This piece seems to signal that Posner thinks certain forms of paternalism may be justified if there is a biological basis for the absence of rationality. That would seem to justify addictive drug prohibitions, even in the absence of externalities.

But this particular form of paternalism - shoving information in people's faces - seems relatively benign. Large-print calorie counts are a far cry from making decisions for people. Shoving information in people's faces might even promote rationality. Minimal paternalism doesn't seem to need as much justification as hardcore paternalism, like prohibitions.

It's nice to try to help people be healthy and informed, but this ordinance targets a symptom at best. Health warnings on cigarettes and alcohol have done little to sway smokers and drinkers just like nutrition facts on cookies haven't encouraged healthier eating. Yes eating out can sometimes be a mystery of ingredients, but knowing those ingredients at home haven't helped. People know what's healthy and isn't healthy, even non-health conscious people. Eating badly and not exercising are chosen behaviors that overbearing statistics aren't going to combat.

Changing America's health requires education, peer-pressure, and most of all healthy options. The unhealthiest states and areas are also the poorest, living on cheap fast food and processed food. Eating out is likely not the main culprit.

All I can say is, thank goodness for the dollar menu. A full meal for $3. I used to worry about inflation but these days I don't think America can afford inflation.

One line in this article is quite troubling: "...a child's choice of an addictive life style is not an authentic choice, to which society need defer." Perhaps there are extreme cases, as with drug or alcohol addiction, where a child exposed too early to such temptations is not making a genuine choice, and society many need to intervene. But most behaviours, habits and mild addictions which adults display are learned in childhood. Would Becker and Posner be so hard working had they not been encouraged, or even forced, to study as children? Disentangling what is a genuine choice from what is an addiction learned in childhood would be near impossible, as evidenced by the ongoing nature v nurture debate demonstrates.

"...possibly a gain in happiness if, as one suspects, thin people are on average happier than fat people."

Is there any reliable statistical evidence for this? Leaving aside the obvious happiness-inducing elements of gluttony (and its equally obvious downside), one would think that "happiness" is entirely too complex to be reduced to simple cause and effect from eating too much (or too little). If the argument here is for a libertarian approach to maximizing happiness, that would seem to run counter to a paternalistic approach to maximizing health.

Two words: nanny state.

Two comments:

1. I think that most fast food customers don't know what a calorie is and certainly don't understand how obesity effects themselves much less the externalities. Someone should have tested this before enacting an ordinance.

2. Gluttony and sloth are warned against in the old testament. I assume that the warning meant that an individual and/or a society could be injured by either or both. Extrapolating a little, how will we legislate against lust, greed, envy, etc.?

I am surprised that Judge Posner does not mention the behavioral experiment described in the first chapter of Cass Sunstein/Richard Thaler's book Nudge, where simple adjustments in the placement of healthy vs. non-healthy foods on a cafeteria line dramatically changed food purchase habits. Granted, even the most invasive city restaurant law probably cannot micromanage the display of menu items on a fast food restaurant's board, but if chain restaurants are truly concerned about steering customers toward healthier choices, there are things they could do like displaying large pictures of crispy fruits and salads on the waiting line, offering more salad items on their value menu, or offering the choice of carrot sticks (like Cosi does) instead of fries/chips. I can see terrific PR from doing this, just as Subway attracted customers with its Jared diet and "eat fresh" campaigns.

I worry this may have the detrimental effect of putting blinders on consumers and making everyone think only of calories.

Calories, it should be pointed out, are necessary for human life: they are measures of energy and we eat food for the express purpose of getting energy. I don't for a second mean to suggest that fast food provides good energy, but you can't think only of calories. Look at this absurd example...

A boneless, skinless chicken breast with a side order of broccoli has about 250 calories. A glazed donut from Dunkin Donuts has 230. Nobody would confuse this situation, but it illustrates that "cutting calories" is an overly simplistic way of looking at your health.

For a historical example, when I was growing up in the 1980s, the government informed us that eating fat in one's diet makes you fat. (This is actually not even close to the truth.) They therefore encouraged us school children to load up on breads, pasta, starches, and limit our intake of milk, poultry and meat, and anything with "fats and oils." Yeah, good luck with that. This advice turned out to be terrible. I would venture to say that the food pyramid we were forced to memorize has done more to contribute to obesity than all the fast food restaurants combined.

