancer Center); see also JEFF
O’CONNELL, SUGAR NATION: THE HIDDEN TRUTH BEHIND AMERICA’S DEADLIEST HABIT AND
THE SIMPLE WAY TO BEAT IT 79 (2010).
2. N. Y. C. DEP’T OF HEALTH & MENTAL HYGIENE, NOTICE OF PUBLIC HEARING (June 5,
establishments.pdf; see also Michael M. Grynbaum, New York Plans to Ban Sale of Big
Sizes of Sugary Drinks, N.Y. TIMES, May 30, 2012, available at http://
drinks.html [hereinafter New York Plans Ban] (noting that the ban would also apply to street
carts, but would not apply to sugary drinks sold in grocery or convenience stores); see also
Michael M. Grynbaum, At Starbucks, Uncertainty Over Impact of Bloomberg’s Drink Plan,
N.Y. TIMES, June 12, 2012, available at http://www.nytimes.com/2012/06/13/nyregion/at-
starbucks-uncertainty-over-mayors-drink-plan.html?_r= 1 (noting that drinks with more than
fifty percent milk are exempt, as are fruit juices).
3. Some have referred to the proposal as an example of the “nanny state.” Frank James,
Bloomberg Becomes Nanny-State Epitome for Some, Giving Obama A Breather, NAT’L PUB.
RADIO (May 31, 2012, 3: 41 PM), http://www.npr.org/blogs/itsallpolitics/2012/05/31/
see also Bloomberg Has Better Idea to Tackle Obesity, PHILLY.COM (June 3, 2012),