After the Hastings Center Report published my essay on Mayor Bloomberg’s health legacy — with its key ideas spread through the popular media (here and here) — vitriolic messages streamed into my inbox. The messages were not intellectual arguments supporting free enterprise or limited government. Rather, they were hateful, impassioned personal attacks. I expect to receive unfriendly mail when I write on politically divisive topics such as contraception, abortion, and firearms. But why does such hostility persist over public policies to discourage the consumption of decidedly unhealthy foods, alcoholic beverages, and tobacco?
Even the most ardent libertarians accept liberty-limiting laws to safeguard the public from infectious diseases. But, they ardently resist regulation of primarily “self-regarding” behavior, even in the face of an undeniable epidemiological transition from infectious to noncommunicable diseases. Food, alcoholic beverages, and tobacco cause enormous human suffering through heart disease, cancer, diabetes, and respiratory illnesses. And alcoholic beverages drive a secondary epidemic in horrific injuries—both unintentional, such as from car crashes, and intentional, such as from spousal abuse. Shouldn’t government act to stem pervasive suffering and early death, or at least try?
The tone of the venomous emails suggests that individuals are alarmed by the prospect of losing their freedom to consume whatever they want, irrespective of the health consequences. But the central premise of my HCR essay was that consumers are already inherently constrained in their freedom to choose by multiple forces. Bloomberg’s policies should be regarded as a corrective both to market forces and to a long, deliberate history of government policies that breed unhealthy living environments.
Businesses—driven by an overriding profit motive—market and promote their products aggressively. Their messages are persuasive and often confusing—for instance, “low fat” products are usually high in sugar, sodium, and/or calories. Athletes, movie stars, and pop idols endorse unhealthy products. Businesses often target children and adolescents, for example, with toys in fast foods, Internet or video games, and advertising in teen, fashion, or sports media.
The generally lower cost of unhealthy fast foods also occurs by design, facilitated by government policies, such as farm subsidies. According to the U.S. Public Interest Research Group, the federal government has spent $19.2 billion subsidizing corn and soy junk food ingredients since 1995. That dwarfs the $689 million allotted over that period for subsidies of apples—the only fruit or vegetable that receives a significant government subsidy. The Twinkie, for example, is made with seventeen taxpayer-subsidized ingredients, including corn starch, corn syrup, and vegetable shortening.
Government makes affirmative policy choices in zoning and city planning that shape an obesogenic environment. The built environment is structured to facilitate sedentary lifestyles. Government policies decidedly favor cars and roads over pedestrians, bicyclists, and mass transit. Government spends lavishly on roads, subsidizes the automotive industry, and perpetuates low taxation on gasoline. At the same time, walking and biking paths often are nonexistent or unattractive and unsafe. During the 1970s and 1980s, governments encouraged migration to newly created suburbs (and exurbs), making it hard to shop or recreate near home. A combination of government zoning and market forces resulted in the congregation of fast food facilities in poor inner cities, while making fresh fruits and vegetables less accessible and convenient.
The very character of many unhealthy products, moreover, drives physical and/or psychological dependency. It is now well understood that nicotine is highly addictive, while alcohol can also create addicts. Scientists are also beginning to find that cravings for sugar, fat, and sodium are in-built and hard to change. Once individuals are exposed to these products in high quantities, it is difficult to give them up. And it is important to remember that most of these personal preferences are first acquired at a young age, before individuals gain a measure of capacity and comprehension of the health risks.
Making the healthy choice is exceedingly hard, with so many forces pointing in the direction of cheap, accessible, aggressively marketed food, alcohol, and tobacco. Consumers, far from having unconstrained choices under the status quo, are actually heavily influenced in their purchasing and lifestyle decisions.
Those who continue to believe, in spite of these arguments, that healthy choices rest solely in personal responsibility might consider a simplifying hypothetical. When a corporation sells an unhealthy product to a consumer, is there a level playing field? Clearly not! The corporation has an economic incentive to sell that product irrespective of the harms that ensue. The government helps make that product cheaper and more easily accessible by subsidizing the ingredients and enacting ordinances that make retailers of that product virtually ubiquitous. The courts grant the corporation free speech rights to market aggressively with deceptive messages about health, fun, and vitality—often targeting youth. And the consumer in an inner city or rural community may not have access to healthier alternatives. Beyond these structural barriers to good health, the products themselves promote dependency, while behavioral patterns are formed at a very young age.
What is even more concerning is that unhealthy choices are not evenly distributed. Go to a McDonalds and you will see many overweight or obese individuals. Go to a poor inner city neighborhood or an Indian Reservation and you will see many individuals smoking and/or inebriated. Now notice those sitting around a conference table at a high-end business or academic meeting. You will see that most people are fairly fit and trim, smoking is almost unheard of and frowned upon, and at night higher-income professionals will mostly be drinking moderate amounts of healthy red wine. This uneven distribution suggests that there is much more than individual free will driving behaviors. Rather there are structural determinants in the places people live and work and powerful socioeconomic forces at play.
All in all, those burdened with meeting monthly bills and juggling jobs and families find it easier to make the choice that is less expensive, more convenient, and aggressively marketed. Biological forces, culture, cost, and built environments entice consumers to behave in self-destructive ways. I am not suggesting that individuals completely lack the free will to make their own decisions. What I am saying is that the default choice in today’s America is the decidedly unhealthy choice, but we can change that default without violating anyone’s fundamental rights.
As we enter 2014, Michael Bloomberg, through the creation of Bloomberg Associates, plans to use cities in America and globally as laboratories for large-scale experiments in public health, economic development, and environmental sustainability. As the vision of healthy people living in healthy cities expands, it will be fascinating to see whether public and political opinion allows it to thrive or whether it will continue to clash with rugged individualism.
Lawrence O. Gostin is University Professor and Founding O’Neill Chair in Global Health Law at Georgetown University Law Center, and a Hastings Center Fellow.