Bloomberg, Sugar, and Obesity—Posner

I agree with Becker that one must be hesitant to recommend governmental intervention in personal choice. Government lacks good information about consumer preferences in a country as vast and diverse as the United States, and government is buffetted by interest groups. But the case for some government intervention in the obesity epidemic (and it is an epidemic—obesity begets obesity, as I’ll suggest) seems to me compelling. 

I am not particularly interested in saving the obese from themselves. I am concerned about the negative externalities of obesity—the costs that the obese impose on others. Some of the others are the purchasers of health insurance and the taxpayers who pay for Medicaid and Medicare and social security disability benefits. Though the obese die on average earlier than the non-obese, which reduces their average health costs somewhat, the reduction is more than offset by the higher health costs that they incur (and by incurring impose, to a considerable extent, on others) because of the effect of obesity on chronic health conditions such as diabetes, heart disease, and joint problems, on mobility generally, and, because of these conditions, on ability to work (and hence on social security disability costs) and on employability (and hence on unemployment insurance costs). Obesity kills, but slowly, and en route to dying the obese run up heavy bills that, to a great extent, others pay. 

Even more serious are the harmful effects of obesity, and of the food habits that contribute to it, on children. Obesity is sometimes a consequence of genetic factors but more often of gluttony, eating the wrong foods, eating between meals, drinking large quantities of sugared soft drinks (the straightest path to obesity), failing to exercise or even to move around, lack of self-discipline. These qualities “nourish” obesity and are in turn nourished by it, in a vicious cycle. Children who grow up in a household of obese parents (often there is just one parent, and she is obese) very often acquire the same bad habits. 

One might think that since most parents are altruistic toward their children, parents would strive to prevent their children from acquiring their bad habits. But if they don’t know how to avoid becoming obese themselves, it is unlikely that they know how to prevent their children from becoming obese. 

Then too, the more people in one’s family or circle of friends or coworkers who are obese, the more obesity seems normal. This is an implication of the fact that homo sapiens is a social animal. We want to blend in with our social peers. The more obese people there are, the likelier they are to think thin people scrawny, unattractive, even unhealthy. (That is why I called obesity an epidemic—it’s contagious, though as a result of social factors rather than of pathogens.) What lends impetus to New York Mayor Michael Bloomberg’s proposal to limit the size of containers in which sugared beverages may be sold is that two-thirds of the population of the Bronx is overweight and almost one-third is obese. There must be communities in the Bronx in which a majority of adults are obese. It must be very difficult for children growing up in such communities to avoid becoming obese themselves.

Bloomberg’s proposal is widely criticized, not only on the shallow ground that it interferes with freedom of choice, but on the more substantial ground that it can’t have much effect, since the same sugared drinks can be sold in smaller containers. But this misses two important points. The first is that the only reason for selling a product in different-size containers is that there are consumer preferences for the different container sizes; for it would be cheaper to sell all one’s product in identical containers. This suggests that if the sale of sugared drinks in big containers is forbidden, there will be at least a slight drop in the purchase of those drinks and hence in their consumption; there will not be perfect substitution of smaller containers; and this could be significant because sugared soft drinks are as I said the straightest path to obesity. 

More important is the symbolic significance of Bloomberg’s proposal (if it is adopted and enforced). It is an attention getter! It tells New Yorkers that obesity is a social problem warranting government intervention, and not just a personal choice. 

Think of the history of cigarette regulation. That smoking is unhealthful was discovered early on. (Oddly enough, the pioneers in discovering the link between smoking and lung cancer were doctors in Nazi Germany, and the Nazi government actually campaigned to discourage smoking.) But the initial steps to discourage it in this country were tepid—polite warning labels on cigarettes. Later, warnings were required in ads as well. Then the warnings in both labels and ads became scarier. Cigarette companies were sued for concealing the dangers of smoking. Zoning ordinances imposed increasingly tight restrictions on where one could smoke. The federal government banned smoking in federal buildings. Cigarette smoking fell, from an average of 40 percent of the adult population in the 1970s to 19 percent today. There is some grumbling about this massive governmental intrusion into consumer choice, but very little. I certainly am not grumbling about it. 

