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Will conceding government's role in telling food retailers how to market and sell junkfood put us on a slippery slope to freedom lost?
A duo of public health researchers, who share a history of examining how questions of nutrition, public health and "social justice" intersect, penned an Oct. 11 New England Journal of Medicine article laying out the case for government regulation of how and where grocers should be permitted to display candy and other high-fat, high-sugar foods. The two authors of the commentary, Rand Corp.'s Deborah Cohen and University of California Los Angeles researcher Susan Babey, argued that placement designed to spur impulse buying puts food decisions beyond the average person’s control, and thus contributes to obesity and related health problems.
“[Society’s] reluctance to interfere with or regulate the food environment is a direct consequence of the belief that people's food choices reflect their true desires," Cohen and Babey wrote in "Candy at the Cash Register — A Risk Factor for Obesity and Chronic Disease." "However, given the large proportion of people who claim that they want to lose weight and the small proportion who are actually able to do so, we must concede that human behavior doesn't always conform with professed goals."
“…many people…think that those who respond to impulse marketing simply lack self-control and should learn how to resist such marketing strategies,” they write. They dismiss that call for self-control. For a variety of reasons, they argue, “promotional displays of low-nutrient foods are both particularly influential and difficult to resist.” Such promotional displays, particularly on the retail high-value real estate at the ends of aisles and in the checkout lanes, tend to target shoppers when they’re “distracted, stressed or have made decisions that ‘deplete their cognitive capacity.’" (Translation: They've done so much exhausting thinking throughout the rest of the store that they’ve simply worn out their ability to be rational by the time they reach the cash register.) As a result, the combination of flashy presentation and irresistable convenience often overwhelms even the most resolute shopper’s ability to resist--even to bring themselves to simply look away, they write.
Should be regulated like carcinogens in water?
Because placement puts such a burden on the consumer’s ability to eat healthy, the researchers argue, it deserves to be regulated like other food-borne risk factors.
'We should treat it like carcinogens in water, because placement influences food choice largely automatically and out of our control'
- Cohen and Babey, NEJM
“…we should consider treating it as a hidden risk factor, like carcinogens in water, because placement influences our food choices in a way that is largely automatic and out of our conscious control and that subsequently affects our risk of diet-related chronic diseases,” Cohen and Babey say. “We need to test new approaches to risk reduction that do not place additional cognitive demands on the population, such as limiting the types of foods that can be displayed in prominent end-of-aisle locations and restricting foods associated with chronic diseases to locations that require a deliberate search to find.”
And lest you believe the article is simply a two-page thought exercise, it’s important to note an additional point that escaped attention of the news reports regarding the Cohen and Babey article. The Journal--which has not been shy in the past about leading crusades against other perceived unacceptable health risks like antibiotics in farm animals, direct-to-consumer drug advertising and tobacco products--follows up its Oct. 11 commentary on product placement with another two-page article carefully outlining step-by-step the legal arguments for why government has the authority to do precisely what the Cohen and Babey article suggested—control what can and can’t be placed where and when in a supermarket.
The follow up article, “Portion Sizes and Beyond — Government’s Legal Authority to Regulate Food-Industry Practices,” argues government has a legal right to impose food retailing restrictions, from New York Mayor Michael Bloomberg’s recent ban on large soft drinks to placement of items in supermarkets, to limiting sale of soft drinks in schools to banning products it considers harmful like caffeinated alcohol drinks. It argues that “industry’s” laundry list of objections to such heavy regulation—that government does not hold jurisdiction, that such regulations impinge on free speech rights, that they violate the Commerce Clause of the Constitution, that they violate the Equal Protection Clause by arbitrarily attacking one food or food group over another, or that they deprive consumers of due-process because they’re arbitrary—do not hold water from a purely legal standpoint.
That commentary’s authors, Jennifer Pomeranz and Kelly Brownell, from Yale’s Rudd Center for Food Policy and Obesity, may not be recognizable by name, but they likely will be recognizable by message. Brownell, a professor of both psychology and public health epidemiology , authored the 2004 book, Food Fight. In it, he argued individuals will never be able to beat the combined force of politics and industry that now controls their eating decisions. Instead, he argues, they require a unified movement “of Ghandian proportions,” as one reviewer characterized it, to push back against the forces controlling them through legal means.
As for personal responsibility, Brownell summarily dismisses it. “Personal responsibility,” Brownell first wrote in Food Fight, is simply a matter of rare individual skill or “biological fortune.”
“Choices people make are important,” Brownell reluctantly concedes, “but the nation has played the willpower and restraint cards for years and finds itself trumped again and again by an environment that overwhelms the resources of most people.”
