In this section we briefly set out the principles of non-maleficence and respect for autonomy, see what adhering to these principles can imply for food firms, and illustrate this by touching upon some health-related issues.
Harm and Non-maleficence in the Food Industry
One of the primary principles in ordinary morality is the principle that one ought not to inflict harm upon others (cf. Beauchamp and Childress 2009; Feinberg 1989; Gert 2004). What harm exactly consists of is up for debate, but as Beauchamp and Childress state: “although harm is a contested concept, everyone agrees that significant bodily harms and other setbacks to significant interests are paradigm instances of harm” (Beauchamp and Childress 2009, p. 152, emphasis added).
There are instances under which harm might be legitimately inflicted upon others, namely when the harm is consensual. People often engage in activities that can bring about financial or bodily harm (e.g. they go base-jumping, consume alcohol and smoke cigarettes etc.). We commonly assert that such actions do not constitute a moral wrong, as long as the harm risked or incurred was done so knowingly and willingly by the persons involved in these activities. The notion that this is morally permissible can be traced back to the ancient maxim of volenti non fit injuria (“To one who has consented no wrong is done”) (Brink 2016). So, when a person consents to being harmed or is voluntarily exposed to the risk of harm – so there was no coercion, misinformation or undue influence – we cannot understand this as a moral wrong. Both this understanding of harm as well as the volenti principle have important implications for how to assess the (ir)responsibility of the food industry in selling unhealthy products.
The Regulated Wrongs: Non-consensual Harms to Health and Unsafe Food
In the context of the food market the possibility of harm is most clear in the case of unsafe foods. A company is blameworthy when it knowingly and willingly engages in sales activities that it knows can harm its consumers. We can speak of blameworthy harm when a producer intentionally makes use of ingredients that have harmful effects, or knowingly distributes tainted food. The latter for instance happened at the Peanut Corporation of America. In 2008 and 2009 the company was responsible for Salmonella contamination of 714 people, of which nine eventually died. The management of the firm was considered blameworthy, because it knowingly sold the infected food across the country, and actively tried to conceal the issue at hand (Leighton 2016; Marler 2018) .
In absence of clear harmful intent, firms can still be held responsible for harms that occur because of negligence. Food producing companies might be considered negligent when they unknowingly put products on the market that do not meet the required food safety standards. In these cases it is argued that even though they were unaware, they could or should have known this. For instance in 2012 the owners and operators of a melon farm had unknowingly introduced cantaloupe melons to the market that contained the harmful Listeria bacteria. The company failed to act, while there was a clear expectation that firm would care for this. As a result the owners of the farm faced up to six year in prison and a fine of 3 million dollars (Marler 2018).
In these instances food firms can clearly be held morally responsible for harms to health – and appeals to the volenti principle will not do. Consumers are not in a position to discern safe from unsafe foods, and if they would have a real choice, few would voluntarily choose for unsafe food. Precisely because they are not in a position to choose for themselves, we expect the government to secure food safety. The core implications of the principle of non-maleficence are thus governed by often strict legal regulations and inspections. Legal obligations of food companies to maintain food safety standards are therefore much more prominent than the concurrent ethical principle of non-maleficence.
A less Obvious Case: Negative Health Effects of Unhealthy Food Products
Following Barnhill et al. (2014) we make the distinction between unsafe and unhealthy food. Unsafe food in her view refers to foods that pose a risk of immediate harm (for instance food mixed with arsenic), foods that pose a risk of harm at any level of consumption (such as disease-carrying food) or products where the risk is induced through non-food substances (e.g. foods containing mercury). Unhealthy food products on the other hand are those products that significantly increase the risk of food-related health harms (such as non-communicable diseases), but do not pose an immediate harm to health, and whose risk-attributing components are food substances (e.g., salt, sugar, fat) (Barnhill et al. 2014).
Several public health professionals argue that unhealthy food products in themselves are a problem as frequent consumption negatively impacts people’s health, and therefore the sales of such products should be limited or even banned (cf. Nestle 2013). The problem with such a position is that it overlooks non-health values and the importance of consumer choice. While we do not dispute that health is essential and greatly valued by most people, that does not mean it cannot be weighed against other valuable experiences. Many consumers prefer the short-term hedonic pleasures provided by unhealthy products that are high on sugar, salt and fat, over avoiding elevated health risks later in life (Barnhill et al. 2014; Conly 2013). Unhealthy food products and eating practices bring pleasure in terms of taste and can be of social and cultural value. Now, given the possibility of consumer choice in this context, appeals to the volenti principle do make sense. So as long as people are able to freely and knowingly decide on what they consume there is nothing wrong in selling unhealthy foods.
This does not mean we cannot say anything about the moral impermissibility of promoting and selling unhealthy food products to consumers. The sales and marketing of unhealthy products would be harmful and thus morally wrong as a matter of non-maleficence if the volenti principle is not met – which is the case if there is insufficient room for autonomous decision-making. In the next subsection we explore in what ways consumer decision making can be unduly influenced in the sales of unhealthy products.
Undue Corporate Influence on Autonomy
Apart from the duty not to inflict harm, the notion of respecting autonomy is central to our more basic understandings of morality. As Beauchamp & Childress state “to respect autonomous agents is to acknowledge their right to hold views, to make choices and to take action based on their personal values and beliefs”(Beauchamp and Childress 2009, p. 103). It involves “the ability to deliberate, judge, choose and act upon different possible courses of action in both the private and public realm” (Held 2006, p. 263). This means that infringement of autonomy can take place both in the private realm (for instance in the market) as well as in the public realm (for instance in politics).
In business ethics the idea of respect for autonomy is often rephrased under the header of respect for consumer sovereigntyFootnote 3. This closely connects to one of the dominant assumptions in (classic) economics, namely that consumers are rational, autonomous actors that can make their own voluntary decisions. Corporations have to refrain from engaging in behaviour that would violate the autonomy of the consumers (Ebejer and Morden 1988; Hasnas 2009; Sher 2011). In regular market activities this principle is connected to the idea of honest dealing, meaning that transactions are only permissible as long as both parties knowingly and voluntarily consent to a deal (so indeed the idea of respect for autonomy, and the conditions of the volenti principle do coincide). In practice this means that when engaging with consumers firms should – at the very least – disclose all relevant information about a product in order to allow for the other party to make a well-informed decision. In addition, they should also refrain from unduly intervening in the decision-making process of the consumer (Ebejer and Morden 1988; Hasnas 2009).
If firms want to engage in morally acceptable behaviour, this means that they have to respect the autonomy of persons. The question of course is what kind of corporate behaviour can be seen as violating autonomy in these senses? Respect for autonomy not only entails that people have to be free to make their choice, it also implies that people have to be provided with information and reasons to make their choices. In our societal interactions we often do not merely provide information, it also entails persuading and influencing people. Providing people with information and communicating this to them in a fair fashion enables them to make their autonomous decisions. To illustrate this: we generally consider it laudable when a company informs a customer about the properties and potential value of a product or when the local government warns cyclists about dangerous crossings (cf. Sunstein 2016). Providing such information allows the individual to make a proper decision.
Still in reality this process of decision making is not always respected. Although straightforward coercion would will hardly ever happen in normal market contexts, other forms of infringement on autonomy do occur often enough. People are deceived, lied to, kept in the dark and manipulated. We briefly discuss these ways of influencing people, point out why they are problematic and illustrate this with examples from the food industry.
Deception, Lying and Keeping in the Dark
One way in which autonomous decision-making processes can be hampered is by intentionally controlling people’s information circumstances, leading to the creation of false or incomplete beliefs (Carsons 2009). Following Carsons we make the distinction between lying, deception, and keeping in the dark, as different ways in which informational circumstances can be impaired.
Lying can be understood as the act of making statements which one does not belief to be true (or rather, one beliefs to be false) with the intention of causing others to have false beliefs (Carsons 2009). This does take place in the food industry when firms make unsubstantiated claims about the nutritional value, health impact, or composition of their products. For instance the Dutch supermarket Jumbo advertised its ‘honest cornbread’, however – unlike the name suggested – the bread was not made of corn flour, but of regular wheat (Foodwatch 2017).
Deception is more subtle, but has the similar aim of causing another person to have false beliefs. A company deceives a consumer when it intentionally causes the consumer to believe something, while this something is false and the company also believes this to be false (cf. Carsons 2009). Deception can take many forms and shapes. In the food industry we see packaging and marketing that suggests that a product is healthy or contains a large portion of healthy ingredients, while this is not the case. For instance Sourcy’s Raspberry Pomegranate Vitamin Water, contains no raspberry or pomegranate, but does consist of substantial amount of sugar. The fruit and vitamins are at the front of the pack, while the nutritional value is in very small cryptic text at the back of the bottle (Consumentenbond 2017). By communicating these products in such a way people are tricked into believing that they are healthy, fruity etc.
Keeping in the dark can be seen as a special way of with-holding relevant information for how we see and evaluate productsFootnote 4. Rather than actively lying or deceiving someone, a person can also refrain from telling the truth (cf. Carsons 2009). An example of this is how the American Sugar Research Foundation (SRF) operated in the 1960s and 1970s. At that time the general public was unaware of the dietary causes of coronary heart diseases, and the impact sugar consumption could have on health. While research in the early 1950s already revealed this connection, the SRF purposefully prevented this research from reaching the public, leading a majority of people to continue to have incorrect beliefs about the negative health effects of sugar (Kearns et al. 2016, 2018).