If there is to be a parallel movement to reduce obesity, it has to start somewhere. Maybe it will start with Bloomberg’s container proposal—an attention getter. Maybe it will grow. Maybe someday it will be as effective, and receive as much public approbation, as the anti-smoking movement.

Comments

[Howard Knopf]

Somehow, I'm sure that there are some class action lawyers somewhere beginning to salivate over this issue.

[AlSeen14]

There are so many issues with this law.

1) Nothing stops you from getting free refills or more than one cup.

2) What about movie theaters? I share a drink with my wife.

3) This requires a complete repackaging of soda. 20oz bottles will no longer be allowed to be sold. Even the 500 ml bottles are too large (16.9oz)

4) I find the belief that consumer choice is a "shallow" criticism to be sad.

[zhaoxi]

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[Terry Bennett]

For tonight's performance, the role of Mikhail Gorbachev will be played by Judge Posner, ably defending an idea that is intellectually beneath him (as I think someone said at the time).

The externalities inflicted by large sodas can be adequately addressed by taxing large sodas. Every smoker I've talked to in the past 20 years has cited the high cost of cigarettes as a more significant deterrent than the vague and far off health risks, which merely add cachet to the act of smoking, both identifying and self-identifying the willing smoker as someone courageous and ready to live in the moment. I would also point out, in stark contrast to smoking, that a kid standing next to me drinking a big soda is not going to make me fat.

And whose fault is it anyway that these externalities exist? We could elect as a society to let these people boldly face the consequences just as they boldly choose to defy the known risks. My neighbor thought he was so cool drinking in high school, and he is alive today only because we paid for something he could not possibly produce enough to afford - a team of doctors to extract the liver of a recently departed and use it to replace his own. Would it not be rational to conserve resources and let this guy die? The fact that he can't pay for his own transplant is proof enough that it's going to cost us more to keep him alive than we're going to get back on that wasteful investment.

If we had rational actors, it might make sense to allow drunk driving, and simply charge those who then kill with their cars as first degree murderers, having contemplated the act by choosing to drink and drive. One problem with that is alcohol's celebrated effect of combating rationality, so in fact I do support drawing the line farther up the hill where it is not too late to avoid the harms.

While I have elected to do the work and make the choices to maintain a respectable waistline in my 50's, my mother has been carrying a significant excess for as long as I can remember, and her explanataion is not only rational but refreshing: "I like to eat." Her body-double sister just died at 94. Who is someone else to say that the delight of biting into a pastry today must necessarily be traded for the socially mandated hedonistic ecstasy of being alive and wheelchair-bound in 2034?

The politics of the post-WWII era (and probably earlier) can be summed up as follows: "Hello, we're from the Democratic Party. We know more than you do, and all you need to do is hand over your freedom to us and we'll make your life better." It may well be that every word is heartfelt. I still am moved to quote both the words and the animus of Clint Eastwood in Gran Torino: "Get off my lawn!"

[Christina]

Michelle Obama's attempt at fighting obesity is much more appropriate than mayor bloomberg's. Educate the people! It costs virtually nothing and in the end is going to be much more rewarding (and it is also much more governmentally ethical). If people want to drink sugary sodas after tha, well, let them. The government should not support people who still only follow their short term benefit instead of their long term longevity.
Part of the whole cigarette campaign was to tell people "hey, this stuff is really really bad for you". Then came the high taxes. Education first, then taxation. Knowing how had this stuff really is for you really discourages use. Not enough, but it is a start.

[Edgar K. Browning]

Obesity does not generate negative externalities. The consequences referred to as externalities are not externalities at all. See "The Myth of Fiscal Externalities", Public Finance Review, 1999.