'The overall welfare of the citizenry trumps certain individual or industry freedoms'
- Kelly Brownell, Yale
By 2009, writing in an essay for the Milbank Quarterly, “The Perils of Ignoring History: Big Tobacco Played Dirty and Millions Died. How Similar Is Big Food?” Brownell was even more blunt about where accountability rightly lies. “These points play well in America—personal responsibility and freedom are central values—but they obscure the reality that some of the most significant health advances have been made by population-based public health approaches in which the overall welfare of the citizenry trumps certain individual or industry freedoms.” In Brownell’s vision, personal responsibility is to be replaced with a heavy paternalism under the guise of corporate social responsibility. In fact, Brownell believes, any talk of personal responsibility, whether posed by tobacco companies or food retailers, is not a virtue, but simply a “PR script” designed to deflect responsibility and raise fears that government action usurps personal freedom. “Can one reasonably defend half a million deaths per year from cigarettes by provoking fears that freedom and choice are threatened...?”
Let freedom sting?
Legal scholars who disagree with Brownell's position have laid out a long list of objections to comparing tobacco to food from a legal standpoint. According to a lengthy legal review by attorney, doctor and Medical College of Virginia in Richmond Associate Professor Joseph McMenamin and Virginia attorney and medical doctor of philosophy Andrea Tiglio, those counterarguments run the gamut from the reality that obesity is caused by a host of factors--many beyond the control of farmers and food retailers--to the fact that food, unlike tobacco, is not addictive. Lawsuits against food-system participants for causing obesity, McMenamin and Tiglio write, not only have no reasonable basis in the law, but also risk causing damage beyond financial losses by eroding that individual freedom Brownell dismisses.
"Harm will be particularly likely if plaintiffs’ counsel succeed in persuading the public that overeating is an addiction, a disease," they argue. "This model denies autonomy to the obese, and teaches them that they are powerless over their own behavior. This sends the wrong message.The disease model excuses behavior that ought not be excused and disables the overeater from helping himself." That rush to excuse individuals from feeling the sting of their own actions not only has the practical consequence of trivializing obesity control and thus actually undermining the supposed public-health aims of those like Brownell and the New England Journal of Medicine, but it also has the pernicious effect of "[eroding] the philosophical pillars on which American freedom and democracy stand."
And that effect, ultimately, may be the highest price to pay for the increasing willingness to regulate freedom in food, says lawyer Baylen Linnekin. As executive director of the Washington, D.C. nonprofit Keep Food Legal, which advocates for the right to grow, raise, produce, buy, sell, share, cook, eat, and drink the foods of our own choosing, Linnekin has written extensively on the question of personal responsibility and government’s moral--if not legal--right to intervene.
'As America inches toward the misguided idea that smart people in government who think for us can solve our problems, we move further away from America's founding values'
- Baylen Linnekin,
Keep Food Legal
Despite what Linnekin sees as a troubling willingness by the legal system to entertain the idea that free choice in food is not a legally recognized right--New York Mayor Bloomberg, for instance, dismissed freedom of choice arguments against his soda ban by claiming it was not one of the “freedoms.... that the Founding Fathers fought for”--he argues food choice and the wider question of individual rights intersect intellectually, historically, philosophically and factually. Today's arguments over freedom to eat, whether raw milk or supermarket Snickers bars, enjoy a long heritage in this country. British economic aggression against the colonies like the Sugar Act, which often taxed and restricted the colonists food choices, are precisely the petty tyranny that finally drove those Founding Fathers to revolt. And although the Supreme Court has yet to uphold a fundamental right to food choice, several justices have recognized the right, including liberal Justice William O. Douglas, who argued the Ninth Amendment’s unenumerated fundamental rights includes “one’s taste for food... [which] is certainly fundamental in our constitutional scheme—a scheme designed to keep government off the backs of people.” Justice Stephen Field likewise recognized food procurement is an “integral fundamental right of all Americans, an essential element of liberty.”
No less than Thomas Jefferson, Linnekin says, argued that banning food had no place in America. Such bans simply substituted the individual judgement of free people with the blanket coercion of “[f]allible men” with their own set of prejudices and preferences. It’s a threat to the spirit of individual liberty that founds the soul of American governance, as pertinent today as it was two centuries ago.
“As America inches more and more toward technocracy,” Linnekin writes, “—the misguided idea that ‘smart’ people in the ‘right’ places in government who think for us can and should identify and solve all our problems— we move further away from America’s founding values.”
What’s the answer, then, to save the “preventably lost lives” Brownell believes will be the the price of not regulating freedom to be fat?
"Obesity litigation will further erode the sense of personal responsibility on which the nation was founded," say McMenamin and Tiglio. "...the obese should seek help not from lawyers but from doctors and, more important, from themselves."
Linnekin adds, “Rather than subjecting opinion to coercion, we should subject it to debate within the marketplace of ideas. …coercion has no role to play in our decisionmaking. We may render to God and/or Caesar certain limited powers, but individuals retain the rest. In short, it’s up to us to pick and choose which information we follow.”