The Bloomberg administration is back in court three months after a state court judge barred New York City Mayor Michael Bloomberg’s proposal to create a city-wide ban on sugary beverages over 16 ounces. Reports of the latest court proceedings say that the judges were more sympathetic to lawyers from the American Beverage Association than to those from the Department of Health. Marion Nestle agrees and writes that, “the judges were much tougher on the DOH attorney than on the one from the ABA.”

Perhaps this is because the ABA has swayed public opinion so thoroughly in its opposition of the soda ban with its insidious and seemingly grassroots campaign, “New Yorkers for Beverage Choices.” This organization says it represents New Yorkers, businesses, and community organizers but is in fact a creation of the beverage industry itself. By using the language of “choice” the industry has persuaded many New Yorkers that by defending the billion-dollar beverage industry, they are in fact, standing up to elites like Bloomberg as well as protecting their civil liberties. Last July, paid canvassers hired by the beverage industry stopped New Yorkers on the street to sign petitions. So far, more than half a million people and businesses have signed on to protect New Yorker’s freedom to choose what size sugary beverage to buy.

Public opinion was also swayed back in January, when the NAACP and the Hispanic Federation sided with the beverage industry and opposed Mayor Bloomberg’s ban. This move brought the issues of race, class, choice, and agency to the fore in a debate seemingly about the prevalence of sugary drinks and their connection to the rates of diet-related disease and obesity. The ensuing conversation has shed light on the vast chasms across racial and class lines when it comes to reforming our food system and regulating our food industry.

The proposed soda ban highlights one crucial tenet about Americans: We do not like being told what to do. Rather, we prefer to be seduced by slick marketing and sexy ad campaigns. This way, it’s as if we have chosen one particular product based on a sense of self-identification — the ultimate goal of advertisers and corporations. The most obvious recent example of this is the marketing confluence of Beyoncé and Pepsi. Here we have the glamorous (svelte and healthy) mega pop star hawking a product that we know leads to obesity, diabetes, and a host of other health issues.

Of course, Beyoncé is only one in a long list of celebrities that shill for these beverage corporations: Elton John, Britney Spears, Mariah Carey, Madonna, LeBron James and Sofía Vergara are among the many others. Our American obsession with fame and wealth is partially why these endorsements work so well; the other part has to do with this concept of choice; after all, Pepsi’s tag line has long been, “The choice of a new generation.”

The question of choice is a sticky one in this soda ban debate since the billion dollar advertising industry has led Americans to believe they have unlimited choices when it comes to food and drink. Most Americans scoff at the idea of their “choices” actually being dictated to them by some outside force; but the reality is that we actually don’t have unlimited choices when it comes to our food. In fact, most options on grocery store shelves boil down to choosing products from roughly a handful of large corporations, often made using the same ingredients — corn and soy. Four companies make 75 percent of breakfast cereals and snacks, 60 percent of cookies, and 50 percent of all ice cream. Four companies slaughter 81 percent of all beef and control 70 percent of all milk sales.

Bloomberg can certainly wield great power with the soda ban, causing critics to cry overreach and nanny-state — but what about these corporations? And the billion dollar advertising industry? The difference is in the presentation: Bloomberg is no Beyoncé. When Beyoncé tells us what to drink we listen; when Bloomberg does, there’s outrage.

It’s worth asking the NAACP and Hispanic Federation why they don’t oppose Beyoncé’s marketing of Pepsi when we know that diabetes rates are 77 percent higher among African Americans and 66 percent higher among Latinos than their white peers. It’s been widely reported that both organizations receive funding from Big Beverage corporations, and thus opposing them has become too risky. As Michael F. Jacobson, executive director of the Center for Science in the Public Interest, said in a New York Times article, “Their opposition makes the battles harder. It gives credibility to the industry’s arguments, which are typically self-serving.”

These organizations argue that the ban will unfairly harm bodega or other small business owners, which has validity since the ban seems arbitrary in its application. Why is a 20-ounce Frappuccino from Starbucks, with a whopping 79 grams of sugar, exempt from this ban simply because it contains dairy? By comparison, a 20-ounce bottle of Coke contains 65 grams of sugar and is not exempt. This example highlights two key contradictions: Large corporate stores won’t suffer financially from the ban; and there is an air of class discrimination between the people who typically buy these beverages.

Ben Jealous, NAACP President and CEO, has said that the organization would support a comprehensive ban. “This is the troubling part: this ‘ban’ wouldn’t have been a ban at all, in that it would have stopped it from the mom and pop shops, it wouldn’t have stopped it at 7-Eleven,” Jealous said on the Chris Hayes show. “How are you banning soda if you’re not banning ‘Big Gulps’?”

Bloomberg’s soda ban, while perhaps a step in the right direction, is akin to a band-aid on the big gaping wound that is our inequitable food system. The opposition to the ban by the NAACP and the Hispanic Federation shines a spotlight on that wound.

Public opinion is a powerful tool and the beverage industry is pushing all the right buttons to sway New Yorkers into siding with an industry that causes demonstrable harm to our health. If the judges agree that the ban is encroaching on our “freedom to choose,” then they too are missing the bigger picture.

