Sherry F. Colb

No Buying Soda with Food Stamps? Considering Mayor Bloomberg's New Health Initiative

By SHERRY F. COLB
Wednesday, October 27, 2010

Earlier this month, New York Mayor Michael Bloomberg sought permission from the United States Department of Agriculture ("USDA") to exclude sodas and other sugared drinks from the category of foods and beverages eligible for Food Stamp coverage. New York State, which administers the federal Food Stamp program locally, signed onto Bloomberg's request.

The proposed exclusion would last for two years, at which time the City and USDA could consider the impact of the temporary program and decide whether or not to make it permanent. The Mayor's stated goal has been to help reduce the epidemic levels of obesity and Type 2 Diabetes in the City's population.

In this column, I will consider the merits of this food stamps proposal.

Equality and Pretext

The first noteworthy thing about the planned Food Stamp exclusion is that it appears to single out poor people for an intervention that would limit people's ability to purchase what they want. This is important, because it raises several equality concerns: First, is the alleged health justification for the proposed measure a veiled attempt to control and regulate poor people? Second, even if such a measure is not pretextual, is it objectionable simply by virtue of its targeting poor people and the inevitable impact of that limitation, however well-motivated?

We can discern an answer to the first concern by observing that Mayor Bloomberg's proposal fits within his overall commitment to an agenda of improving the health of people who live in New York City. In his first term, the Mayor expanded the New York smoking ban to almost all indoor public spaces, and he has proposed further expanding it to beaches, parks, and plazas. The New York City Board of Health also banned trans fats from restaurants, and the City passed a law requiring that restaurants post the calorie content of menu items. None of the items on this agenda appears to treat people differently on the basis of socioeconomic status. It is therefore legitimate to conclude that the Mayor is not trying to stigmatize poor people who rely on food stamps but is, instead, sincerely committed to pursuing genuine health-promoting programs.

Put another way, the fact that Mayor Bloomberg hopes to alter the unhealthy habits of all New Yorkers -- through a combination of bans and information -- shows that he is not aiming to target poor people for regulation. Rather than viewing soda as a luxury food that poor people have not "earned" -- as some people who resent redistributive programs like food stamps tend to say -- Bloomberg apparently views soft drinks as garbage that the government should not promote or subsidize for anyone's consumption.

Why The Disparity Between Regulations for the Poor, and for Others?

Notwithstanding the Mayor's motives, however, there is no question that the Food-Stamp proposal is still under-inclusive: The Mayor is apparently against anyone's consumption of soda -- but it is only as to the poor that he has acted, via the Food Stamp program. One might wonder, if Bloomberg wants to make it more difficult for New Yorkers to consume sugary sodas, why doesn't he simply move to have such products taxed across the board? That way, every person -- whether or not she relies on food stamps -- would face a financial disincentive to purchase an unhealthful item.

As it turns out, there is an answer to this question: Mayor Bloomberg has indeed tried to persuade the New York State legislature to tax sugared drinks (at a half cent per ounce). His attempts have failed, however, perhaps due to opposition from beverage industry lobbyists.

Rather than deliberately single out the poor, then, Mayor Bloomberg seems, lacking other options, to be turning to a narrow, Food-Stamp-only, proposal in order to take the opportunity to alter at least some New Yorkers' consumption habits, in the hopes that visible beneficial results will increase the odds that later, broader, health-promoting plans will garner sufficient public support to pass. Recipients of food stamps would, in that sense, serve as a model by becoming healthier due to their lack of Food-Stamp-enabled access to soda -- less obese, and less prone to the ravages of Type II Diabetes -- and thereby encouraging the rest of the State to follow suit.

Defending Consumer Freedom?

One of the arguments mobilized against the Food-Stamp soft-drink ban has more to do with freedom than with equality, and therefore takes aim at smoking and trans fat bans as well, despite their equal treatment of different classes of consumers. This argument says that people have a right to decide what they want to eat without having the government intrude. Individual freedom, on this approach, ought to include the ability to make even foolish and self-destructive dietary and other choices. If you want to smoke on a deserted beach, despite the unhealthy impact of cigarette smoke on your lungs, you are accordingly entitled to do so. Similarly, if you want to consume the empty calories in sugary sodas, you ought to have that option as well. To restrict your ability to purchase and enjoy unhealthy products promotes your health at the expense of your freedom, much as a speech code might enhance the civility of public exchanges but only at the expense of the freedom of speech. The government, on this argument, should not force you to take good care of yourself.

One response to this argument is that the freedom to decide whether to eat healthy or unhealthy food can be illusory. Highly-processed sweeteners like the sugar and corn syrup in soft drinks are addicting, as Neal Barnard explains here, because they trigger the production of opiates in the brain. Therefore, if sugary products are available and easy to obtain, people will feel an internal compulsion to obtain and consume them, in much the way that people addicted to morphine will feel compelled to use morphine (or heroin). This may help explain why some people who want to lose weight nevertheless feel themselves unable to resist the temptation of sugary sodas and other sweets.

If some products interfere, by their very chemistry, with a consumer's ability to refuse them, then the government may have a strong interest in -- at the very least -- removing incentives that encourage their consumption. A person who is eligible for food stamps would thus lose the incentive to include sodas in their purchases, and this may represent a positive development. Short of an outright prohibition (of the sort currently associated with heroin), a disqualification from the nutrition category for Food-Stamp purposes is one way to help people fight their addictions.

Of course, once we consider this rationale for regulation, the unfairness of leaving wealthier people just as free to purchase sodas as they are free to purchase healthier alternatives does not vanish. It would still be far fairer to tax sugary sodas (and other unhealthful, animal-based, products like dairy, eggs, and flesh, that give rise to obesity as well as other, more serious, conditions). There are, accordingly, two under-inclusiveness problems involved in cutting sodas out of Food Stamp eligibility -- as to the targeted population (only people receiving food stamps, rather than everyone in New York City) and as to the targeted products (sugary sodas, instead of all unhealthy foods).

