482345_10151309444770863_2130801714_nNew Yorkers had their day to make like the guy on the New York Post cover and pour (or, more typically, drink) big gulps of freedom when Judge Milton Tingling ordered the city not to implement its ban on certain soda sizes. Nanny-mayor Michael Bloomberg vowed not to surrender in his quest to control everything citizens put into their bodies and appealed the ruling. The New York Supreme Court Appellate Division, the second of three tiers of the New York State court system, heard New York City’s appeal of that order striking down the soda ban Tuesday.

To gin up support from the judges, New York health czar Thomas Farley announced new diabetes mortality statistics yesterday and claimed that they showed the malevolent influence of soda consumption. However, consumption of calories from full-sugar sodas and similar beverages actually declined by about one-third over the past ten years, according to Centers for Disease Control dietary statistics.

No wonder Farley had to concede in a Forbes op-ed that the “sugary-drink portion cap [the P.R.-approved term for the soda ban] alone will not solve this problem.” Given that it (admittedly!) will not work at controlling obesity and that University of California-San Diego research suggests that the arbitrary and capricious loopholes (like the loophole for Starbucks-sponsored author of anti-food books Mika Brzezinski’s massive coffee drinks) may lead to more calorie consumption, what’s the point of the ban anyway?

Some commentators speculated that in fact, the ban’s purpose is nefarious: It is designed to fail in its objective, serving only to establish a precedent that can be used to control even more consumer choices, like how much extra cheese can be on a pizza. By not going through City Council, which is elected, the Mayor and his health bureaucrats engaged in a naked power grab not for the good of the public, but instead to serve their own ambitions for dietary command and control.

Judge Tingling correctly identified the loopholes as evidence that the rule was “arbitrary and capricious” and unlikely to serve its purported purpose, in addition to finding that the rule violated the separation of powers between city executive and the Council. The Appeals Division should affirm that finding, and the soda ban should not be given new zombie life.