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[Joe]

Judge,

Your point about homo sapiens being a social animal is particularly apt with regard to high sugar foods. We have a biological impetus that is hard to counter rationally. Sugar drinks are a supernormal stimulus, and we are hard-wired to consume them in a way.

"Our sweet tooth is an evolved and instinctual preference for high-energy food. It wasn’t designed for chocolate cake. Chocolate cake is a supernormal stimulus. The term is owed to Niko Tinbergen, who did his famous experiments with gulls, where he found that that orange spot on the gull’s beak -- if he made a bigger, oranger spot the gull chicks would peck at it even harder. It was a hyperstimulus for them, and they loved it. What we see with, say, chocolate cake is it’s a supernormal stimulus to tweak our design wiring. And there are lots of supernormal stimuli. . . ."

Dan Dennett: Cute, sexy, sweet, funny, TEDTalks, http://www.ted.com/talks/dan_dennett_cute_sexy_sweet_funny.html.

[TANSTAAFL]

Bennett's post above is a breath of fresh air. Well stated.

To approach the issue on other grounds, why don't the folks who complain about the supposed negative externalities of obesity blink an eye at hyperaggressive EPA regulations that would exalt environmentalism over 400 years of industrial development that lifted mankind out of poverty? As a practical matter, it is hard to imagine any greater engine for spawning negative externalities than a witless government bureaucrat.

Consider also the irony of a federal judge, with constitutionally guaranteed life tenure and compensation, lecturing the citizenry about negative externalities.

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[Jonathan]

Excess sugar in the diet is just the latest excuse for ever more intrusive government and burdensome regulation. Consumer freedom has consequences admittedly, as some consumers make self-destructive choices and spread the cost of their choices to others through instruments such as health insurance. Such externalities are exacerbated by government regulation of the economy, especially government welfare programs and regulation of health insurance markets. Forced socialization of the costs of self-destructive consumer choices is what should be curtailed, and not the free and voluntary exchange of value between private parties. Federal subsidies for sugar production should also be ended.

But even without reducing other government interference in the economy, whatever harms are caused by excess sugar consumption might be reduced without government regulation, by recognizing the role of certain market actors in promoting sugar consumption under a product liability theory. Courts might enable civil liability for inequitable promotion and sales of a product that can be harmful only when consumed to excess, via a private right of action. For example, if Company 'X' promotes and sells sugary drinks in an inequitable way, and an ordinary consumer or class of consumers is reasonably influenced by the promotion and therefore consumes an excessive amount of X's sugary product, causing such consumer material physical harm, then Company 'X' could be made liable to pay damages to the consumer or class for the harm. A few successful lawsuits would undoubtedly decrease national sugar consumption without imposing any government regulations whatsoever.

[NEH]

affl, Moving from a Crypto-Anarchist mode to Red-Herrings, Strawman and Argumentum ad Hominems? No wonder the "New Right" just can't seem to get it right...

[Mitchell K.]

Posner's post is a bit peculiar considering his previous criticisms of other laws that have been justified on the basis of its symbolic value or its value as codified disapprobation of undesirable social behavior. Robert Bork and other social conservatives have been branded as busybodies by Posner in his previous writings for their tepid support of laws regulating sexual behavior (laws restricting homosexual sodomy, same-sex marriage, the production and distribution of hardcore pornography, no-fault divorce, fully nude striptease dancing, etc.).

However, laws regulating sexual behavior can be justified using the same kind of rationale outlined by Posner for Mayor Bloomberg's soda law; sexual permissiveness is an "epidemic" that imposes costs on society via higher rates of STD transmission and larger numbers of out-of-wedlock children that are partially supported by the state; children who grow up in a sexually permissive society acquire bad habits (creating a vicious cycle); humans are social animals who want to blend in with their peers, and if there are more promiscuous people then those who exercise sexual restraint are likelier to appear prudish, "unattractive, even unhealthy."

