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Friday, June 15, 2012

Live Fat or Die: The Silliness of Taking a Libertarian Stand Against Anti-Soda Laws

I ask this with love, as a registered Republican: When will my fellow Republicans stop saying silly things against paternalism? My text for this plaintive homily is Mayor Bloomberg's proposed health code amendment limiting the size of sugary soda pop servings to cups of 16 ounces or smaller. The proposal has been met with angry protests about the nanny state's intrusions into people's private choices. State senator Tom Davis (Republican, SC) even denounced me as Orwellian for my statement to an AP reporter stating that government had the constitutional power, despite the 14th Amendment, to enact paternalistic regulations controlling the sale of food and drugs.

I am inclined to think that denouncing Bloomberg's proposal as Orwellian is like ridiculing the Food, Drug, & Cosmetic Act as a Stalinist plot or attacking "no smoking" signs in public buildings as a Maoist re-education campaign. Such hyper-ventilated rhetoric against ordinary regulation is making us Republicans look absurd. So long as government subsidizes healthcare costs, regulations to discourage obesity are society's self-protection, not nosy paternalism. Principled conservative will argue that these subsidies should be reduced so that insurance premiums will reflect the risk of the insured's behavior. Fair enough: I myself endorsed Candidate McCain's proposal to end the tax exemption for employee health benefits.

But no one believes that such subsidies will be eliminated entirely: As Mark (14:7) tells us, the poor we will always have with us, and, in the libertarian paradise envisioned by the Cato Institute and Philip Klein, there will be those who cannot afford insurance at the market-priced premium offered by insurers. We will either provide insurance to them at society's expense, or we will treat them after the fact in emergency rooms, right? Or do these people really think that we as a society will simply allow the imprudently obese, who refuse to purchase insurance at the market-specified premium, to keel over gasping on the sidewalk while we gingerly step over their twitching bodies?

Medicaid is a crushing fiscal burden in New York, and obesity plays an out-sized role in contributing to that burden. Discouraging obesity either through insurance premiums or taxes on sodas (and forcing the purchase of two 16 oz. cups is essentially just a soft-drink tax) is not creating a nanny state: It is avoiding moral hazard by forcing those who undertake risky behavior to pay part of the price of their risk-taking. Despite empty libertarian rhetoric about letting people pay for all of the consequences of their actions, we know that (as Mark the Evangelist might say), the healthcare-subsidized we will always have with us. We will inevitably end up paying for at least some substantial part of at least some folks' healthcare. So long as such subsidies exist, doing nothing about the effects of soda consumption on obesity is just letting soda drinkers slurp dollars out of their fellow citizens' wallets. That's not living free: It is just drinking and dying at the public's expense.

Posted by Rick Hills on June 15, 2012 at 12:53 PM | Permalink

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Neo-con^^^^^^^^^^^. You could have just summed it up like this, "If the government is going to control 1 thing, they might as well control everything."

Posted by: RunDMC | Jun 19, 2012 6:13:31 PM

Now Cambridge, MA is considering a similar ban... http://www.boston.com/yourtown/news/cambridge/2012/06/cambridge_mulling_soda_ban_sim.html

Posted by: Margaret Ryznar | Jun 19, 2012 12:04:17 AM

A comment in last linked article:

"(Notably, Kagan recently authored a unanimous Court decision that found states do not have the power to decide what animals may be turned into food.)"

That isn't a very helpful statement on what the ruling, concerning how a state law was pre-empted by federal law, did. As to "food freedom," more power to it in its proper sphere, but bad arguments about broccoli probably won't help it much.

Posted by: Joe | Jun 18, 2012 1:52:22 PM

Prof. Hills: If, in your own words (which I agree with), the Lochner-era (and pre-Lochner-era) Court upheld bans on oleomargarine that states implemented on "spurious grounds," then doesn't the fact the bans were "spurious" mean that at the least they should have been struck down under rational basis review--especially in the pre-Warren Court days when rational basis meant what it says (rather than simply referring to a mere hypothetical or the like)? I'm also not sure that spurious oleomargarine bans beget the constitutionality (or support on principles of non-injury to life/liberty/the pursuit of happiness) for state bans of e.g., meat.

As for National Meat Assn., I'm referring to Justice Kagan's repudiation of (libertarian) Judge Alex Kozinski's Ninth Circuit holding in the case, in which the judge writes that states are free to decide what animals may be turned into meat. While the substance of the case didn't require Judge Kozinski to address that question, address that question he did. And Justice Kagan, very much to her credit, went out of her way to crush that argument in her unanimous opinion.

