A certain amount of regulation is necessary to ensure
the health and safety of those involved in regulated enterprises. For example, certainly, miners cheered the formation of the Mine Safety and Health Administration, and other workers cheered the formation of the Occupational Safety and Health Administration.
There are other examples of agencies whose missions are necessary. The Food and Drug Administration, and the Consumer Product Safety Commission, ensure the safety of the things we consume and the other products we use.
However, one wonders whether this necessary protection sometimes changes into something that exceeds the limits of reason and common sense. One wonders whether an agency’s regulatory efforts overstep its original mandate, such as arguably has happened in cases involving the Environmental Protection Agency.
The law of diminishing returns, as applied to regulation generally, holds that the more something is regulated, the less any given regulation contributes to the goal of providing the protection intended. And regulation, for all of the ways it protects us, doesn’t come without costs. Balancing such costs and benefits is challenging.
Former U.S. Supreme Court Chief Justice John Marshall once wrote that the power to tax is the power to destroy. Perhaps the same can be said of the power to regulate. That power, when carried beyond the limits of reason and common sense, also becomes the power to destroy.
Try as it might, there is no way that the government can protect us from all the ways we might harm ourselves. If it were to try, not only would such efforts exceed reason and common sense, they would infringe the freedoms upon which the United States of America was created.
The separation of powers ensures that the powers of each government branch — executive, legislative, and judicial — are equal, and that one branch doesn’t try to do something that another branch is meant to do. It’s the legislature’s job to make laws, and the executive’s job to enforce them.
And a law cannot be arbitrary; there must be clear standards to determine how it will be applied. And it cannot be capricious; there must be some rational basis for it.
In striking down New York City’s ban on large sodas, New York Supreme Court Judge Milton Tingling ruled that the ban, which applied only to establishments and vendors that sell prepared food (including, for example, restaurants) but did not apply to grocery or convenience stores, violated the separation of powers and that it was arbitrary and capricious.
Even if one thinks that the Coca-Cola Company’s campaign encouraging responsible use of its products is hypocritical, it is right about two things: one, all calories count, and two, if one consumes more calories than he expends, he’ll gain weight. A government regulation isn’t necessary to tell us something we can discover simply by looking in the mirror.
While there’s no denying that much of America is “calorically challenged,” large sodas aren’t inherently dangerous. There are still some areas into which government’s ever lengthening regulatory reach ought not be allowed to go.
Ken K. Gourdin, a Tooele resident and a soda drinker, is a certified paralegal. This column is not legal advice, and anyone needing such advice should contact a licensed attorney.