( CNN ) -- A state trial judge on Monday blocked New York City 's plan for a maximum 16 ounce size for a high-sugar beverage . The ban would have included sodas , energy drinks , fruit drinks and sweetened teas . But it would have excluded alcoholic beverages and drinks that are more than 50 % milk , such as lattes . The ban would have applied to restaurants , movie theaters , stadiums and mobile food carts . But it would not have applied to supermarkets and convenience stores , such as 7-Eleven . Mayor Michael Bloomberg 's proposal was met with fierce opposition by the industry and public outrage at the loss of `` liberty , '' the so-called `` nanny state '' run amok . Beyond all the hype , the industry 's vociferous arguments , now adopted by a trial court , are badly flawed . In fact , the Board of Health has the power , indeed the responsibility , to regulate sugary drinks for the sake of city residents , particularly the poor . News : Mississippi governor reviews 'Anti-Bloomberg ' bill . Would the ban work ? Nearly six out of 10 New York City residents are overweight or obese , as are nearly four out of 10 schoolchildren . This can not be acceptable to our society , knowing that obesity is such a powerful risk factor for diabetes , cancer and heart disease . No one would disagree that government should act , but how ? There is no single solution , but many ideas that would work in combination . One of those solutions is to control portion size and sugar consumption . Why ? First , the ever-expanding portions ( think `` supersized '' ) are one of the major causes of obesity . When portion sizes are smaller , individuals eat less but feel full . This works , even if a person can take an additional portion . ( Most wo n't because they are satiated , and it at least makes them think about what they are consuming . ) Second , sugar is high in calories , promotes fat storage in the body and is addictive , so people want more . The so-called `` war on sugar '' is not a culture war , it is a public health imperative backed by science . Opposing view : 'Anti-Bloomberg ' bill stops overregulation . So , there is good reason to believe New York 's portion control would work . But why does the city have to prove that it works beyond any doubt ? Those who cry `` nanny state '' in response to almost any modern public health measure ( think food , alcohol , firearms , distracted driving ) demand a standard of proof that lawmakers do n't have to meet in any other field . When a law is passed to increase jobs , spur the economy or subsidize a corporate sector ( oil , for example ) , we do n't insist that lawmakers prove it works . At least public health officials rely on science and try to craft rules that have a chance of workingâ€ ” if not in isolation , then in combination with other obesity control measures such as food labeling , calorie disclosures , trans fat restrictions and access to affordable fruits and vegetables in schools and poor neighborhoods . Is the ban consistent ? The industry stoked the fires of public discontent with its campaign against the `` inconsistencies '' in the soda ban . Why does n't the ban apply to milky drinks , why can 7-Eleven sell large sugary drinks , and why not ban refills ? Justice Milton Tingling Jr. bought both industry arguments : It wo n't work and it is inconsistent . He went so far as to call the ban `` fraught with arbitrary and capricious consequences '' and filled with loopholes . Again , we find a double standard . Bloomberg did what every other politician does : balance public health and safety with realpolitik . Consider one of the judge 's major arguments : balancing public health and economic considerations is `` impermissible . '' This judicial reasoning makes no sense . If policy makers could not balance economic consequences , virtually every law in America would be flawed . There is another huge problem with this argument . It assumes that unless public health does everything , it can do nothing . The whole art of politics is compromise . The mayor gets a lot of what he seeks to fight obesity , but not everything . Does the Board of Health have the power ? Admittedly , the soda ban would have been better coming from the city 's elected legislature , the City Council . But the Board of Health has authority to act in cases where there is an imminent threat to health . Does n't the epidemic of obesity count as an imminent threat , with its devastating impact on health , quality of life and mortality ? In any event , the Board of Health has authority over the food supply and chronic disease , which is exactly what it has used in this case . Members of the Board of Health , moreover , are experts in public health , entitled to a degree of deference . The fact that the proposal originated in the mayor 's office does not diminish the board 's authority and duty to protect the public 's health . Many health proposals arise from the executive branch , notably the Affordable Care Act . Should industry have an outsized influence on public health policy ? The fingerprints of the food and restaurant industries , with their clear economic conflicts of interest , are all over the public and judicial campaign to block the soda ban . Industry undertook a multimillion-dollar campaign , flying banners over the city and plastering ads over the subways . They immediately filed suit and hired the most elite law firms . Rather than recognize the public health effects of large sugary drinks , they chose to fight , reminiscent of Big Tobacco . What is worse , the public ( and now a judge ) fell for the industry 's manipulations . Most New Yorkers oppose the portion ban , while politicians in other states are scrambling to show their disapproval . Mississippi is about to pass a law forbidding portion control . Imagine that in a state with the highest obesity rate in America ! We are used to fierce lobbying for personal gain in America , but that does n't mean we should be duped by industry propaganda . Is a portion limit really such an assault on freedom ? It does n't stop anyone from buying soda . If consumers really want , they can buy several smaller drinks . It does n't stop companies from giving refills . There is really no great burden posed on individuals , only a little nudge in the right direction . At the same time , it could make meaningful changes in the drinking habits of New Yorkers . Why is the industry fighting this so fiercely ? Because when it is shown to be successful in New York , it will be emulated in major cities in America and worldwide . Is n't that exactly what we need to stem the tide of obesity ? The opinions expressed in this commentary are solely those of Lawrence O. Gostin .
A New York state senator blocks the city 's attempt to limit the size of sugary drinks . Lawrence Summers : A portion limit is not an attack on freedom ; people can still buy soda . He says like Big Tobacco , industry has spent millions to fight this effort to combat obesity . Gostin : The Board of Health has the power to regulate sugary drinks ; quality control can continue .