My point is not that laws regulating non-coercive sexual behavior are desirable but that it is odd for Posner to find virtue in Bloomberg's proposal even when it rests on shakier grounds than those that can be found in defense of Bork's social conservatism.

If one were to reread Posner's post with the word "obesity" replaced with "promiscuity," soft drinks replaced with premarital sex, and restrictions on container size replaced with quotas on birth controls pills, the parallels become much clearer.

Mayor Bloomberg's soda law proposal is yet more evidence of how social liberalism is no cure for government as a busybody. Social conservatives worry about the moral implications of who sleeps with whom but are mostly indifferent about people's dietary habits; social liberals are unconcerned about sexual promiscuity but fuss about what people eat (or drink, in this case). Does Bloomberg believe that abortions should be available on demand in New York City but that soda consumption should be monitored?

[NEH]

Mitchell, You know what I find amusing; that "Social Conservatives" are the first to complain about the power of the State to Coerce, but are the first to use that power of the State to advance their ideological agendas. Whereas "Social Liberals" accept the power of the State to Coerce and then utilize it in the Public Interest...

By the use of simple substitution, the worst can be made to appear the better, good as evil, right as wrong and virtues can be made into vices. And vicy - versy...

[Terry Bennett]

Dear NEH,

I don't doubt for a minute that the left means well. The problem goes far deeper than that. Throughout the centuries, human nature has been continually observed to bubble to the top and thwart the best of intentions. When it is said that "power corrupts", this is not a criticism of a person. It is an expression of a force of nature, to which all humans are subject, akin to "Speed kills" or "No good deed goes unpunished."

If we "accept the power of the State to Coerce", we necessarily accept the power of the State to Coerce for both beneficent and malignant reasons. The Founders considered it categorically foolish and ignorant of human nature to expect that anyone, from the right or the left, would be immune to the deleterious effects that inevitably accompany any grant of power. Their solution of choice was to limit State power in the first place. I am still burning mad on behalf of Roscoe Filburn.

[TANSTAAFL]

"By the use of simple substitution, the worst can be made to appear the better, good as evil, right as wrong and virtues can be made into vices. And vicy - versy..."

Nihilism? Or NEHilism? Is there a difference?

[Gordon Longhouse]

While government intervention to prevent obesity can be justified the manner and form such intervention should take is far from clear. Bloomberg's proposal is likely to do no good and its eventual failure will limit the credibility of other perhaps more effective intervention proposals.

Smoking is not a good analogy. Nicotine is known to be an addictive drug; there is no known similar addictive agent at the heart of obesity. Second hand smoke is a negative externality of smoking; there is no similar externality for obesity.

The fact is that we don't know enough about human eating behaviour and effects to know how to intervene to prevent its worst effects. Until we obtain more information any intervention beyond information campaigns cannot be justified.

[NEH]

affl, Once again, you've proved the point!

Terry, Yep... "Power corrupts and absolute power corrupts absolutely". The secret to good government lies in the ability to recognize, modify and revise as various programs or policies become ineffective or outright failures (Bloomberg's attempt at control, which may be misguided, but it is an attempt to deal with a serious social/medical/health problem). To paraphrase an old saying, "It's time to think anew and act anew - free of ideological constraints and cant"...

[Cardozin]

Corporate mayhem, perhaps?

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While government intervention to prevent obesity can be justified the manner and form such intervention should take is far from clear. Bloombergs proposal is likely to do no good and its eventual failure will limit the credibility of other perhaps more effective intervention proposals.

Smoking is not a good analogy. Nicotine is known to be an addictive drug; there is no known similar addictive agent at the heart of obesity. Second hand smoke is a negative externality of smoking; there is no similar externality for obesity.

The fact is that we dont know enough about human eating behaviour and effects to know how to intervene to prevent its worst effects. Until we obtain more information any intervention beyond information campaigns cannot be justified.
+1

[Anne Roberts]

I agree with Christina's post. The first lady's approach is much more scalable and cost-efficient. Bloomberg should rethink his approach.