NYC’s noble experiment


It’s part of a journalist’s job description to be an unflinching, rational observer in the face of phenomena that tempt one to recoil or spew: a crime scene, a mass grave… in this spirit, and in the spirit of Bryan Caplan’s Ideological Turing Test, I asked myself, “What’s the best possible defence one could make of New York City Mayor Bloomberg’s proposed Big Gulp Ban*?” Bloomberg, as you may have heard, intends to outlaw the serving of sugary beverages in bottles or cups larger than 16 ounces at city-regulated food establishments.

Imagining the best defence of this measure is not the same thing as looking for the best defence that has actually been made. The mayor’s own pretext for the program had logical holes that Reason‘s Jacob Sullum quickly drove five tanker trucks of frappuccino through. Other defenders seem to have chosen one of two stances: the semi-cynical (“It will be popular, and while it is certain not to work, it might make future plans, ones that are actually effective in fighting obesity, easier to introduce”) and the fatuous (“As the biggest organic-kohlrabi consumer in Park Slope, I don’t drink sugary beverages, and I look down on those who do: therefore I support Bloomberg”).

The best full defence of an infringement on commercial freedom of the sort Bloomberg is proposing (with his “deputy mayor for health” along for the ride) would begin with an open acknowledgment that it is an infringement. Why pussyfoot when the subject is public health? The ban is only technically feasible because the city of New York, like most cities, already has the power to regulate food-service establishments. As the mayor points out, he—even He—cannot stop people from drinking as much Coke as they like.

His proposed interference, at the nexus between the vendor and the consumer, is comparatively minimal: the City insists only that if you want to drink 32 ounces of Coke on the spot without going to a grocery store, ye shall buy it in two 16-ounce containers. It’s significantly less obtrusive, really, than a simple tax on soft drinks would be. One senses the influence of Cass Sunstein’s hip “libertarian paternalism”, which favours subtle massaging of incentives and information—what Sunstein refers to as “nudges”—over the application of brute “thou shalt not” controls on behaviour and markets.

This, then, is the best defence of Bloomberg’s new regulation that an intelligent liberal could give. No, it is not, as it appears to be on its face, a grotesquely un-American act of obtrusive social engineering; no behaviour is being forbidden (or even necessarily being made more expensive) except the sale of a beverage in a cup of particular size. From a liberty standpoint, this jihad against the venti is quite evolved and respectful, and should scarcely bestir outrage in the land of the Whiskey Rebellion and the Eighteenth Amendment. Given the ominous dimensions of the obesity crisis, a law against big cups is quite analogous to the laws which ushered out unsafe glass pop bottles that were harming kids in the ’70s. Really, it is a matter of making the adult customer pause and perhaps reflect before he makes the kind of bad health choice he is—as the Mayor concedes—entitled to make.

I think that’s an account that could pass the Caplan-Turing Test—could perhaps pass it, as I say, better than any actually existing one. So what critiques are left to make of the War on Sugar?

Well, you can always cherry-pick history, even in the most liberty-loving countries, to find pretexts for social engineering by the state. That doesn’t mean such programs aren’t typically harmful in principle—and indeed inherently harmful, to the degree that property rights, economic freedoms, and free exchange are ends in themselves. That’s just what the individualist premise of our civilization means: that people get to eat what they want and smoke what they want and sleep with whom they want, and their preferences will be in some way respected, even at the expense of some monolithic social ideal of good citizenship or good health or good sense.

Stopping people from exercising preferences is harm. You say Internet Commentator X doesn’t think having a Big Gulp is an important freedom? Does he not see Commentators Y through Upsilon standing right behind him, making the same case against marijuana and hijabs and labour unions and skiing?

