Sugary Drinks, Happy Meals, Social Norms, and the Law: The Normative Impact of Product Configuration Bans
12 Pages Posted: 29 Jun 2014 Last revised: 17 Jan 2015
Date Written: June 27, 2014
What role should government play in discouraging harmful overconsumption? What modes of government intervention best strike the balance between effectiveness and political acceptability? It is well established that government has a legitimate interest in protecting the health and safety of the people, even from threats associated with their own choices and actions. In cases where a fundamental right or suspect classification is implicated, a purely paternalistic government interest may not be sufficiently compelling to justify infringement pursuant to strict scrutiny. But there is no fundamental right to sell or purchase particular products or services in particular configurations. Indeed, even the recent New York Court of Appeals Decision invalidating the New York City Sugary Drinks Portion Rule underscores that balancing public health goals against consumer autonomy and economic concerns is a policy decision for the legislature (not the health department) to make. Were such a rule to be adopted by a legislative body, the philosophical antipaternalism argument would not be sufficient to justify a counter-majoritarian constraint on legislative action. The appropriate question, then, is not government may do to prevent non-communicable diseases that are associated with individual behavior choices, but rather what government should do. This article argues that visibility is a key distinction between paternalistic measures like the ban on artificial trans-saturated fats in restaurant food, which have faced very little opposition in spite of adopting a heavy-handed, command-and-control approach, and measures like the “Big Gulp Ban” and the “Happy Meal Ordinance,” which are unpopular and have been strongly opposed by industry. While the high visibility of these regulations makes them less politically palatable, visibility might also be key to their positive impact – through their influence on social norms about appropriate portion size and balanced meals for small children.
Keywords: paternalism, social norms, obesity, public health law, sugar sweetened beverages, soda, nutrition
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