Mayor Michael Bloomberg is hoping the third time will be the charm, in reducing the city’s sugar intake — and the waistlines — of New Yorkers.

Earlier attempts to tax sugary beverages or outlaw them from food stamp redemptions ran up against state and federal authorities and politics. So, on Thursday, he offered a different tack, proposing a new ban within a domain the city actually controls: “food service establishments.”

These are places the city performs inspections on — not just restaurants, fast food joints and delis, but institutional cafeterias, outdoor food carts, and concessions at movie theaters, stadiums and arenas. 

Unaffected by the ban would be supermarkets, bodegas and certain convenience stores, such as 7-11s, which the state regulates.

Though there will likely be legal challenges to the Bloomberg proposal, the mayor believes he has the authority to revise the code governing food inspections through the city Health Board, which he appoints, without consulting the City Council.

And Bloomberg said Friday he thought Governor Andrew Cuomo would defend his proposal to ban super-sized sugary drinks in the city.

Speaking on his weekly WOR-AM radio show Friday, Bloomberg said he thought the governor would bat down said any attempts to legislate the ban away.

“I don’t think that’s going to happen,” Bloomberg said. “I assume the governor would veto it.”

Cuomo opposed Bloomberg’s proposed tax on soda.

Not All Sugary Drinks are Created Equal

Because of where they are sold Strawberry Slurpees and 2-liter bottles of soda would be safe. Milkshakes and ‘Frappucino’-like drinks that have more than 51% milk, and fruit drinks that have more than 70% juice would also not be impacted by the ban.

“We’ve tried to tailor this as narrowly as possible to the product we think is most associated with the rise in obesity, and that’s the sugary drink,” said Health Commissioner Dr. Thomas Farley. “So, we’ve excluded in this drinks that have nutritional value, such as dairy products.”

Ironically, dairy is a leading factor in diminishing the effect of punitive soda taxes, according to Emory University economics professor David Frisvold. His research  suggests that in areas where the cost of sugary drinks increased, or where the drinks were simply pulled out of school vending machines, kids did indeed consume fewer of them — but what the kids drank instead was whole milk, which is even more caloric.

Does Size Really Matter?

Frisvold thinks Bloomberg’s proposal to reduce portion size could fare better than making soda and other beverages more expensive.

“I think this would be more effective, because it’s a ban on portion size, instead of a ban on access,” Frisvold said. “You drink one soda, and you’re going to drink as much soda is in your container, but I think you’re less likely to then get another soda as a form of substitution, so I think it’ll be more effective at reducing the amount of calories you consume.”

Obviously, people could buy two smaller drinks and get the same quantity — and vendors could help them with ‘two-for-the-price-of-one’ discount pricing. But Frisvold and others think the city policy could help “reset the default” for most people.

“There are always ways for consumers to drink more sugar-sweetened beverages, and for the true die-hards, this may not change that,” said Professor Brian Elbel, who studies nutrition and population health at NYU. “But if you’re like most consumers walking in, now the healthier choice is going to be the easier choice, and you’re most likely going to get a single beverage with significantly fewer calories.”

Elbel said if the ban passes, researchers will need to track consumer patterns closely, to see how many people are “die-hard” soda drinkers and how many are “average.” He also said that there’s some evidence obesity is already leveling off ― and even declining in some groups ― so it will take careful research to determine whether the change in soda size is having a significant impact or whether the trends are continuing on their own.

Dr. Gilbert Ross, from the American Council of Science and Health — which excepts donations from the food and beverage industry — doubts the oversized soda ban will have any impact.

“Despite the obvious problem with increasing portion sizes, nobody in their right minds has suggested banning portion sizes above a certain amount of food on one’s plate or a certain sized dish,” Ross said. “So this attempt to criminalize Big Gulps is clearly an over-reach — an inappropriate public health measure for which there is very little evidence."

The Health Board is slated to meet in mid-June for public comment on the proposal and would vote on the measure in September. If it passes, there wouldn’t take full effect for an additional nine months.