Neil H. Buchanan

Why New York's (and Other Jurisdictions') Food Regulations Do Not Violate Freedom of Choice: The False Notion That Our Tastes Are of Our Own Making

By NEIL H. BUCHANAN
Thursday, May 20, 2010

The general decline in Americans' health is a matter of serious policy concern, and the marked rise of obesity among children and teenagers is especially troubling. If such trends continue, they will not only condemn millions of people to lives of limited mobility, followed by premature death, but they will also be a major factor in the increase in health care costs in the United States. Improving Americans' health not only is desirable in itself, but it will also minimize visits to doctor's offices or hospitals, allowing us to save both money and lives.

One logical step is to improve the quality of the food people eat. The increasing consumption of prepared food — even when that food is purchased from a grocery store — has corresponded, over time, to the marked increase in obesity, and that fact suggests that one path to making Americans healthier is through the food supply. New York City's government has become especially active in this area, passing a series of laws designed to better inform people about what they are eating, and to change the types of food that are sold in the city.

The city's interest in these matters, of course, is based on more than just altruism. With a very large population of poor and young people putting increasing strains on the City's budget (through health-related maladies), New York is sensibly aiming to solve that problem. Its strategy is a perfect example of a government's most important role in society: identifying a problem that is widespread among its citizens, noting that solving that problem would be both humane and economical, and passing laws designed to effect a solution.

Some people, however, do not see it that way. To them, food regulations are an oppressive act by a government that is intent on limiting their freedom of choice. As one TV pundit put it (and here, I am paraphrasing), "Keep your hands off my cheeseburger." It is illegitimate, according to this argument, for the government to stop people from eating cheeseburgers— even if cheeseburgers end up killing people — because the government should not limit people's freedom to decide what to put in their mouths (and, implicitly, to decide when and how to die).

In this column, I will discuss this "freedom" objection to food regulations. I contend that this objection, even when raised in good faith, turns out to have no meaning in the context of a modern economy. As much as people might like to believe that they are in control of their fates, the fact is that they are — and inherently must be — at the mercy of outside forces when they choose which food and other items to purchase and/or consume.

Currently, we are being manipulated into eating unhealthfully. Thus, governmental efforts to change our eating habits are not a violation of our freedom, but rather an important way to push back against all of the ways in which people are manipulated and harmed by industrial food production.

Objections to laws that are designed to make eating healthier, therefore, do not merely ignore the costs that unhealthy eating by some imposes on the rest of us and on society. Such objections also fail on their own terms: A government cannot take away freedoms that we do not (indeed, that we cannot) possess.

What Would You Eat, If You Could Eat Whatever You Wanted?

Because the consumption of food is such a basic, life-sustaining function, our eating habits are formed long before we have any capacity to make mature, informed decisions about what they should be. We hope that children will be reared by loving adults who will teach them good eating habits, but some children lack such adult supervision. And even for the majority of children, who are raised by at least one engaged adult guardian, their eating habits will be shaped by adults who were (and are) themselves the product of a socialization process that most have never even stopped to reconsider, much less to challenge.

Some might object that, notwithstanding differences in parenting, it is simply "natural" for people to eat some types of food. But this contention completely ignores differences in cultural views about food. People who grow up eating insects view such a practice as entirely natural. Most Americans view the eating of a dog as morally repugnant, but the eating of a cow or pig as natural. Yet none of these "choices" is, in fact, natural in any meaningful way — as the dramatic cultural differences between what eating habits are viewed as "natural" demonstrates.

One might suggest, then, that rather than relying on culture or nature to define what is a good diet, it might be possible to rely on science to define an optimal — or acceptable — diet. Unfortunately, however, corporate food interests have long exerted significant influence on government pronouncements about nutrition. The idea that a healthy meal must include meat, for example, was a creation of industry-led research designed to normalize something that is not at all a normal or necessary part of healthy human living.

Moreover, once a society has reached a point where there is something that is called a "normal diet," freedom of choice becomes an illusion. People are constantly bombarded with advertisements reinforcing the idea that, for example, a celebration of a major life achievement must involve a steak dinner. Children are specially targeted by the food industry, with advertisements everywhere designed to convince them that they should eat sugary and fatty foods.

