Annals of Health Law
HOW TO REGULATE TOXIC FOODS
sugary products is the political backlash likely to occur193 that could nullify
its impact. At a time when much of the population is concerned with too
much governmental regulation, the quest for freedom would make age
restrictions unlikely to succeed. 194 Ideal regulations will focus at the level
of production and limiting availability of unhealthy products in the first
place. Even Mayor Bloomberg’s proposal to limit the size of sugary drinks,
which arguably is less intrusive than age restrictions, is nonetheless
Mayor Bloomberg’s limit on container sizes of soft drinks is a creative
approach to tackling the sugar problem. 196 Portion sizes have grown over
the years, embracing the notion that bigger is better. 197 The original Coca-Cola bottle was 6. 5 ounces. 198 From there it went to ten ounces, then to the
twelve ounce can, and now the standard twenty ounce bottle—more than
three times the quantity of the original bottle.199 It is common knowledge
on the part of anyone entering a grocery store, that finding a soft drink less
than twelve ounces is difficult, limiting consumer choice. Therefore, even
193. Given the strong objections to relatively mild forms of regulation, like a soda tax or
size restrictions, age requirements, which impact free choice much more directly, would
likely be subject to a great deal of opposition.
194. First Lady Michelle Obama, for example, was criticized for her initiatives designed
to combat childhood obesity. While she did not suggest laws restricting choice, some
suggested that the government should not involve itself in any way in what we choose to eat.
See, e.g., James Oliphant, Conservatives Dig Into Michelle Obama’s Anti-obesity Campaign,
L. A. TIMES, Feb. 26, 2011, available at http://articles.latimes.com/2011/feb/26/nation/la-na-
195. See supra note 3 and accompanying text.
196. NOTICE OF PUBLIC HEARING, supra note 2. Virtually all snack foods have gotten
larger over the past 50 years—candy bars, bagels, muffins —yet we eat these products and
think that eating just one is reasonable. But eating one today is often the equivalent of 2 or 3
several years ago. Cf. Lisa R. Young and Marion Nestle, The Contribution of Expanding
Portion Sizes to the U.S. Obesity Epidemic, 92 AM. J. PUB. HEALTH 246 (Feb. 2002),
available at http://ajph.aphapublications.org/doi/pdf/10.2105/AJPH.92.2.246. Ironically,
while efforts are being made to reduce the size of sugary beverages, cigarettes cannot be sold
in packages of less than 20 cigarettes. If you want one, you must purchase another 19, which
seems counter-intuitive. From a public health perspective, the cigarette purchaser should be
permitted to buy just one. On the other hand, requiring the purchase of a full pack keeps the
price high and is will arguably discourage use.
197. Definition of “the bigger the better”, CAMBRIDGE DICTIONARIES ONLINE,
http://dictionary.cambridge.org/dictionary/british/the-bigger-the-better?q=the+bigger+the+better#the-bigger-the-better__ 1 (last visited Dec. 8, 2012).
198. History of Bottling,THE COCA-COLA CO., http://www.thecoca-colacompany.com/
ourcompany/ historybottling.html (last visited Dec. 9, 2012).
199. Brian Palmer, When Did Sodas Get So Big?, SLATE (Sept. 14, 2012, 2:03 PM),
n_when_did_soft_drinks_get_so_big_in_the_first_place_.html; See also NOTICE OF PUBLIC
HEARING, supra note 2. In addition, coca-cola and other sodas have high levels of sodium,
which, as the companies know, makes people thirsty. This, they hope, will lead to higher