The point being, focusing in on the number of calories in a particular food is a very simplistic way of looking at things and can have unintended consequences. In health class, they drilled into us that "fat is bad" but didnt say anything about processed starches or sugar. So food companies boasted of their "low fat" and "no fat" offerings that were high in cheap, processed starches and sugars. This is what makes you fat, but since it was low in dietary fat, it had the implicit approval of the food pyramid and the ministry of truth that devised it.

Food companies may now have an incentive to invent ever more harmful chemicals that keep the calorie count low even as these chemicals destroy people's health in 100 other ways.

The only reason we have trans fats today is because government threatened to take action against saturated fats before.

There are always, always, always unintended consequences when government throws itself into the mix like this. They will pass this law and move on to some other concern, even as the secondary effects of the law continue to multiply in the future.

Giving consumers access to more information about a product, whether food nutritional facts, mortgage and car loan terms or medication side effects, enables them to make educated choices for themselves. This is quite the opposite of paternalism, where the government prescribes certain behavior. Thus the ordinance is about empowering people, not restricting them.

A health-conscious consumer does not, as Mr. Posner claims, have abundant information about nutrition, at least not when trying to order meal at a reastaurant. Quite often, even supposedly healthy dishes are high in saturated fat and calorie count. Disclosing food characteristics would provide consumers with an option to choose the healthiest food.

Furthermore, I cannot share Mr. Posner's pessimism regarding this policy. As people become increasingly aware of risks associated with consuming certain foods, they will improve their diets and consumption of damaging fast-food will decrease just like smoking in the past decades.

If the laws only target "fast-food restaurants," then what about fine dining establishments and diners? In many cases, the meals provided at those restaurants are even worse than what you get from fast-food. By emphasizing the calories in fast-food, we are thereby de-emphasizing the calories from non-fast-food and encouraging people to think that eating elsewhere would be healthier when, in fact, that is not the case. You may as well only mandate nutritional information be posted on cookies and not on cereals.

The advantage of fast-food is that it is fast. It is a convenience. It is already understood in our society that fast-food is generally fattening. It is also probably understood that the food in top-notch fine-dining establishments is also generally fattening, too, but we go after the fast-food restaurants...why? Because of a social experiment? If we are really concerned about obesity, and we are willing to use the government to fix the problem, the law should cover all restaurants.

There is little focus on why this is a proper role for government intervention at all. As Becker shows, the externality argument is weak and inconclusive. If people really want access to information at caloric intake, they can chose to eat only at establishments that disclose it. And if such a "demand" exists, some places will alter their normal practices to provide the demanded information. Maybe, however, when people go out to eat (at fast food places or elsewhere) they do not what to be nagged (even if only indirectly by "disclosures").

Becker and I, for example, are addicted to work.

Looks like work might be the gateway drug to a habit of self-congratulation.

Menus that must carry calorie counts. Next: "Warning: Driving this car burns x less calories per mile than walking."

In fact chairs should post warnings as well. It would be hard to calculate so how about this: sitting here can make you fat.

Computers should bear an especially stern warning. Staring at this screen is bad for your waistline.

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I am new to US.Back in India fast food is like drinking coffee at Starbucks.Its not a primary eating habit.

The mushroom crowd of fast food joints in US did surprise me.I had questioned myself all the above mentioned concerns and the reasons, this article did answer each one of them.

The fact that I see people loading up on unhealthy foods at the grocery store, where most food is labeled with calorie count, makes me pretty pessimistic about this new policy.

It also relies on a theory of weight loss that may be outdated and unhelpful. Gary Taube's book Good Calories, Bad Calories shreds the calories in/calories out hypothesis.

First, I wonder if the lawmakers behind the ordinance had evidence of a powerful causal link between fast-food consumers' knowledge of the number of calories in a product and their willingness to eat the food item.

Even with that relationship firmly established, as one reader's chicken-broccoli-doughnut example demonstrates, a calorie display may not have been the most effective way to curb obesity through city regulation. Since there doesn't seem to be a smoking-gun scientific consensus about the role that various factors play in causing obesity, it stretches credulity to think that the public would have a clearer understanding. That said, several readers' call for increased nutrition education -- firmly grounded in what we do know -- might be the best answer.

And finally, the food industry's ability to stay at least one step (if not several steps) ahead of city regulators might very well have the nasty side effect -- as one commenter noticed -- of exposing the fast-food eating public to various artificial flavors introduced simply to evade the calorie-directed measures. The worldwide fast food industry can easily muster its research and development capabilities when the alternative is becoming less profitable.