Why Not Ban Food-Stamps For and Tax Other Unhealthy Products?

When proposed measures are under-inclusive, it is important to understand why. As we saw above, we can rule out the hypothesis that Mayor Bloomberg -- the source of the proposal -- is actually uninterested in health and wants simply to target the poor for punitive intervention. He has tried to pursue health more broadly. Why, then, was he unable to do so, when it came to taxing sodas? Reportedly, it was due to resistance from beverage industry lobbyists.

People who sell unhealthy products cannot be expected to cooperate happily with measures that help deter people from purchasing those products. Time will tell whether sellers' efforts will prove to be successful in blocking the food-stamps exclusion. If not, positive health benefits among the food-stamps-receiving population may put to rest the implausible notion that beverage companies are taking a stand for the rights of the poor.

As for the question of product under-inclusiveness -- for instance, why sugary sodas but not cheese, eggs, and flesh products fall within the proposed ban -- the answer may be that animal-product industries enjoy an impressive ability to put out the message that their products are wholesome, notwithstanding the considerable evidence to the contrary. One notorious example of the animal-based food industry's resistance to the public learning about the dangers of consuming foods that come from a slaughterhouse, was the lawsuit that Texas cattlemen brought against Oprah Winfrey for food disparagement and libel, in connection with her statement on her show that she would never eat another hamburger (a statement she made after one of her guests explained that cow corpses were included in the feed given to live cows, a risky practice that can lead to the spread of bovine encephalopathy, also known as "Mad Cow Disease.").

One can only hope that prominent examples of people turning away from unhealthy, animal-based foods -- such as former President Bill Clinton's health-motivated decision to stop consuming dairy, eggs, meat, chicken, turkey, and all but a small amount of fish -- will allow the public to have increasing access to information about the negative impact of animal foods on their bodies. With world-class medical advice and every option in the world, this was Clinton's choice; that ought to give anyone who still eats the foods Clinton has given up serious pause.

Is Under-inclusive Better Than Nothing?

Some might argue that it is better to leave food consumption alone than to regulate it in ways that leave out many consumers (based on wealth) and leave out many unhealthy products. The Supreme Court has said, in Williamson v. Lee Optical Co., that outside the area of invidious discrimination (on the basis of such prohibited categories as race) "reform may take one step at a time," as a matter of Fourteenth Amendment Equal Protection. And the Court has also -- for good or ill -- not considered wealth and poverty as falling among the invidious, prohibited classifications. Mayor Bloomberg and the USDA may, accordingly, legally proceed with Mayor Bloomberg's plan to prohibit the purchase of soda with food stamps, consistent with the Fourth Amendment Equal Protection requirement, so long as there is a "rational basis" for addressing food stamps separately.

And, indeed, there are at least two rational bases for singling out food stamps. First, when the government administers the distribution of food stamps, it is effectively distributing food to nourish its poor population. In doing so, the government has a legitimate interest in distributing food that nourishes, rather than inflicts harm on, the population at issue. Allowing people to purchase sugary sodas with food stamps might be considered akin to offering alcohol at a soup kitchen -- both sugar and alcohol help to combat hunger (by providing calories), and both can be fun to consume, but both also foster ill health and would seem to have little place in a network that provides nourishment to the poor.

Leaving in place stores' ability to sell such products to individuals for cash, by contrast, may simply represent an acknowledgement that prohibition is a counterproductive strategy for approaching unhealthy substances. That is why, although alcohol and cigarettes do not qualify for food stamps, they are also not banned from sale at stores. To allow for the private sale of unhealthy food does not implicate the government in that sale to the same degree as qualifying the food for purchase via food stamps does. This is, in part, what makes it so urgent that we expand the availability of fruits and vegetables in public school lunch programs and limit the availability of highly-processed foods, along with dairy, flesh, and the abundance of grease that confronts children in many public-school cafeterias. And this step regarding lunches is important even though parents would continue to have the option of placing macaroni and cheese, hot dogs, sausages, and other unhealthful foods in their children's individual lunch boxes.

Second, a separate rational basis for aiming specifically at Food-Stamp recipients is that the problem of obesity is greatest among the poor. This is arguably because farm subsidies have distorted prices and made some of the most unhealthy, empty-calorie food the least expensive option on the shelf. When it is easier to afford soda than an apple, the person with the least money will most dramatically suffer the effects of this disparity in the form of poorer health.

The Cost of the Program: Troubling Stigma, But Only in the Short Term

Unfortunately, any limitation on what people can purchase with food stamps will have the effect of stigmatizing the poor relative to their neighbors. Under the Bloomberg plan, if you place cola or orange soda in your shopping cart and have enough money to pay for it, you will not encounter a problem at the checkout counter. Someone else with the same amount of money in the form of food stamps, however, will face an embarrassing refusal by the cashier to honor that purchase. This is one effect of the plan that raises questions, in a way that its denial of the "freedom" to consume junk food does not.

Nonetheless, in a short time, people would come to know what their food stamps cover. Just as they now know that they cannot use food stamps to purchase cigarettes or alcohol (under the federal Food Stamp Act), they will come to see soda in the same category. And once people who are not using food stamps learn the benefits of avoiding some unhealthy food, after two years of study, public officials may become more willing to take on the various industries that profit at the expense of human health and don the mantle of freedom in so doing.


Sherry F. Colb, a FindLaw columnist, is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her book, When Sex Counts: Making Babies and Making Law, is available on Amazon.

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