Is Mayor Michael Bloomberg's Supersized Soda Ban Unconstitutional?

Talk about throwing around the c-word!

The Constitution, that is. (Don't give us that look! What word did you think we meant?)

Anyway, opponents of Mayor Michael Bloomberg's supersized soda ban might argue in court that the proposed measure is unconstitutional, citing the commerce clause as proof of its illegality.

One lawyer told The Associated Press that municipalities "can't pass laws that do impose burdens on the free flow of commerce between states...if it is too much of a burden, the Supreme Court says that states can't do it. Only Congress can impose burdens on commerce. States can't." This might apply to soft drinks, he said, because it would require manufacturers to make different size servings and distribution methods, etc.

But is this true? And what is the commerce clause to begin with?

Turns out, the commerce clause is part of Article 1, Section 8 of the U.S. Constitution, and gives Congress the right "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes."

Not fully sure how this relates to soda, we gave Michael Botein a call.

He started the Media Law Center at New York Law School but also knows a lot about Constitutional law, and was willing to talk with us generally about the clause.

For starters, he told us not to spend too much time reading about it -- five or 10 minutes max. "OK," we said!

"To be honest, it's about the simplest part of the Federal Constitution," he said.

"Basically, the commerce clause is that one state may not impose any kind of burden upon commerce that is interstate -- commerce that moves from one state to another."

For example...

"If every other state in the union has railroad tracks that are certain universally accepted gages, another state cant come along and say: 'Eh, I think we want to make it an inch wider.'"

We asked how soda is like railroads. Botein said it isn't, and he didn't get why people would consider using the clause to fight the ban.

This argument "makes no sense whatsoever, because states clearly have the ability to regulate what they consume," he said. "Thats why states can be dry and not allow alcohol. They can have different drug laws and different speed limits, etc. There's not much question that that's not under any interpretation of the commerce clause."


Of course, there are probably as many opinions on this as there are rulings, so it's hard to predict what attorneys and courts' moves will ultimately be. But we'll keep you in the loop with any developments.

Follow Victoria Bekiempis @vicbekiempis.

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My Voice Nation Help

I'll be openin' free sugary soft drink fountains on every corner.  You watch.


The constitution explicitly gives states and by extension, local governments franchised by the states, all powers not exercised by the federal government. Unless the federal government specifically outlaws soda size restrictions, NYC is well within its rights to do what it's doing. Of course, that won't stop people who have no idea what's in the constitution from screaming that this is unconstitutional.


Yeah, it is like TOTALLY unconstitutional and I'm surprised with all the Columbia/Cordozo free-speech loiuz in NYC no one has yet to even begin to put the little despot Bloomy in his place. 


The only reason I can think of to prohibit the ban, is that it prevents the Federal Government from pouring huge quantities of subsidized high fructose corn syrup down the throats of the populace in lieu of nourishing food.

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