Time to Cut the Fat: The Case for Government Anti-Obesity Legislation
McGuinness, Stephen A., Journal of Law and Health
I. INTRODUCTION II. THE NATURE AND CAUSES OF THE AMERICAN OBESITY EPIDEMIC A. Rates of Obesity and Overweight Have Reached Crisis Proportions B. The Obesity Epidemic Is Responsible for Severe Social Harms C. The Causes of the Crisis III. WHAT CAN BE DONE TO ADDRESS THE OBESITY CRISIS A. The Government, Not the Individual, Is the Best Place to Address the Problem B. Potentially Effective Anti-Obesity Policies C. There Is a Strong Prima Facie Case for Government Intervention IV. THE PATERNALISM OBJECTION TO GOVERNMENT ANTIOBESITY LEGISLATION A. The Basic Anti-Paternalism Argument Against Government Intervention in the Food Industry B. Some Legislation Can Be Justified Entirely on Non-Paternalistic Grounds C. Can Anti-Obesity Legislation Be Justified on Paternalistic Grounds? 1. The Case for Paternalistic Anti-Obesity Legislation Depends Crucially on the Extent to Which the Food Choices of Americans Are Voluntary i. Whether an Extemal Agent Should Respect the Choice of an Adult Depends Importantly on the Extent to Which That Choice Is Voluntary ii. Are the Food Choices of Americans Wholly Voluntary? 2. If the Unhealthy Food Choices of Americans Are to a Significant Extent Non-Voluntary, Does this Sanction Paternalistic Interference? 3. What Kinds of Anti-Obesity Policies Would Be Justified on Paternalistic Grounds? 4. Can More Heavy-Handed Anti-Obesity Policies Be Justified on Hard Paternalism Grounds? i. Is Hard Paternalism Ever Justified? ii. Can Hard Paternalism Justify More Aggressive Anti-Obesity Policies Such as Product Bans? V. THE SLIPPERY SLOPE OBJECTION TO GOVERNMENT ANTIOBESITY REGULATION VI. CONCLUSION
Rates of obesity and overweight in America have increased dramatically in recent decades, with no end to the increase in sight. (1) The obesity epidemic has brought with it severe social costs. Obesity is a known cause of numerous fatal diseases and is responsible for tens of thousands of preventable deaths every year. (2) It is also a contributing factor to the development of numerous non-fatal health and psychological conditions. (3) Moreover, obesity significantly drains the public purse as a result of the billions of dollars it annually adds in increased government health care costs. (4)
Given the seriousness of the American obesity problem, there would appear to be good reasons for the government to implement aggressive new policies designed to curb, and even reverse, the national rate of obesity. For example, "full disclosure" laws requiring the conspicuous posting of nutritional information, and/or health risks, restrictions on the advertising of unhealthy foods, government subsidies for the production of nutritional staples, and the institution of a "fat tax" on particularly unhealthy foods. (5)
While there appears to be a prima facie case for the institution of such policies--based on the seriousness of the obesity epidemic--critics have repeatedly objected to these potentially effective policies on the grounds that government interference with the food industry would amount to government "big brother" forcing its vision of the good down Americans' collective throats. (6) Such critics argue that food choices are an entirely private matter, and that obesity is simply a matter of personal responsibility. In short, they conclude that the American obesity crisis is simply none of the government's business. (7)
This Article examines--and ultimately rejects--this anti-paternalism argument against government anti-obesity policies. It argues that government intervention in the food industry for the purpose of stemming the American obesity epidemic is justified and survives paternalistic objections to the contrary.
This Article begins by briefly outlining the nature, severity, and causes of the obesity epidemic. …