Mayor Bloomberg’s proposed ban of sugary drinks larger than 16 ounces has been making national news. Industry groups are lined up against it, and 64% of New Yorkers are opposed to it. The industry is organizing opposition around the concept of “freedom of choice”. Jon Stewart has repeatedly made fun of the fact that in New York, carrying 25 grams of marijuana is now “legal” (actually, a violation which can be ticketed but which one cannot be arrested for), while drinking a large soda is “illegal”.

It of course would be silly (so I will do it) to criticize a humorist on facts, but pot smokers (or carriers) will still be issued citations, but can no longer be arrested. This change was necessary because the police, under the controversial Stop-and-Frisk program, were regularly stopping young black and Latino men, asking them to turn out their pockets, and then arresting them for “displaying” marijuana, when merely “carrying” marijuana was a violation. Now displaying or carrying are treated the same. This is not  a major shift in drug policy, and to my mind doesn’t do nearly enough to rein in the utterly offensive Stop-and-Frisk program.

Soda carriers, or displayers, won’t be subject to ticketing or arrest under the proposed “ban”, but certain businesses won’t be allowed to sell large sodas. As far as I can tell (I couldn’t find an “official” proposal—if you can find one, please let me know in the comments) this would only apply to food service establishments. You could still buy a two-liter bottle of Coke at the corner bodega and walk down the street drinking it. Meanwhile, let’s compare the damage done by soda versus the damage done by marijuana. Estimates of obesity-related mortality are in the hundreds of thousands annually. Estimated deaths due to marijuana use are approximately zero, give or take nothing. (In fact, a Google search of “marijuana mortality” turned up this study indicating that marijuana use may lower mortality among people suffering from psychotic disorders.)

But Stewart’s comparison of food policy and drug policy is apt. Certain foods (sugary drinks, but not broccoli) and certain drugs (methamphetamine, but not marijuana) lead to extremely serious health problems for some people. And many users, of sugar and of meth, want to use less, but have a hard time stopping. One message of the poll linked above is that almost 3 million New Yorkers (36%) approve of the proposed ban. How many of them are people who want to reduce their caloric intake, but find it hard to avoid when every fast food joint tries to upsell them to the larger cup size? It is well-established at this point that (a) behavior is strongly influenced by the social environment, and (b) short-term gratification usually trumps long-term rationality, even in people who want to make and stick to the long-term rational decision. So freedom of choice should include the freedom to drink soda, but also the freedom to live someplace where one isn’t continually encouraged to engage in unhealthy behaviors.

Robert Nozick, philosophical champion of libertarianism, concludes his influential Anarchy, State and Utopia with a chapter entitled “A Framework for Utopia”. After spending a book defending the idea that there is no justification for a more-than-minimalist state—i.e., no paternalistic prohibitions, no economic redistribution—he argues that this only applies to a national or central state. Local communities, from which people would be allowed to exit at any time, could allow things, such as public nudity, which many or most other communities find offensive; or prohibit things, such as large sugary drinks, that many or most other communities find unexceptionable.

The main complaint that can be leveled against Mayor Bloomberg’s plan is not that it isn’t good policy, but that it is policy not democratically arrived at. If people should be free to live someplace that prevents them from drinking too much soda, they should also be free to live someplace where they can drink as much soda as they want. The questions become (a) at what scale should the rule be implemented, and (b) how do you deal with the transition? Clearly these kind of rules should be applied at the local level, not the federal level, and probably not at the state level either. Nozick argued these kind of restrictions should only be allowed in “face to face” communities. I take that to mean something approximating a neighborhood, though I think in order to be effective that many policies (particularly economic and planning policies) would have to be implemented at something like a metropolitan area. New York City is a unique case, as it is larger by itself than many metropolitan areas, but still only one part of its own metropolitan area. Thus a policy which would be thoroughly justifiable if enacted by a small suburban municipality, is more ambiguous in the case of New York.

Here Mayor Bloomberg would be well-advised to consider the opinion of New Yorkers, which appears to be against the plan. But if people should be free to choose to live in a place with a soda ban (or a drug ban, or a cheese ban), what do you do when a substantial minority wants such a policy, but no single place has a large enough majority to enact it? That is, what if 34% of the nation wanted a local soda ban in their community, but no single municipality had a majority in favor of the ban? In this case, it might be allowable for some local government to enact the ban in spite of local opposition, and expect population to gradually equilibrate to the new reality—as some residents found that they did indeed like the ban in spite of their earlier opposition, and others moved away and were replaced by new residents who moved in with full knowledge of the rule. Again, New York City’s unique size in the American system of cities makes the justifiability more ambiguous. A better approach for Mayor Bloomberg might be to implement the policy only in certain neighborhoods, with opportunity for public participation in choosing which neighborhoods would be affected.