News & Politics

Bloomberg’s Soda Ban: It Depends What You Mean By “Improve”

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In this corner: Mayor Michael Bloomberg, who has asked the U.S. Department of Agriculture to grant New York City a two-year waiver to ban the purchase of soda with food-stamp cards, saying it’s a matter of public health. In the far corner: Joel Berg, New York Coalition Against Hunger director and food program expert, who says it’s not only a dumb idea, it’s illegal.

When we last left our two contenders, they were engaged in a fierce game of “Is not!” “Is too!” about what exactly the USDA can and can’t approve without going back to Congress to ask for a rewrite of the law. So what does, you know, the law say? Here are the results of an Exclusive Village Voice Investigation:

Round 1: In 2004, the USDA shot down an application from the state of Minnesota to allow it to bar the use of food stamps to buy candy or soda. The Times reported yesterday that the denial was because the plan “was based on questionable merits and would ‘perpetuate the myth’ that food-stamp users made poor shopping decisions,” both of which were indeed mentioned in the USDA’s rejection letter. The feds, though, started with an even broader objection:

We are denying the waiver as requested based on Section 272.3(c)(2)(i) of the regulations. This provision specifies that no waiver of the regulations may be approved if such a waiver would be inconsistent with the provisions of the Food Stamp Act. Section 3(g) of the Act defines “food” in a manner that is almost identical to that of the FSP regulations. By proposing to change the definition of “food” in the Food Stamp Program (FSP) operated in the State of Minnesota, the waiver request is in direct conflict with the statute. Therefore, any such waiver request would not qualify for approval.

In other words: The Food Stamp Act says you can use your benefits to buy anything except alcohol, tobacco, and hot foods for immediate consumption, and that’s the law until the 100 crazy people say otherwise.

Round 2: Not so fast, say city and state officials. The proposal by Mayor Bloomberg (and signed off on by Gov. Paterson), they say, isn’t a permanent change, just a “demonstration project.” And demonstration projects are covered by a whole ‘nother part of the law:

The Secretary may conduct on a trial basis, in one or more areas of the United States, pilot or experimental projects designed to test program changes that might increase the efficiency of the supplemental nutrition assistance program and improve the delivery of supplemental nutrition assistance program benefits to eligible households, and may waive any requirement of this Act to the extent necessary for the project to be conducted.

Translation: Yeah, Congress said you can keep your soft drinks until they pry them from your cold, dead fingers, but USDA can change the rules so long as it’s “on a trial basis” — and is intended to improve the efficiency of the program.

The big question, then: Can banning soda purchases be considered “increasing the efficiency” of the food stamp program, or “improving the delivery” of food stamp benefits? The state Office of Temporary and Disability Assistance says yes, because it’d be raising low-income families’ nutrition levels; Berg says that’s crazy doubletalk, since “efficiency” and “program delivery” have to do with how easy it is to get food stamps, not what you do with them once you get them.

USDA officials, being no dummies, are refusing to say anything one way or the other on the record about Bloomberg’s plan, no doubt hoping that by the time they get around to deciding whether it’s legal or not, everyone will have moved on to more urgent matters like the latest athlete penis photos. (The Minnesota waiver request took about two months to get a ruling, if you’re thinking of setting up a betting pool.) Given the department’s previous disdain for using food stamps as a method of social engineering, not to mention its stated objection that the Minnesota plan would “would perpetuate the myth that FSP participants do not make wise food purchasing decisions” — and both of those came from the USDA of George freaking W. Bush, already — it doesn’t seem all that likely that Bloomberg’s soda waiver will pass muster. Still, crazier things have happened.

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