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Shifting the Focus: Food Choice, Paternalism, and State Regulation

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In this paper, I examine the question of whether there is justification for regulations that place limits on food choices. I begin by discussing Sarah Conly’s recent defense of paternalist limits on food choice. I argue that Conly’s argument is flawed because it assumes a particular conception of health that is not universally shared. I examine this conception of health in some detail, and I argue that we need to shift our focus from individual behaviors and lifestyle to the broader social and environmental context. Such a shift allows us to see the ways in which industry practices are negatively impacting our well-being (a broader concept than “health”). I argue that state regulatory activity surrounding the conditions under which food is grown, processed, marketed, and sold needs to be strengthened. As a result, there are likely to be some indirect limitations on food choice. These indirect limitations are justified, but regulations in which the goal is to change individual behavior or lifestyle are not.

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  1. 1.

    See http://www.cc.com/video-clips/xy6uk1/the-daily-show-with-jon-stewart-jon-stewart-tries-to-figure-out-what-he-s-allowed-to-put-in-his-mouth

  2. 2.

    Conly defends the NYC large soda ban in (2013b); she defends portion size limits across the board in (2018).

  3. 3.

    Some of Conly’s critics have worried about the distinction between means and ends. See, for example, Purshouse (2014) and Bhaskarjit (2014).

  4. 4.

    Conly is quoting Wikler (1983, 41).

  5. 5.

    Many of Conly’s critics have objected to the prioritization of health above all other values. For example, Resnik (2014) argues that health often conflicts with other things we value, such as pleasure, money, adventure, recreation, altruism, or religion, and it is not irrational to risk our health in pursuit of these other ends. Eyal (2014) notes that sometimes we engage in behavior that is self-harming, and the choice to do so reflects our current desires. Pugh (2014) agrees with Conly that health is a central value, but notes that we have other values, too, and agents might autonomously choose to prioritize one or more of these values over health. Sneddon (2016) notes that we can value incommensurate things, such as health and the taste of unhealthy food.

  6. 6.

    Neoliberalism is associated with market-oriented policies including privatization, free-trade, and deregulation. The important point, for our purposes, is that it valorizes individuals exercising choice and acting through the market, and decries the expansion government oversight and regulation. As Dorothy Broom notes, “The redefinition of citizens as ‘consumers’, and the ascendancy of privatisation and commodification have created circumstances in which health problems (and their prevention) become matters for the market rather than for civil society or the state” (2008, 134). For further discussion of healthism’s roots in neoliberalism, see Cheek (2008), Lebesco (2010), Michel (2012), and Guthman (2011).

  7. 7.

    For further discussion of the moralistic character of healthism, see Lebesco (2010), Metzl (2010), and Guthman (2011).

  8. 8.

    The calorie content of breast milk is not dependent on the diet of the nursing mother. Both breast milk and formula contain 20–22 cal per ounce (Hamosh 1996).

  9. 9.

    EDCs include diethylstilbestrol (DES; a synthetic estrogen given to beef cattle as a growth hormone for several decades), tributlythin (TBT; used in pesticides and fungicides and in the plastics used to store and transport food), bisphenol A (BPA; used in plastics used to store food and beverages), perfluorooctanic acid (PFOA, used in food containers such as microwave popcorn bags and pizza box liners). See Guthman (2011, 100–111).

  10. 10.

    See Darbre (2017) for a summary of research on the connection between EDCs and obesity.

  11. 11.

    The social model of disability is the prevailing model of disability in the disability studies literature. See Shakespeare (2013) for discussion of both the medical model and the social model of disability.

  12. 12.

    This approach to disability is characterized as the individual or medical model of disability. The individual/medical model is healthist by its very nature in that it individualizes disability. See Oliver (1981) for extensive criticism of the medical model of disability.

  13. 13.

    The final sentence of this paragraph is, of course, inspired by Rawls’ difference principle. See Rawls (1971).

  14. 14.

    I thank two anonymous referees for this point.

  15. 15.

    Note that Conly thinks nudges are more of an affront to autonomy than are paternalist regulations. She argues that they are manipulative since they bypass our reasoning process. See Conly (2013a), Chapter 1, for discussion.

  16. 16.

    The US Clean Air Act is an example.

  17. 17.

    The US Clean Water Act is an example.

  18. 18.

    I thank an anonymous referee for this point.

  19. 19.

    Although SNAP benefits should be increased regardless – the current benefit is not sufficient to ensure that people have the means to adequately feed themselves.

  20. 20.

    Bernard Rollin (2018) contests this claim by the meat industry. He cites a figure of $10 per year per family if we banned subtherapeutic uses of antibiotics. Rollin quotes a 1999 study by the National Research Council Committee on Drug Use in Food Animals (available here: https://www.ncbi.nlm.nih.gov/pubmed/25121246), but the figure is almost certainly higher now, 20 years later.

  21. 21.

    See Rollin (2018) for a fairly comprehensive discussion of the negative effects of conventional meat production.

  22. 22.

    The original compliance date was June 2018, but it was extended by one year.

  23. 23.

    See Conly (2013a, 41). Her discussion here is of the NYC trans fat ban, but the PHO ban is effectively the same thing on a national level. The FDA’s ruling on PHOs centered on the trans fatty acid component of PHOs.

  24. 24.

    Conly defines junk food as “energy-dense foods that are high in fat and sugars but low in vitamins, minerals and other micronutrients” (quoting Marie Ng, Tom Fleming, et al., “Global, Regional, and National Prevalence of Overweight and Obesity in Children and Adults during 1980–2013: A Systematic Analysis for the Global Burden of Disease Study 2013,” The Lancet 384, no. 9945 (August 30, 2014): 766–781.)

  25. 25.

    I don’t object to banning particular ingredients in “junk food,” as discussed above. The wholesale ban of such foods, though would be illegitimate.

  26. 26.

    In (2018), she stipulates for the sake of argument that the obesity “epidemic” is the result of contemporary diets, which include soda, “junk food,” and large portion sizes in restaurants.

  27. 27.

    Of course, there might be other health problems associated with “junk food”. However, since Conly’s focus is obesity, I confine the discussion here to the same.

  28. 28.

    Other response choices with non-zero totals were: “Public health Issue” (1%); “Health in general” (1%); “Can’t share/more money” (1%); “More important things” (4%); “Waste of effort” (9%); “Better ways to educate “(1%); “Doesn’t make sense” (1%); “Hurts poor people” (1%); “Other” (8%); “DK/NA” (3%) (New York Times 2012, 8). The poll was city-wide. 1026 residents responded to the poll. The margin of error is ± 3%.

  29. 29.

    Some of Conly’s critics cite the affront to autonomy as an objection to her coercive paternalism (Purshouse 2014; Resnik 2014). My response to the NYC residents is not a criticism of these critics’ positions. Constraints on autonomy are problematic, and many of Conly’s proposed legislative inititatives would include such constraints. My primary point here is that the large soda ban was not really an affront to autonomy.


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I wrote this paper while on a sabbatical funded by Eastern Michigan University.

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Correspondence to J. M. Dieterle.

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Dieterle, J.M. Shifting the Focus: Food Choice, Paternalism, and State Regulation. Food ethics 5, 2 (2020). https://doi.org/10.1007/s41055-019-00059-z

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  • Food choice
  • Paternalism
  • Autonomy
  • Disability
  • Obesity