While lying, deception and keeping in the dark are often seen as forms of manipulation, we propose that it can also be seen as covert interference with people’s decision making processes. Manipulation changes people’s behaviour, by sidestepping the normal process of persuasion and is in an underhand fashion changing the way people see their options (Groen-Reijman 2018).
Drawing on the work of Sunstein (2016) and Barnhill (2016) we find two ways in which such manipulation can be understood, namely as subversion of people’s reflective deliberative capacities and as subversion of people’s proper nondeliberative responses. Sunstein understands manipulation as actions that “do not sufficiently engage or appeal to their [people’s] capacity for reflection and deliberation” (Sunstein 2016, p. 216). In the context of the market subliminal and subaudible advertising might be seen as a straight-forward examples of manipulation, while other practices such as redesigning a website in such a way that people become more inclined to buy the more expensive product could be seen a borderline cases. For Sunstein this type of influence is problematic as choosers did not have the fair opportunity to make a decision of their own, due to the interference of a (hidden) manipulator. Autonomy is infringed upon at the moment the manipulator is leading a person to make a choice without sufficiently weighing – on the chooser’s own terms – the benefits and costs of a particular decision. People are not being treated with respect at the moment that their deliberative capacities are subverted (Sunstein 2016).
However, there are many choices and decisions people make that do not necessarily involve rational deliberation and reflection. Often our responses and behaviours in the world are not the product of our deliberative capacities, but occur emotionally and viscerally. For example, I feel attracted to my partner, I appreciate a pop song on the radio, and I enjoy the smell of freshly baked bread. None of these things are rational decisions, they come to me and I like them. These are what Barnhill calls proper nondeliberative responses. These responses should not be necessarily be understood as manipulative, for a person can reflect on them (Barnhill 2016).
In the case of advertising and sales we might argue that deliberative reflection and non-deliberative responses go hand-in-hand: we form proper non-deliberative responses (I enjoy the smell freshly baked croissants), we gather information (I read the price and nutritional value of a product) and on the basis of the our non-deliberative responses and the provided reasons and facts we engage in internal deliberation and reflection and come to a decision (I decide not to buy the delicious smelling croissant for I want to lose weight). Arguably, it would be impossible for us to navigate the world without relying on non-deliberative responses. Moreover, triggering these non-deliberative responses is of course a major and well-accepted element of common marketing strategies aiming to influence consumer choice.
Yet, these nondeliberative responses might also be flawed or improper due to undue influence of other actors. This can for instance happen by drawing spurious relations between products and desirable things. The tobacco industry marketed the cigarette as the torch of freedom, appealing to a subconscious desire to be free. While it is consistent with Freudian motivation theory to appeal to these elements, it does create a spurious relation, as smoking in no way strengthens one’s freedom. That same thing happens when Coca-Cola in its commercials tries to make a connection between drinking Coca-Cola, happiness, and healthy beautiful people. As a result many people will first associate Coca-Cola with concepts as happy, healthy, beautiful, rather than view it as the sugary, energizing drink that it really is. This in turn impacts the human affect heuristic. Advertisements or campaigns can create positive emotional responses to products, which pre-empt a careful rational decision making process. Playing on the affect heuristic leads people to make snap-decisions, due to their association with desires like happiness or freedom, rather than making a well thought-through choice (Barnhill 2016).
On this basis of the above considerations we argue that actions are manipulative when: 1) an actor intentionally thwarts a person’s rational deliberative capacities, and this person did not have sufficient opportunity to make a decision of his own due to this underhand interference of another actor; and 2) an actor intentionally triggers improper non-deliberative responses in a person that feed into his decision making process. Intentionally and covertly steering a consumer’s practical reasoning and practical engagement with the world can be seen as problematic, for by (partly) taking over the decision making process, the manipulator is treating this person as both a ‘tool and a fool’ (Wilkinson 2013). In extreme cases this involves exercising power over that person – steering his life in a particular direction, rather than letting him determine his own desired path, infringing upon both autonomy and human dignity (Barnhill 2016; Groen-Reijman 2018; Sunstein 2016).
Many marketing techniques involve at least some manipulation or deception – and most consumers will be aware of that. To assume that the principle of respect for autonomy must be upheld in the market as strict as it upheld in for instance medical ethics, is rather implausible. Yet we have not only invoked respect for autonomy as a self-standing principle, but it is also linked to the principle of non-maleficence via the volenti principle. In the next section we argue that corporate actions that are in tension with both principles simultaneously can indeed be considered morally impermissible. We illustrate how these moral tensions are present in the sales and marketing of unhealthy foods and beverages.