See my Reason.com piece from last summer on Judge Kozinski's opinion in the National Meat Assn. case...

http://reason.com/blog/2011/07/01/scotus-to-review-judge-kozinsk

...and the NYT report on the SCOTUS case, in which the Times notes Justice Kagan's repudiation of Judge Kozinski's line of reasoning.

http://www.nytimes.com/2012/01/24/business/supreme-court-rejects-california-slaughterhouse-law.html

Also note my more recent Reason.com piece on what the SCOTUS "broccoli" question in the healthcare case means for food and freedom, in which I reference Justice Kagan's decision.

http://reason.com/archives/2012/04/07/can-the-government-force-you-to-eat-your

Posted by: Baylen Linnekin | Jun 18, 2012 10:26:30 AM

Maybe the proper header for this post should have began: "Live Fat AND Die."

Posted by: Shag from Brookline | Jun 16, 2012 3:14:12 PM

The question was curious to me since there is a lot of space between your typically expansive reply and the categories you listed. Some might not like your style and not only like the stuff you listed, which generally one might find mostly trivial in nature. Some might be insulted by the inference some might take from the comment.

Posted by: Joe | Jun 16, 2012 2:34:17 PM

Joe,

I did not say nor mean to imply that most comments on this blog are "simple sloganeering, pious platitudes, third grade vocabulary, trite shibboleths, predictable partisanship, ideological rhetorrhea, snarky and clever retort" in nature. The question, its thrust and implications, were soley directed to AE.

Posted by: Patrick S. O'Donnell | Jun 16, 2012 1:35:09 PM

Moving past my own words, which I cannot fairly judge, most comments on this blog are not of the erudite expansive nature as Mr. O'Donnell (as you wish) while still quite often not "simple sloganeering, pious platitudes, third grade vocabulary, trite shibboleths, predictable partisanship, ideological rhetorrhea, snarky and clever retort" in nature.

Though the final reply is a bit "snarky."

Posted by: Joe | Jun 16, 2012 1:23:04 PM

Having had time to digest AE’s comment (it helps in such cases to remain anonymous)…:

Well dude, would you be less put-off by simple sloganeering, pious platitudes, third grade vocabulary, trite shibboleths, predictable partisanship, ideological rhetorrhea, snarky and clever retorts, and references to material you’re familiar with?

Posted by: Patrick S. O'Donnell | Jun 16, 2012 1:13:56 PM

LOL = "Lots of Love"?

"Former AE,"

I'm not sure, but it seems I'm rather obtuse, as I can't understand what you're trying to say.

Posted by: Patrick S. O'Donnell | Jun 16, 2012 12:58:28 PM

LOL at Patrick O'Donnell. Can you be more pretentious?

Posted by: Former AE | Jun 16, 2012 12:53:12 PM

Erratum (second para., last sentence): "...and Aristotle believed incontinence with regard to spirited desires was less indicative of a defective moral character than any of the forms of appetitive incontinence."

Posted by: Patrick S. O'Donnell | Jun 16, 2012 12:44:51 PM

It is revealing to see the heat generated by this particular post and topic: matters of much more urgency and importance receive comparatively little attention.

That said, I think the subject matter is indeed important for several and perhaps not so obvious reasons which, accordingly, will take some time to flesh out. I find classical Greek philosophy of some help in this enterprise. Aristotle more or less assumed something like Plato’s triune division of the “soul,” involving rational, spirited, and appetitive parts, all three parts being independent sources of motivation. And Aristotle argued our non-rational desires (which, he believed, have conceptual and propositional structure, hence they contain thoughts about what is ‘good’ or ‘bad’ for oneself independent of reason as such) could and should be harnessed in the service of reason, in other words, non-rational feelings need to be disciplined and controlled, should we aim to realize our capacity for rationality and virtuous behavior, essential elements of our distinctively human nature. Akrasia, or weakness of will, generally speaking, is exhibited by those who habitually let their non-rational desires, especially of the appetitive sort, trump their rational desires (which concern, subjectively and objectively speaking, what is ‘good’ for them). To be sure, non-rational desires have an independent role as a source of value(s), the problem hinging on whether or not that value is accorded rational scrutiny wherein it might find its rightful expression in the person’s life as a whole. The three parts being one-part rational and two-parts non-rational desires, should work in harmony with each other toward the person’s good, such that an appetitive desire, for example, becomes “refined” or “educated,” thus fully integrated with one’s “educated rational judgment of what things are valuable, in what ways they are valuable, and why” (John M. Cooper). The strong or would-be moral agent must master the two forms of non-rational desire, and (strict or ‘unqualified’) akrasia is particularly germane to the “necessary” pleasures of eating, drinking, and sex (other forms of akrasia, for example, those having to do, say, with money or fame, resemble this ‘paradigm scenario,’ to borrow a term from Ronald de Sousa). The weak person who succumbs to mastery by or through their appetites is called incontinent, and Aristotle believed incontinence with regard to spirited desires was less indicative of a defective moral character than any of the other forms of appetitive incontinence.

It seems clear that our society is experiencing a plethora of negative (behavioral, health, economic, etc.) effects of sundry kinds from individual behavior that exhibits in grandiose if not egregious ways, appetitive incontinence (of the senses, as well as of the more ‘qualified’ or abstract and metaphoric kind). We might look at Mayor Bloomberg’s proposed health amendment in light of this bigger and disturbing picture, in which case it appears fairly trivial or inconsequential with regard to the larger fight against appetitive incontinence, a fight that in the first place must take place within the individual, albeit with support of family, friends, perhaps even the larger society, including, on occasion, government agencies. Yet even if trivial or inconsequential, the symbolic value of this proposal appears helpful insofar as it brings subject matter into the public fora for discussion, a by-product or spillover effect of which is perhaps an increasing recognition and more precise definition of the larger problem at-hand (no pun intended). I’m not particularly fond of regulations being used primarily for communicating symbolic messages or by way of accomplishing beneficial spillover or by-product (i.e., indirect) effects, but I’m inclined to see this case as an exception if only because it may in fact accomplish at least some concrete changes in behavior that benefit the individuals targeted, and therefore as well the rest of us. At the very least, it helps entrench, I think, a social norm (or norms) associated with the recognition of the myriad personal and social problems that come in the wake of widespread and routine behavioral incontinence with regard to appetitive desires. Such incontinence is hardly confined to the behavior of the lower and middle classes, indeed, I suspect it’s an affliction that plagues, in more insidious and consequential ways, the behavior of the upper crust. This point was made by one Fran Lebowitz in the latest issue of The New Yorker:

“’These are class issues,’ she said of Bloomberg’s soda scheme. She called the mayor ‘the Monarch of Minutiae.’ ‘Soda is the recreation—the summer house—of the poor. It’s an indulgence, and it’s something they can indulge in.’ Speaking of the Mayor, she said, ‘This man has eleven houses. That’s the self-indulgence of a billionaire.’ […..] “

As we learned growing up, two wrongs don’t make a right. And, in any case, the poor will hardly be denied their indulgences (such as they are), should they choose them, there no doubt being many creative methods folks will fashion to break the letter of the law or simply violate its spirit should it take effect. In any case, encouraging or apologizing for appetitive behavioral indulgence or incontinence does not, in the long run or on the whole, truly aid in reducing or eliminating the miseries or suffering associated with poverty (any more than we should be content with the self-reports of poor rural women who express satisfaction or happiness with their lives when lacking awareness of or belief in alternative possibilities). Still, Ms. Lebowitz made an arresting and, I think, important observation about the class-based orientation of our concerns.

Only ubiquitous forms of individual and collective states of denial, wishful thinking, and self-deception can account for the refusal by many individuals in our society to acknowledge and confront in a meaningful manner the fact that many if not most of us are truly terrible judges of what is in our self-interest (as that idea was first formulated in the history of Liberalism), of what is good for us, and appetitive incontinence merely reflects this fact. Of course we need to let people, in some ample measure, intimately experience the consequences of their mistakes (at least in a way consistent with learning from them), consequences that can be, in either the short- or long-term, rather painful. However, at a point when the material and immaterial costs of such mistakes become socially intolerable, the State is surely justified stepping in to the utilitarian benefit of the common good. We are, in other words, far weaker individuals than we care to confess or admit, and yet that weakness is not without possible address, and at least one of the enduring reasons for government is to help us when we are considerably less than rational, indeed perverse, in our preferences, owing to myopia, akrasia, a failure to exploit economies of scale involved in self-realization or grasp the meaning of diminishing marginal utility in consumption, hyperbolic (time) discounting, procrastination, what have you. The irrationality, incontinence, denial, and so forth that afflicts us can be seen as one reason why proposed legislation and regulation (e.g., the American Social Security Act or the British National Health Service) is often vigorously opposed ex ante for reasons that, post facto, that is, after such rules and laws have been instituted or passed, can barely be believed some years later (looking backwards, they seem patently ignorant or silly). With Robert Goodin, we might formulate Bloomberg’s proposal in terms of the model of “retrospective rationality,” which justifies legal interference “on the grounds that the individuals concerned cannot adequately anticipate [like cigarette smokers] their future [and non-perverse] interests.” Those with inordinate or incontinent appetites, behaviorally expressed, for instance, in the excessive consumption of soft drinks, are likely to believe their present pleasures or gratification far outweigh any possible future pains or health risks thus, like smokers, “lack[ing] a full and vivid awareness of the pleasures and pains of the alternative outcomes:”

“’While [the smoker] may antecedently suppose that the pleasures of tobacco outweigh the risks of pain, there is every reason to suppose he would think otherwise should he contract cancer—not just in the sense that anyone who gambles and loses wishes he had never gambled at all, but more importantly in the sense that he had badly underestimated the pains associated with losing the gamble. Policy makers who foresee this preference shift would, following retrospective rationality, be perfectly justified in prohibiting, limiting, or discouraging smoking.”

