Before Gov. Rick Perry took off for New York in hopes of luring businesses to Texas, he previewed his pitch in a radio ad.
In the spot, Perry said, "The new New York sounds a lot like the old New York: Higher taxes. Stifling regulations. Bureaucrats telling you whether you can even drink a Big Gulp."
We learned of the ad, posted online June 12, 2013, by Texas’ state economic development corporation, from a June 12, 2013, Dallas Morning News news blog entry, which said it had a "slight inaccuracy," because convenience stores "always were exempt" from a New York ban on big sugary drinks struck down earlier in 2013.
Are New York government officials getting between 7-Eleven customers and their self-serve plastic cups?
Big Gulp, of course, is a trademark registered to Dallas-based 7-Eleven Inc. convenience stores, alongside Super Big Gulp, Slurp & Gulp, Super Slurpee, Big Brew and many others. Its size has varied from time to time; these days, 7-Eleven spokeswoman Margaret Chabris told us by email, Big Gulp denotes a 32-ounce fountain drink. For comparison, an ordinary soft drink can holds 12 ounces.
Perry vetoed a measure June 14, 2013, that would have barred the sale of sugary drinks during class hours at most Texas public schools, saying current policy was adequate and the bill would limit "innocuous" beverages such as 2 percent milk.
Perry spokeswoman Allison Castle told us by email that the governor’s wording was a play on "Big Gulp Ban," a nickname for the anti-obesity proposal that New York’s mayor launched in 2012 to stop some sales of large sugary drinks, similar in spirit to the city’s 2008 ban on certain fats at restaurants.
A May 30, 2012, New York Times news story said Mayor Michael Bloomberg’s proposal took aim at "any cup or bottle of sweetened drink larger than 16 fluid ounces" sold in food service establishments regulated by the city’s health department, unless the beverage contained "fewer than 25 calories per 8-ounce serving." Diet sodas, fruit juice, dairy drinks and alcoholic beverages were not covered, the story said.
Under the measure, the Times wrote, fast-food and other restaurants, movie theaters, street carts and sports arenas "would be required to hand out cup sizes of 16 ounces or less" -- but not grocery stores or convenience stores such as 7-Eleven.
Bloomberg spokeswoman Samantha Levine and 7-Eleven’s Chabris said the same, telling us via email that 7-Eleven would not be affected because it is regulated by the state, not the city.
A May 31, 2012, CBS news story described the plan as Bloomberg’s latest tactic against sugary drinks, saying he "previously supported a soda tax that was ultimately shot down by state lawmakers and, in 2010, proposed to ban people from using food stamps to buy sugary drinks, sodas and teas," an effort stopped by the USDA.
Those earlier efforts could have affected convenience stores, but it appears the 16-ounce portion cap would not have.
The city’s statement of purpose for the 16-ounce limit, published in the City Record on June 19, 2012, said, "To address the obesity epidemic among the city’s residents, the Department proposes that the Board of Health amend Article 81 (of the city health code). The proposed changes would establish maximum sizes for beverages offered and sold in FSEs."
An FSE, or food service establishment, is defined in Section 14 of the city’s health department regulations as "a place where food is prepared and intended for individual portion service and includes the site at which the individual portions are provided, whether consumption occurs on or off the premises." The regulations specify that "retail food stores," private homes and certain other establishments are exempt.
A June 6, 2012, Times news story headlined "At 7-Eleven, the Big Gulps Elude a Ban by the City," said the Big Gulp would be "an important exception" to the ban.
Then again, the overall ban fell through March 11, 2013 -- blocked the day before it was to take effect by what the Times called a "surprise" ruling from a state Supreme Court judge. The city appealed the decision, according to a June 11, 2013, Times news story.
Confusion over which businesses would be affected was a factor in the ruling, which said, "This court finds that the regulation herein is laden with exceptions based on economic and political concerns" and mentioned city health officials’ assertion that markets and stores "including the 7-11 market chains and their famous, or infamous, Big Gulp containers" would be exempted.
The city health department backs up the Big Gulp exception in a "Fact vs. Fiction" document on its website, saying that because certain "retailers, like convenience stores and grocery stores, are not regulated by the health department, they are not covered by the rule."
Bloomberg hasn’t given up on other ways to limit sugary drinks. He and other mayors wrote to Congress on June 18, 2013, with a new request to limit the use of food stamps for buying sugar-sweetened beverages.
Perry said New York has "bureaucrats telling you whether you can even drink a Big Gulp."
City officials are trying to tell New Yorkers they can’t buy large sizes of sugary drinks at some establishments -- but they haven’t succeeded. Notably, the ban Perry referred to would exempt convenience stores.
We rate Perry’s statement as Mostly False.
TexasOne radio ad, "Your Opportunity Awaits," posted to YouTube June 12, 2013
Email interview, excerpted, with Romina Black, executive director, TexasOne, June 18, 2013
Dallas Morning News blog post, "Texas Gov. Rick Perry launches ads to recruit New York businesses; Fact Check: Perry wrong on Big Gulp in NYC," June 12, 2013
7-Eleven Inc., "Terms and Conditions of Use," accessed online June 19, 2013
Email interview, excerpted, with Margaret Chabris, spokeswoman, 7-Eleven Inc., June 17, 2013
2013 Texas Legislature, House Bill 217, accessed online June 19, 2013
Email interview, excerpted, with Allison Castle, director of communications, Office of Gov. Rick Perry, June 18, 2013
The New York Times news story, "New York Plans to Ban Sale of Big Sizes of Sugary Drinks," May 30, 2012
Email interview, excerpted, with Samantha Levine, deputy press secretary, New York Mayor Michael Bloomberg, June 19, 2013
CBS news story, "NYC mayor proposes ban on sugary drinks larger than 16 ounces," May 31, 2012
City of New York notice of public hearing, City Record, June 19, 2012
City of New York health department regulations Section 14, accessed online June 19, 2013
The New York Times news story, "At 7-Eleven, the Big Gulps Elude a Ban by the City," June 6, 2012
The New York Times news story, "Judge in Soda Ruling Is Wary of Government’s Power," March 11, 2013
The New York Times news story, "City Argues to Overturn Ruling That Prevented Limits on Sugary Drinks," June 11, 2013
City of New York information sheet, "Sugary Drink Portion Cap Rule: Fact vs. Fiction," accessed online June 19, 2013
City of New York press release, June 18, 2013
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