City health commissioner Thomas Farley underscored this point. “These chronic conditions now cause a higher toll of preventable human suffering than even the most prevalent communicable diseases,” he testified in a Nov. 9 affidavit. “Their burden also uses more of society’s resources.”
That, too, was true. But the department didn’t stop there. In a brief filed on Nov. 9, it claimed that the complexity of chronic diseases made the task of controlling them a matter of technical expertise. The department argued that state legislators who initially chartered the board of health “could not have foreseen … the specific need for regulations concerning portion caps for sugary beverages to fight obesity and chronic diseases.” Accordingly:
“Because of the complexity and difficulty of the issues involved with supervising the control of chronic disease and supervising and regulating the City's food supply and food service establishments, the Legislature has delegated regulatory authority to the Department and the Board as they have the specialized knowledge and expertise to effectively deal with such matters.”
In other words, obesity, diabetes, and cardiovascular disease are so scientifically convoluted that only the health department is qualified to manage them. Experts, not legislators or citizens, must decide how big a soda can be.
That’s a huge mistake. The factors that make chronic disease trickier than communicable disease involve more than biological science. They involve social science. What you eat, how much exercise you get, and how much stress you endure are matters of lifestyle, economics, and culture. They touch on corporate marketing, mass media, and personal responsibility. To address these problems wisely and within reason, you need a broader perspective. You need to understand people, their values, their foibles, and the limits of what we can or should do for one another.
In his ruling on Monday, the judge rejected the health department’s assertion of sweeping authority over chronic illness. The history of the department’s charter, he wrote, showed that its mandate was to “prevent and protect against communicable, infectious, and pestilent diseases.” The board of health could regulate the food supply, he conceded, but only “when the City is facing eminent [sic] danger due to disease. That has not been demonstrated herein.”
The judge was right about the past. But he’s wrong about the future. The reason chronic disease doesn’t look like an imminent threat, in the old-style sense, is that it doesn’t attack with the same speed as most communicable diseases. The onslaught isn’t imminent. It’s already here. If bureaucrats have no unilateral authority to restrict portion size—and I agree that they don’t—we need to figure out how to promote portion control and other good habits in ways that are effective, legally sound, and socially accepted. Limiting government’s power isn’t the end of the struggle. It’s just the beginning.
William Saletan's latest short takes on the news, via Twitter: