Food Fight!: The Legal Debate Over The Obesity Epidemic, Food Labeling, And The Government's Involvement In What You Eat
MANDATORY DISCLOSURE IS THE BEST GOVERNMENT REGULATION OF THE FOOD INDUSTRY
What type of government regulation is most effective when, through advances in food science, we have access to products that Mother Nature never imagined? Americans today are in a unique place in the history of our planet. Historically, humans have had to struggle to find enough calories in their environment and our bodies have evolved in response to this challenge. What happens when our hardwired preference for calorie-rich foods encounters a time and a place in which we can have almost as much calorie-rich food as we desire?
In 2008, New York City banned artificial trans fat from restaurant food served in the city. While this regulation has remained in effect and has made a choice for every consumer who dines in New York City, I believe that the government regulations that will be the most effective and most accepted by the American public will be those that require disclosure of information but leave us with the ultimate choice about our eating habits. An example of such regulation is California’s recent law requiring restaurants to list the number of calories in the items on their menus.
As Professor Ward Farnsworth points out in The Legal Analyst, the wisdom of the legal rules we adopt depends on the effect the rule has at the margins. To illustrate, imagine three groups of people with different relationships to restaurant food. The first group, “restaurant devotees,” will be undeterred from ordering their favorite restaurant foods regardless of the caloric information available on the menu because these individuals derive great joy from dining at restaurants. The second group, “health nuts,” will so rarely order food in a restaurant that their behavior will not be changed much by regulation requiring disclosure of caloric content either. The third group, “moderates,” is the group that Prof. Farnsworth would direct us to look at to gauge the effectiveness of California’s regulation. “Moderates” are the people who might change their behavior based on the information that the government’s regulation requires restaurants to disclose.
“Moderates” will note the caloric content of the items on the menu and I believe that a good number of them will either order differently (almost inevitably ordering something with fewer calories, as it is difficult to imagine many diners are looking for more calories) or begin to eat at home more often. From there, free market will lead restaurants to change in response to the more informed choices their customers are making based on the required disclosure of caloric content of menu items. Perhaps restaurants will offer smaller potions and corresponding lower prices or restaurants will change their menus to offer menu items that are healthier. These changes will happen without a government mandate that no one can eat particular types of foods (as is the case with New York City’s no trans fat regulation), which seems an overbroad regulation in light of the fact that unhealthful products are typically regulated but not completely banned.
The effectiveness of California’s regulation will no doubt be tested in the near future. I predict that there will be a notable number of people who state that they made some change in their behavior based on the information this regulation makes available. This type of regulation will also be the most acceptable to the American public because it educates us to make decisions about our health for ourselves and counts on the free market to react to our choices.
N.Y.C. Health Code § 81.08 (2011) Cal. Health & Safety Code § 114094 (West 2011) Ward Farnsworth, The Legal Analyst 24-37 (2007)
COMMENTS
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I agree that people should be able to make the ultimate choice of their own food consumption. The disclosure of contents would then serve for "informed consent" for people who would make a choice in contrary to the recommendation of government, provided that they would not criticize the government for failing to protect them. In this manner, it is also people who take the ultimate responsibility for their consumption. At the same time, I also see the positive side of governmental regulations. What would happen if the private entities do not accurately disclose the contents of food? Is there special contents, such as raw meat, that the government should ban to protect people from immediate danger of life? It seems as if there is a fair chance for balancing the rights of people to make choice versus the interests of people in their life.