Finally, even for the small number of people who might try to ignore every social signal about what to eat, the freedom to buy what one wants is severely limited by the dictates of mass marketing. For example, travelers' options as to what to eat quickly at airports or highway rest stops are generally limited to chocolate bars and chips.

The bottom line: Exercising one's supposed freedom of choice in a world with artificially-limited choices is no freedom at all. And when the limitations on food choice are paired with government food information that is tainted with food-industry influence, our supposed freedom to choose only becomes more illusory.

Government or Corporations — Does it Matter Who Limits Your Choices?

In short, it is not possible to say what a person would eat if there were no artificial limitations on her choices. People's underlying tastes are constantly being manipulated by outside forces; and our ability to satisfy our choices (should they somehow deviate from the norm) is also artificially limited.

Therefore, when the government tries to change what people eat, it is not operating on a blank slate. Instead, people already face a busy marketplace of food messages. Thus, a person who objects to the government telling him what to do in this area of his life is, in essence, saying: "Don't let Big Brother tell me what to eat. I do what the Pillsbury Dough Boy tells me."

The false distinction between private corporations (the supposedly free market) and government (the interloper on free markets) goes even further, however. As I have discussed in a previous FindLaw column, there can be no market economy at all without a government. The government must set the rules about who owns property, how contractual relations are to be carried on, who must clean up messes, and so on. In food production, that inherent governmental role is especially important, because the rules governing all aspects of food production are so centrally tied to the rules on land use. Knowing what one can do on a piece of land — build a suburban development, construct a nuclear power plant, grow rutabagas, and so on — requires a government's setting land-use rules.

Moreover, it is not just the background legal rules that affect the food industry. As Sherry Colb recently discussed in a FindLaw column, for example, the dairy industry has recently petitioned the Food and Drug Administration to require that words like "milk" and "cheese" be limited to the lacteal secretions of cows. This is, moreover, hardly a unique request. Strict laws determine, for example, the difference between what can be called "orange juice" and what must be called an "orange drink." International disputes have been fought over the word "champagne."

The government, in other words, is inextricably involved in deciding what is grown and sold, how it is labeled and marketed, and who can buy it. The government's involvement in the food market is, moreover, the result of a classic market failure. Because the quality and types of foods in the marketplace — especially processed foods, but even raw agricultural products — are not transparent and obvious to every interested buyer, some mechanism must exist to tell people how to distinguish between, say, wine and grape juice, or between edible corn and feed corn, or even between food and poison.

Why Do Food Laws Exist? Assessing the Goals of Legislative Action

When news breaks that a government has changed a law relating to food, therefore, frantic complaints about "the food police" simply make no sense. The change in the law is salient to people who have grown used to the particular set of "choices" that have been imposed upon them by the food industry. Yet there is nothing even remotely disturbing or unusual about a government's enacting a law that will affect how and what people eat. The only question is whether the purposes motivating the legislation are legitimate.

If, for example, a state legislature were to decide that it wanted to discourage its citizens from buying certain foods because that food was sold by a disfavored group of citizens, then such a law should surely be challenged. Or, if a food regulation were to be changed simply in order to line the pockets of a public official's campaign contributors, then that would also be an illegitimate change. But if, on the other hand, the law is being changed to fight juvenile diabetes, then that is a legitimate use of government's powers.

Moreover, it is not even necessary to change the law in order to favor someone's business interests. When the government does nothing at all, that choice (or default setting, as the case may be) also favors some corporations' interests over others'.

Refusing, for example, to require fast food restaurants to reduce the calories of the meals that they serve, is not a neutral decision. Rather, that decision leaves in place the entire set of laws and corporate practices that have brought us to the point where fast food is now so harmful to health, including children's health. "Leaving the market alone" simply favors the incumbent corporations' positions in American food production. There is nothing natural or neutral about it.

In sum, government efforts to improve public health do not undermine freedom of choice in food consumption, because such freedom is illusory. Our choices are, and have always been, shaped by the interactions of governments' laws and businesses' interests. Changing those interactions in the interest of a healthier nation is both legitimate and, especially in light of our current health crisis, plainly the right thing to do.


Neil H. Buchanan, J.D. Ph. D. (economics), is a Visiting Scholar at Cornell Law School, an Associate Professor at The George Washington University Law School, and a former economics professor.

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