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Say this for New York City Michael Bloomberg, whether you agree with him or not. He doesn't give up, and he isn't leaving office quietly.

Reuters reports that New York State's Supreme Court Appellate Division has ruled unanimously that Bloomberg's plan to ban the sale of jumbo sugary soft drinks by certain retail venues is indeed unconstitutional, and that the city's Board of Health overstepped its authority in imposing the ban.

"The decision," the story says, "upholding a lower court ruling in March that struck down the law, dealt a blow to Bloomberg's attempt to advance the pioneering regulation as a way to combat obesity. Beverage makers and business groups, however, challenged it in court, arguing that the mayoral-appointed health board had gone too far when it approved the law."

Bloomberg had pursued the ban as a way of addressing the city's obesity crisis, and was part of a broader concern voiced by the mayor about public health issues. During his tenure, the city has imposed laws "prohibiting smoking in restaurants, bars and parks; banning trans fats; and requiring chain restaurants to post calorie counts," Reuters writes.

But just because the courts have ruled against the jumbo soft drink ban doesn't mean that Bloomberg is backing down.

On National Public Radio (NPR), Marketplace has a story about how Bloomberg now is "nudging architects to design buildings that encourage New Yorkers to take the stairs ... Bloomberg wants to require new buildings to have a visible, continuous stairway and signs at the elevators that prompt people to climb instead of ride. The mayor also wants to change the building code to allow stairwell doors to stay open, making them airier and more inviting, provided they have a mechanism to close in case of a fire."

The concept is called "active design," or the development of design elements that encourage physical activity and better health.
KC's View:
It is hard for me to be too negative about Mayor Bloomberg's efforts, since I think what's been done to eliminate smoking in public places has made NYC a far more livable city. From restaurants and bars to sports venues and concert arenas, the lack of smoking has been one of the most positive changes in the city, and the fact that it has spread to many other cities has been an enormously positive change. And I have no problem with changes like requiring the posting of calorie counts - I've always thought that requiring transparency is to provide consumers with data that they can act on, or not. It is up to them.

But I never was comfortable with the jumbo soft drink ban. There were just too many inconsistencies, and ultimately, I thought, it sent the city government veering into "nanny state" territory. I never questioned Bloomberg's motivations, but I just thought he went too far.

While I'm not sure that mandating "active design" in private buildings is constitutional (I'm not a lawyer), I do think the impulse is intriguing. Bloomberg won't be mayor long enough to make this stick, I suspect, and I'm not sure any of the candidates to replace him are driven by the same impulses. (In one case, we know way, way too much about one candidate's impulses. And I'm not talking just about the impulse to send erotic text messages and pictures to women not his wife. I'm talking about the impulse to think he deserves to hold public office, no matter how much public humiliation he and his family have to endure. But I digress...)

The fascinating thing is that this kind of design can happen in the private sector ... witness the Bullitt Center in Seattle, which is not just so environmentally friendly that it is almost completely self-sustaining, but also has what is called an "irresistible stairway." The New York Times writes that the building has a glass-enclosed stairwell that "rewards climbers with panoramic views of downtown and Puget Sound. The behavioral carrot, aimed at promoting both health and energy conservation, has been juxtaposed with the stick of a slow and less conveniently sited elevator that requires key card access."

It can be done. I'm just not sure we need Mayor Bloomberg to require us to do it.