The issue seems much larger than just banning or limiting the number of "fast food" units in an area or insisting that they divulge what they are putting in their "food", but the whole model that has made them ubiquitous.

They've fine-tuned their model of profiting from cheap food and soft drinks combined with such low wages that among the "externalities" we might discuss is that of taxpayers subsidizing the difference between what the employees get in their paycheck and what the cost of a minimum existence costs.

Using this formula for 50 years they've frozen out other types of cafes. These would include the "Mom's" cafes and those catering to "merchant lunches" and diners where fairly wholesome "home cooked" food could be obtained even before the, moms going to work too, movement created such a huge market for eating out, or on the run.

Again, in a functioning democracy? there is more to the story than simply that of "the market" and as a community of human beings first and "economic units" or consumers for giant corporate interests, it is a part of our ongoing educational function to inform folks about the nature of the food they are putting in the only body they'll ever have.

BTW a tip of the hat to the many new immigrant or ethnic cafes that by dint of tremendous labor have been able to survive and provide a locally owned, tastier, and most likely far healthier alternative to the corporate juggernaut.

I'm reasonably well-informed about nutrition and health and only slightly overweight. I sometimes eat in restaurants covered by the new NYC law. I always knew that some of the offerings were very fattening, but I did not know just how caloric they were, or, of more practical importance, how large the caloric differences were in items that did not seem very different. I have noticed a tendency on my part to shift consumption to less caloric items even without decreasing my patronage of such places. I've lost a few pounds, too.

I have not had time to digest (pun intended) all the arguments on this issue, but my cursory recollection from law school, some years ago, is that the Chicago school of law and econ favors schemes that allow rational actors to make choices based on full information with low transaction costs. The NYC food ordinance is a step toward providing consumers with full information. How can this be harmful?

The only downside I see is the cost imposed on industry, which is minimal in the long run, once a few new menus are printed. Maybe it's a marginally-useful law, but it has near-zero costs. And given how poorly educated many consumers are about the caloric value of their food, it might turn out to be more beneficial than anyone imagined. For instance, I had no idea until recently that an order of fries has twice as many calories as a hot dog. From now on I will eat more hot dogs and fewer fries. :-)

Judge Posner, this is a totally new slant for you! Congratulations on setting forth your objections and then coming full circle to embracing health education by restaurants. It seems public schools cannot educate youth so maybe the young will become educated with their dining out dollar...children mimic, maybe even unconsciously internalize their parents' choices/behaviors so in a way they are just 'choiceless' captive amoebas....anything a society can do to become more efficient (efficiency translates into maximizing utility) whether in the human body or in the production of energy is positive however we 'vocabularize' the behavior....Here it would seem restaurants are actually protecting themselves from product liability litigation -- nothing noble about this. "Hey, we, the restaurant, will tell you this so we can continue making Billions off of you, the unconscious (or ignorant) consumer ....(recall lawsuit against fast food for making a consumer fat)I wouldn't really call what you and Becker do an addiction ... you two are like Elton John (making money while having FUN) ... except you don't sing it, just write and publish...an opera about economics and the law ... great idea; get on it Mr. Berlin. Be sure you and Becker are circulating your blood at least every 30 minutes (a little laughing yoga would work)...(now if you go into your 'muse' and stop sleeping and eating it could be dangerous if prolonged)...thank you for another fun post. (Great citation on the New York ordinance ... how do you cite a master's paper which has not been published (APA style)?)

Aw, co'mon. Fast food restaurants only exist because Americans don't want to spend time shopping for the ingredients to cook at home, preparing the food and cleaning up and/or having an apple for lunch. Cooking skills are not being passed along and a goodly number are ignorant about matters of health anyway. If you want to argue that point just spend a few hours in any emergency department in a non-upscale hospital which are used as walk-in clinics. The cost of alcohol use and abuse in terms of health and social disruption must far exceed a high calorie diet. Why don't we do something about that? So are we going to have speak-easys for burgers and fries? "Hey, buddy, wanna see my trans fats?".

This ordinance by NYC is just a little applied
Communications Theory. Better known as the "signal to noise ratio" and its impact on communication. Most food suppliers already supply caloric info on their products (a Federal requirement I do believe). Never mind the fact, that most times one needs an extermely powerful magnifying glass to read it.