This innate prejudice against social engineering for its own sake, which ought to be strong in liberals but is utterly absent in Bloomberg, is paired with an empirical prejudice against social engineering because of the near-inevitable consequences—chief among them being that the institutions created to enforce a for-your-own-good law wander very quickly from anyone’s good but that of the enforcers. I stacked the deck a little by mentioning the Eighteenth Amendment, because it shouldn’t form part of the justification for anything: it took literally six years to go from the U.S.A. to go from “Let’s roust these poor addicted creatures out of the saloon” to “Let’s deliberately poison thousands of Americans to death, that the majesty of the law may be respected”. But the Eighteenth Amendment is worth mentioning, because modern-day prohibitionists never feel the need to accept its lessons or even acknowledge its existence.

When Bloomberg and his deputy mayor for health are ridiculed and their volumetric crusade is ignored, whom do you suppose will end up crucified by bureaucrats in defence of their “nudge’? The logic requires it. If soft drinks really are prematurely killing thousands, and a ban on large containers is the magic answer, how far will be too far when it comes to encouraging compliance? When it comes to “nudges”, we have to recognize a distinction between what is being enforced and the means of enforcement; the mildness and restraint of the former does not guarantee that of the latter.

But of course, soft drinks by themselves aren’t the problem. (It is only by ignoring historical context that we can see a plenitude of cheap, nutritious food, along with the lifespans of even the fattest among us, as a problem at all. Our collective condition must resemble a literal picture of Heaven to anyone alive before 1950.) Researchers have been seeking a smoking gun for the obesity epidemic for a long time, and corn syrup looks like an attractive candidate to some dietitians and doctors, but epidemiologists, a more rigorous lot, remain reluctant to move from “Obesity is a calorie problem” to “Obesity is a fructose problem”. Again, Bloomberg all but concedes that one law is not likely to have a discernible effect on the incidence of obesity—

—which, of course, isn’t truly a public health problem in the way that infectious diseases and second-hand smoke are anyway. Nobody literally gains weight because his neighbour likes Big Macs. And despite speculative discussion of inner-city “food deserts”, it’s impossible to imagine that very many people in the industrialized world gain weight uncontrollably because they would love some broccoli but can only find potato chips. (This is another idea that the epidemiologists like less than the dietitians; the latest high-quality evidence goes against the “desert” metaphor.) The soda war is one more step toward the transformation of “public health” into health regimentation—and ultimately behavioral regimentation.

21st-century obesity probably isn’t something that will be clubbed out of existence by public policy. My suspicion is that the ultimate “solution” will involve progress on two fronts: (a) a gradual stigma-driven shifting of harmful foods to the category of hazardous occasional adult pleasures, along with drugs and alcohol, and (b) future iterations of some of the technological fixes for fat and carbohydrate addiction that have already been tried. Olestra and fen-phen, to take two examples, came pretty close to working, and might have helped if they had been safe. (Actually, olestra is safe, but it, uh, kind of got a bum rap in the market.) There are always people who think it somehow unrealistic or deranged to imagine that technology can solve problems that arise when cultural evolution outpaces biological evolution; but that’s what civilization is, from the invention of plumbing to the soft contact lens.

Indeed, if soda pop is a unique problem, it is instantly solved the minute someone comes up with a truly convincing, totally innocuous zero-calorie sugar substitute. Granted, there is probably no hope left that conventional chemistry alone can accomplish this. Very clever people have been at it for too long, and the best fake sugars are still pretty crummy. Neutralizing the cola menace for good will require some sophisticated multiple attack on taste receptors, metabolism, and even neurology. Or maybe we just need to legalize the miracle fruit.

*[UPDATE, June 6: The “Big Gulp Ban”, as Colleague Wells noticed yesterday afternoon, doesn’t actually apply to Big Gulps, which are a trademark of the 7-Eleven chain of convenience stores. Mayor Bloomberg’s proposed serving-size limits on soft drinks apply only to “food service establishments”. In the New York City bylaws, retail stores, even those which serve hot food indistinguishable from what you’d get from a food cart, are specifically excluded from the definition of an “FSE”. I regret the error.]


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