But perhaps the most salient lesson to come out of this debate is just how limited changes to the food system will be if we do not address class and racial inequality. The claims of paternalism against Bloomberg’s ban are valid — the very concept of the ban implies that certain people are not capable of making good decisions on their own and strips them of agency. The trick is that the corporations are playing the same game. They aren’t giving consumers any more credit than Bloomberg is — they just make it so that when they tell us what to do, it’s a whole lot more sexy.

The controversy surrounding New York City Mayor Michael Bloomberg’s recent plan to ban sugary drinks larger than 16 ounces ranges from praise for taking on “America’s expanding waistline” to deriding him as a “nanny” for infringing on our personal choices and freedoms. But what’s largely missing from the debate is a real critique of the true villain in this battle—Big Food.

Those who favored the decision heralded Bloomberg: The Washington Post, in an editorial, writes, “The country need [sic] innovative leaders with a similar determination to take on America’s expanding waistline.” Frank Bruni writes in The New York Times, “Cry all you want about a nanny state, but as a city and a nation we’ve gorged and guzzled past the point where a gentle nudge toward roughage suffices. We need a weight watcher willing to mete out some stricter discipline.”

Those who feel our ability to buy a 32-ounce container of Coca-Cola has become the stand-in for civil liberties, such as the Center for Consumer Freedom, placed an ad in New York City newspapers, featuring Bloomberg as a “nanny” with a tagline that reads: “You only thought you lived in the land of the free.” Jon Stewart did a bit last Thursday lamenting the fact that he agreed with Fox News’ Tucker Carlson, who said Bloomberg was taking away our personal freedoms. And a New York Times editorial claimed the Mayor was overreaching, writing: “[T]oo much nannying with a ban might well cause people to tune out.”

In the meantime, Big Food still has free reign to produce and market harmful products with virtually no regulation or oversight. So far, the government has been incredibly weak on regulating food producers and advertisements. Last year, the Obama administration proposed voluntary guidelines for the types of food advertised to children. The guidelines were extremely modest, allowing for two-thirds of processed foods to remain unchanged and placed mostly insignificant caps on the allowance of sugar, fat, and sodium in products marketed to kids. Even these voluntary guidelines were called “unworkable and unrealistic” by one prominent industry group.

This is not the case in Europe. In 2007, the French government ordered all food advertisements to carry warning labels telling consumers to stop snacking, exercise, and eat more fruits and vegetables. These warning labels are found in advertisements on television, radio, billboards, and the Internet for all processed, sweetened or salted food and drinks. Other European countries have taken similar measures. In Sweden and Norway, all food and beverage advertising to children is forbidden. In Ireland, there is a ban on TV ads for candy and fast food and the ban prohibits using celebrities and sports stars to promote junk food to kids. According to Pamela Druckerman, author of Bringing Up Bebe, snacking is generally discouraged in France and children eat three meals a day with one small snack around four in the afternoon.

Regulations like those in Europe are the kind that could help to encourage new cultural norms around food in this country—and they don’t target the consumer by banning or taxing particular foods but rather they force corporations to label their unhealthy products and abide by advertising regulation.

Professor and author of Weighing In, Julie Guthman, had this to say about the ban: “Ultimately, I would prefer to see regulation at the point of production. If we as a polity think that sugary drinks are detrimental to public health, we shouldn’t allow them to be produced,” she said in an e-mail. This would surely be a more radical solution since it would place the burden on the corporations rather than the consumer. Guthman said the ban is a better idea than a soda tax because, “A regressive soda tax punishes those who have the least ability to pay.” But she’s weary of the ban since it still targets consumers and  “focuses on the size of the drink which would seem to suggest that individual consumers can’t make good decisions. That is terribly paternalistic,” Guthman said.

The idea of a super-size soda ban is a broader variation of Bloomberg’s proposed plan last year to disallow the purchase of soda with food stamps. Critics of this initiative felt it was also paternalistic and stigmatized the poor who would not be able shop like other consumers. The difference with the current soda ban is that all New Yorkers would be affected and it is here that the ban may potentially bring benefit by creating new cultural norms around food and beverage choice.

A 2010 study completed by the Yale Rudd Center for Food Policy and Obesity found that the barrage of fast food advertising makes kids think processed, junk foods are “normal and expected.” The same can surely be said for the increase in portion sizes. As long it is “normal” and culturally accepted to drink a 20, 32 or 64-ounce soda along with that burger and fries people will continue to do so.

As Ronald Bayer, a professor at the Mailman School of Public Health at Columbia put it in The New York Times, “The behaviors that harm our collective health are not, by and large, the result of bad or foolish individual choices. These “bad habits” are shaped by our culture, social arrangements and commercial interests.”

Ultimately, this ban may prove ineffectual since consumers will still be able to buy the equivalent of the larger size sodas in other ways, like buying two bottles or going to restaurants where refills are free. And of course, sodas are not the only problem when it comes to our unhealthful diets.

Mayor Bloomberg is brave to go head-to-head with Big Food by limiting portion size and trying to create a new norm but this tactic might further distract from the underlying problem of our virtually unregulated toxic and super-sized food supply. If nothing else, the proposed ban highlights the deeply complex and troubling conundrum that our current food system presents. Something clearly must be done—it just seems that regulating and curtailing the powers of Big Food would be a better place to focus our attention rather than merely capping the portion size for one of many sugary, addictive, non-nutritious substances at our never-ending disposal.