You see, it's simply:

!!!SIGNAL!!!

to noise. Get the picture?

It might have some impact on lessening the intake of excess calories that leads to over-nourishment that leads to obesity which leads on to other chronic conditions (Ah yes! the causal chain and hope runs eternal).

One thing that the ordinance doesn't get into is the even more important aspect of physical activity and exercise. As my doctor keeps telling me, "You need to eat less and exercise a lot more. If you did that, you might actually hit your proper body mass level."

I know, I know, I'm trying! But, I jockey a desk eight hours a day and sometimes more. It's not like when I was younger and worked in the field.

David sez: Maybe it's a marginally-useful law, but it has near-zero costs.

jjjjjjjjj Yes! and when considering "costs to industry" those exist within our totality, ie. WE pay for health care and a lower standard of living/health.

"And given how poorly educated many consumers are about the caloric value of their food, it might turn out to be more beneficial than anyone imagined."

jjjjjjjjjj To some extent, but as literate posters here have testified many consumers KNOW the diff but for a whole variety of reasons may not be able to exercise their judgment; tight schedules, few cafe options etc. and we live in a VERY complex society where we can not all be experts on food, law, what sort of car to buy, the future price of oil, so it strikes me as well within the purview of FDA and other Fed or State agencies to enact reasonable precautions to protect the consumer.

Perhaps its a better route than that of suing tobacco companies decades after the harm done was known?

It occurs to me that with this week's topic, we are getting down to some pretty atomic social problems. That has gotten me thinking at what point does the division of labor, for example, or the atomization of problem solving become inversely proportional. Is there a curve for that? If there is, I will bet that it is bell shaped. Get my drift?

Jack: "BTW a tip of the hat to the many new immigrant or ethnic cafes that by dint of tremendous labor have been able to survive and provide a locally owned, tastier, and most likely far healthier alternative to the corporate juggernaut."

With all due respect, that is a very rose-colored view more inspired by one's political inclinations than by fact. Unless the restaurant strives to be low-fat or whatever, most, including the mom n' pop ones, have no more interest in keeping calories down than any fast-food chain out there. How many mom n' pop restaurants do you think are out there testing their offerings for fat content and the like? None. We put more blame on the big chains only because they have the resources to do that kind of research.

And let's not forget that chain restaurants are more stringent with meeting health and cleanliness standards. Your average McDonald's is cleaner and more sanitary than the average mom n' pop/local ethnic restaurant. Getting fatter is one thing, getting food poisoning is another. Now, that doesn't mean that I won't eat at a little Chinese dive -- I love ethnic eateries as much as the next person -- but I know the odds. There are some sketchy places I avoid.

I think the interesting question is, if we see that it is unreasonable to only target fast-food restaurants for open disclosure based on the fact that fast-food isn't the only unhealthy/fattening food out there, what costs will we be imposing on those mom n' pop restaurants that will now have to expend resources to have their menus tested? How many of those restaurants will be unable to afford that additional compliance? And will we be better off with fewer mom n' pop restaurants around? As much as Jack hails those plucky entrepreneurs, I wouldn't be surprised to see many of them having a big problem with fitting in testing costs under their already-thin profit margins.

James: Good comments and I agree with many of your points.

Perhaps I do favor a politic and economic view that is not all that entranced with corporations taking over most of the turf that was one left to local business owners and that relies upon paying substandard wages in order to pump the profits out of the locale to some far off HQ's or to the brokerage accounts of wealthy stockholders. As many of the fast food chains at least have local franchise owners they're not quite the prime example as is the Walmart model that has so effectively killed off local merchants, depressed wages and produced one of the fattest bottom lines in history.

I do give ample credit to Walmart's use of modern tech and etc as I do to fast food chains for their mechanization and "product development".

I've not read the NYC statute but would assume it directs its focus to the large chains where it's not much of a burden for them to divulge what they put in a "french fry" that bears no resemblance to the potato that was once part of the name or a "milkshake or softee"

IN terms of economics can it be that when a machine become ubiquitous that "the market" can no longer be relied upon in terms of the competition that a single restaurant faces to ensure quality and value at varying levels of price and service? And therefore must face more regulation? I would think the answer is yes.

