Count Soledad O'Brien as another CNN fan of Mayor Bloomberg's
nanny state crack down on big sodas. Even while reporting on the law's demise at the hands of the New York Supreme Court on Tuesday's Starting Point, O'Brien revealed that she's been "a long supporter of it."
"I've been a long supporter of it. I actually think it's a good idea. But I do think the judge has some interesting points," O'Brien said of the ban, which was struck down by the New York Supreme Court on Monday. On Monday night, CNN's Piers Morgan defended  the city's ban on the sale of sugary drinks over 16 ounces.
[Video below. Audio here .]
O'Brien interviewed both NYC health commissioner Dr. Thomas Farley, who
supported the law, and Andrew Moesel of the New York Restaurant
Association, who opposed the ban. Although she played devil's advocate
with both guests, she was particularly pointed with Moesel.
"So, those bigger drinks are connected to just taking in more calories, they're also connected in those calories are unhealthy calories," she told Moesel after citing "research" that "supported" Farley's take.
"So, in a way, congratulations on the victory, but aren't you standing up for something that ultimately is unhealthy for children and adults, too?" she obnoxiously asked Moesel.
O'Brien also threw out a sloppy analogy, comparing large sodas to driving without seatbelts, as if both contained the same amount of danger and risk. "The reality is that, you know, most of us wouldn't put on seatbelts, unless we were aware that there was a law that said we had to, and so, we do that," she argued.
A transcript of the segments, which aired on Starting Point on March 12 starting at 7:16 a.m. EST:
SOLEDAD O'BRIEN: Walk through with me the judge's ruling. You said you
were pretty surprised. You thought you kind of had this victory in hand.
DR. THOMAS FARLEY, health commissioner, New York City: Basically the judge said that the Board of Health doesn't have the authority to put in place this regulation. Our lawyers think he's wrong on the law. And more importantly, he's wrong on health.
O'BRIEN: He also says this, it applies to some but not all food establishments in the city. It excludes other beverages that have significantly higher concentrations of sugar, sweeteners and/or calories on suspect grounds, and the loopholes inherent in the law include, but not limited to, no limitations on refills, defeat and/or serve to gut the purpose of the law. So he also sort of said – and I guess that's an extension of "it's capricious." There are so many loopholes in this, that this law wouldn't even work, was basically part of the gist of his argument.
FARLEY: Obviously we disagree. The Board of Health put in place a rule for banning trans fats in restaurants, and that likewise had some complexity to it. The Board of Health regulates what it can. And it did what it can here and it was very appropriate. Again our lawyers think we're going to win on appeal. But more important, this is really crucial for health. We have a major problem with obesity in New York City.
O'BRIEN: That's two different arguments. So let's talk about the appeal first. What makes you think you can win on appeal? Or would you extend the ban, which some have suggest – even the judge himself actually felt that the ban because it was limited was problematic in your -- in the ruling anyway, so would extending the ban work and is that part of the appeal?
FARLEY: Well first of all it's not a ban. It's just a cap on container size. And so we're very supportive of it. The appeal is going to say that the Board of Health does have the authority to do this. And we think the appeals courts, when they look at this and they look at the history of the Board of Health, will recognize it does. The Board of Health banned lead in paint in 1959. If we didn't have authority to do that we'd still have lead in paint.
O'BRIEN: Right. Part of the argument of the judge was, and let's continue with the lead in paint metaphor if you would like to, there's not a store where you can buy lead in paint next to a store where you can't buy lead in paint. What this judge is saying is a 7-Eleven would be exempt and could sell whatever they want next to a Korean grocery store, which we have a zillion here in New York City, where they would actually be limited under the health department laws. So that's what he's sort of pointing to the capriciousness. So would you extend the limitation so that something like the 7-Eleven would also not be able to sell the larger sugary drinks?
FARLEY: The Board of Health doesn't regulate convenience stores or grocery stores. That's one of the realities that the Board of Health had to deal with when it came up with this rule. Just because the rule doesn't cover everything doesn't mean it shouldn't cover the most important thing that it can regulate, and that's something that's important from a health perspective that's also true legally.
O'BRIEN: We're going to be talking to the restaurant's association later and they said, listen, one of their big problems – and again, lobbying, right? But one of their big problems is that they don't feel like they're partners in this. They feel like the city is trying to tell them what to do and that ultimately the better way to reach healthier options for people in the city is not to dictate something where, by the way, you could go and just pick up five different sodas and get that large number of sodas if you wanted to.
FARLEY: Well the restaurant association doesn't like any of the regulations we put forth. They don't like the letter grading, they don't like the fact that we inspect them to make sure that their temperatures are the right – or that their refrigerators are the right temperature. But we do that to protect the health of the customers and New Yorkers overall support that.
O'BRIEN: Interesting. One of the things that the Mayor said to David Letterman was this. Listen.
BLOOMBERG: I think that it is incumbent on government to tell people what they're doing to themselves and then let people make their own decisions. So our job is to educate people.
(End Video Clip)
O'BRIEN: So there are people who would say the ban is not that. The limit is not educating people. The limit is literally not allowing them to purchase something. It's kind of the opposite of what the Mayor was telling him.
FARLEY: I disagree. Right now if you want 32 ounces of soda you can buy 32 ounces of soda. Under this rule in the future, if you want 32 ounces of soda you can get 32 ounces of soda in two cups. That just simply is a little reminder that maybe this is beyond what you should be eating but you can certainly consume that and buy it. And the restaurants can sell that.
O'BRIEN: What happens? What's the plan in terms of like a timeline for the appeal?
FARLEY: The city will be filing an appeal. I don't exactly know the timing but sometime in the next few months, a board of appeals judges, five judges, will rule on this. And again, our lawyers have looked at this very closely before we even put the rule in place and we're confident we have -- that the Board of Health has the authority to do this.
O'BRIEN: We'll see. It will be interesting. I've been a long supporter of it. I actually think it's a good idea. But I do think the judge has some interesting points. We're going to talk to the restaurant association a little bit later this morning. As you know they completely disagree with you. So it will be interesting to hear what they have to say. Thanks for talking with us.
SOLEDAD O'BRIEN: The part of the argument about health which Dr. Farley referred to at the end, has been supported by research, right? I mean, there's a new study out, I have it here, right, which is this one. University of North Carolina Chapel Hill actually comes out today, embargoed until today, this morning. "Sugar-sweetened beverages are primarily responsible for higher caloric intakes that children consume compared to kids that don't. In addition, those beverages are associated with higher intake of healthy foods." So, those bigger drinks are connected to just taking in more calories, they're also connected in those calories are unhealthy calories. So, in a way, congratulations on the victory, but aren't you standing up for something that ultimately is unhealthy for children and adults, too?
ANDREW MOESEL, spokesman, New York Restaurant Association: Well, the one thing that our association, the restaurant industry and the Mayor and the commissioner agree on is that education is really the best way to solve this problem. Obesity is a big problem in this country. The restaurant industry has taken a lot of voluntary steps to address it. We think the government does have a place in fighting this problem, but we think it's been enabling people to make healthy decision by themselves.
O'BRIEN: Yes, but people often don't, right? The reality is that, you know, most of us wouldn't put on seatbelts, unless we were aware that there was a law that said we had to, and so, we do that. Or, people who wanted to smoke would go ahead and smoke in a New York City restaurant until there's a law that says, in fact, you now have to smoke outside. So, sometimes, we enhance what is a good decision or healthy decision by telling people these are the rules.