Gulp! The food industry just won the latest battle in the war on obesity. Earlier this month, a New York State Supreme Court Judge stopped New York City Mayor Bloomberg's plan to ban the sale of large sugary drinks, calling the ban "arbitrary and capricious".
The proposed ban would have limited the size of sugary drinks at some food outlets to 16 oz and formed a much-publicized part of Mayor Bloomberg's fight to make New Yorkers healthier.
Mayor Bloomberg is not alone in this fight. Other US states are taking action against food manufacturers too. Measures include proposed taxes on bad-for-us foods, bans on the sale of large quantities of sugary foods (similar to the proposed soda ban) and requirements that nutritional information be provided at point of sale.
Canada is not immune from the trend either. As an example, the Ontario Government set a bold target of reducing childhood obesity by 20 per cent in 5 years and plans to do so in part by regulating the marketing and placement of bad-for-us foods and requiring caloric information to be included in menus.
This attack on the food industry has sparked discussion about the role of government in our personal lives: When, if at all, is it appropriate for a government to impose behavioural restrictions in the name of individual health and safety, and why does it feel so different when these restrictions are targeted at food?
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It is hard not to draw parallels between these measures aimed at regulating the food industry and the high-profile regulation of other bad-for-us behaviour, like smoking.
In the case of cigarettes, the government employed a myriad of education and regulation-based strategies to get us to butt out: it restricted and banned certain advertisements, it restricted the sale of cigarettes to certain locations and people above a certain age, and it increased prices through taxes.
All of these same regulatory strategies are being proposed in some form or another in the case of bad-for-us foods: limits on marketing and advertising aimed at children, limits on portion sizes, not allowing sugary treats to be available at the cash register, not allowing the use of trans fats in restaurant foods, and of course, the ever popular proposals for sugar and fat taxes. In addition, the Government is requiring industry to provide more information to consumers than ever before on menus and product labels.
While we have historically (mostly) accepted government interference in the name of our health, something feels different when these measures are applied to food.
Maybe it has to do with the lack of clarity about the nature of bad-for-us foods, combined with the unique socioeconomic realities of food consumption.
Consider this: we know definitively that cigarettes are bad for us always and forever. There is no "sometimes ok", or "maybe just a little".
Food, on the other hand, comes in all sorts of shapes and sizes and it's hard to say exactly what is bad for you and in what quantities. Research is constantly evolving and sometimes the rules change (the whole egg yolk thing still confuses me - are they good for us or not?!?).
In addition, what makes food bad-for-us food is often a question of degree: unlike smoking, we're told time and time again that eating bad-for-us foods in moderation is ok.
Also different from cigarettes, food is sustenance. We all need it and, while it may be clear that good food is better than bad-for-us food, that choice is not equally available to everyone.
Much has been made of the research showing that bad-for-us food is far more readily available in low-income neighbourhoods, and that it is generally far more affordable than healthier options. Limiting access to bad-for-us foods will not force healthy eating on these communities the way that either removing access to, or jacking up the price of, cigarettes encourages non-smoking. Without access to different choices and the tools to make informed food choices, little will be accomplished. Unlike with cigarettes, a "just-say-no" approach won't work with food.
So what to do? We learned from cigarettes that education is not enough: telling people that cigarettes are bad for us didn't stop people from smoking, but regulating them sure did. And so, if we believe that the government plays a role in making us healthier, there is at least some regulation of the food industry that makes sense.
Perhaps this is the perfect opportunity for a libertarian paternalism approach. Compared to heavy-handed paternalism (the government limits individual choice -- i.e. you can't smoke in restaurants), libertarian paternalism encourages us to make the "right" choice by making it the default, but allows us to opt out if we want to. The idea is that people still need the freedom to choose what, how much, where and when they eat, but the government can push us in the right direction by making the default the healthier option.
For example, studies on the effects of menu labeling show that not everyone pays attention, but those who do are more likely to reduce their calorie intake. While limiting the size of sugary drinks may lead some people to purchase two drinks, in all likelihood most people who may have otherwise consumed more if it was available will limit themselves to the 16 oz they can buy in one container.
In my mind (for whatever it's worth), a good approach to behavioural restrictions in the case of food would involve using regulation to empower us to make the right choices - curb imbalanced marketing of bad-for-us foods, provide more information to inform our choices, limit portion sizes but allow us to go back for seconds. Combined with education and the re-investment of any "sin tax" dollars to promote greater access to healthy food options, we may find a happy medium that lets us have our soda and drink it too.