BTW if you're concerned about the odds of food poisoning perhaps what you eat is more important than were you eat it. In a Congressional debate over putting in more inspections of seafood some years ago I learned that incidences involving seafood were among the lowest @ 1 in 150,000 meals if one included raw shell fish. Chicken is the worst having a rate of 1 in 25,000 and of course ground meat ie burger is far riskier than is solid meat and the reason burger is always cooked well done these days.

As for being better off with few Mom and Pops, I suppose that logically speaking IF the chains are subjected to more intensive inspection, I'd assume the answer to be yes. But! here in Anchorage all appear to be inspected the same, and were a customer to get sick in one of the local cafes I frequent the owner could be quickly notified. Have you had any luck giving helpful feed back to a corporate chain?

And thanks! for a well reasoned response, Jack

A reason the ordinance may very well work is that for once, the alibi of "ignorance is bliss" can no longer be applied. It is possible that a person did not care about calories because he/she was not aware of the quantity. Now that the information is thrust upon everyone, new "calorie-conscious" people will be created. Thus, we have a constantly growing population of calorie-counters, rather than the original people with the "natural incentive."

Analogously, it is not likely that a person will react to carbon monoxide until it is too late. This ordinance acts as an alarm, protecting the eater.

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Jack: The fat "bottom line" of WalMart has also made things more affordable and available, so that even low-income folks stuck in the boonies have a full range of commodities they can afford within a relatively short distance. Although we like local merchants, would you like them so much if you realized that their inefficiencies actually gouged their customers?

Anyway, while I am cognizant that big chains can afford to do this research, once again we are necessarily giving smaller producers a pass simply for being smaller. And, unfortunately for Andrew, this hurts the ability to educate the populace, and even fosters ignorance. If we all see how "bad" fast food is, but see no information about the local diner's menu, then people may very well let their common sense go and decide that the diner's food is healthier. After all, if it wasn't healthy, the government would have required that information about it be provided, right? If your goal is truly to combat obesity, then selective information is not helpful. If your goal is simply to hurt fast-food restaurants, well, mission accomplished.

Judge Posner loses credibility when he does things like referring to fast foods as containing sugar and butter. Not likely!
What is in fast food? Perhaps high fructose corn syrup, and lard or margarine?
Information costs are just too high, aren't they.

James: Some truth......

"Jack: The fat "bottom line" of WalMart has also made things more affordable and available, so that even low-income folks stuck in the boonies have a full range of commodities they can afford within a relatively short distance. Although we like local merchants, would you like them so much if you realized that their inefficiencies actually gouged their customers?

............ I gave them credit for developing state of the art merchandising and inventory control et al. BUT! When such new tech generates FAT bottom lines wages should NOT be so low that taxpayers have to kick in a billion a year to subsidize the lives of their employees.

........ also the DO engage in predatory pricing until they've killed of the local guys. Let's hope our slumbering Anti-trust Division will be awoken by the next admin for both these cases and the oil heist.

Anyway, while I am cognizant that big chains can afford to do this research, once again we are necessarily giving smaller producers a pass simply for being smaller.

.......... Possibly. But when it comes time to improve standards, it seems wise to take a practical approach and make change where change is possible.

And, unfortunately for Andrew, this hurts the ability to educate the populace, and even fosters ignorance. If we all see how "bad" fast food is, but see no information about the local diner's menu, then people may very well let their common sense go and decide that the diner's food is healthier.

........... This seem like tap dancing. But... following it along, SURELY were the majors to lose market share to what either IS or is perceived to be better they'll either make improvements or .......... ramp up their propaganda!

After all, if it wasn't healthy, the government would have required that information about it be provided, right? If your goal is truly to combat obesity, then selective information is not helpful. If your goal is simply to hurt fast-food restaurants, well, mission accomplished.

......... I think of the problem as the health of the people who paid for the food being a top priority, of which the obesity epidemic is only a part. Today, sadly, but for fine dining, most restaurants appear to be designed to most efficiently get the money while doing as little as possible. Beyond the low quality food the whole combo of florescent lit rooms with hard cushionless seats where newspaper racks are prohibited. After all, god forbid that anyone linger longer than it takes to rapidly bolt their food.... which in itself is a cause of obesity.

Perhaps we're due for a paradigm change as Starbuck, Panera, and others are offering comfortable surroundings with WiFi, music etc along with (Panera) and healthy choice of sandwiches, etc and Subway while stuck in the zero ambiance past? does well with healthy products.