Now we need not imagine the hazards associated with excessive soda consumption as equivalent to smoking to appreciate the logic of this argument, which strikes me as more than an analogy and thus applicable to the instant case.

Posted by: Patrick S. O'Donnell | Jun 16, 2012 12:41:56 PM

A study on life expectancy is cited, but other studies probably provide some more nuance, while the overall sentiment is not a novel claim raised. It is hard for me to believe that it was not taken into consideration by those who proposed this measure.

The whole thing is unclear anyhow -- it basically addresses something that will happen years in the future. There is a reason to be concerned with current health care costs and who is to know that by the time the current group in question (often involving children) get older, medical advancements will change the calculus.

And, yes, costs alone is not the concern, but public health as a whole. Water purity, e.g., is a matter of public health overall. It isn't just a matter of saving health costs for those who might be contaminated. In the past, many tragically died before their time, but relatively cheaply in some ways, if we want to be heartless about it.

Posted by: Joe | Jun 16, 2012 10:49:11 AM

The problem with the whole discussion is that it overlooks studies that consider the fact that obesity shortens lives during which health costs are incurred. It turns out that the health care costs during the life of an obese person (or a smoker) are less than the health care costs during the life of a non-obese, nonsmoker. Addressing obesity can be justified on its own terms -- longer, healthier lives are a good thing -- but not in terms of health care costs.

http://www.plosmedicine.org/article/info:doi/10.1371/journal.pmed.0050029

"In this study we have shown that, although obese people induce high medical costs during their lives, their lifetime health-care costs are lower than those of healthy-living people but higher than those of smokers. Obesity increases the risk of diseases such as diabetes and coronary heart disease, thereby increasing health-care utilization but decreasing life expectancy. Successful prevention of obesity, in turn, increases life expectancy. Unfortunately, these life-years gained are not lived in full health and come at a price: people suffer from other diseases, which increases health-care costs. Obesity prevention, just like smoking prevention, will not stem the tide of increasing health-care expenditures. The underlying mechanism is that there is a substitution of inexpensive, lethal diseases toward less lethal, and therefore more costly, diseases [9]. As smoking is in particular related to lethal (and relatively inexpensive) diseases, the ratio of cost savings from a reduced incidence of risk factor–related diseases to the medical costs in life-years gained is more favorable for obesity prevention than for smoking prevention."

Posted by: Jim | Jun 16, 2012 10:11:58 AM

Republicans are supposed to look absurd, so what's the big deal?

Posted by: Brian | Jun 16, 2012 10:11:02 AM

Baylen Linnekin writes: "I also wonder what support you have for another of your claims (in the linked SFGate piece) that 'any local government could ban red meat — or even all animal products — without violating a person's right to life, liberty and the pursuit of happiness[.]' The Court has never upheld such a law to the best of my knowledge -- certainly not on Declaration of Independence grounds -- and for it to do so would require it to embrace extraordinary (rather than ordinary) regulation. Justice Kagan (in her recent unanimous decision in the National Meat Assn. case), for example, held something quite the opposite."

Even at the height of the Lochner era, the U.S. Supreme Court upheld state restrictions on oleomargarine justified on (utterly spurious) grounds of protecting the health of the consumer. See Powell v. Pennsylvania, 127 U.S. 678 (1888). I think that you are also confused about the Court's decision this term in Nat'l Meat Ass'n v Harris: That decision held that that federal regulations implementing the Federal Meat Inspection Act, 21 U. S. C. §601 et seq. preempted California's rules regarding the treatment of non-ambulatory animals within slaughterhouses. NMA's holding rested on the very specific language of the FMIA's preemption clause and said nothing whatsoever about any individual's liberty interest in buying or eating meat. So far as I know, nothing in the FMIA would preempt a general state law banning entirely the killing of animals for meat as opposed to regulating the internal inspections operations of slaughterhouses.

The notion that there is some free-floating "anti-paternalism" norm within the Constitution is, I think, so obviously mistaken that it does not require a citation for its refutation. Such a view would wipe out swathes of Title 21 of the United States Code (dealing with food and drugs) that are utterly ordinary and completely indistinguishable from Bloomberg's quite mild regulation of drink sizes -- rules banning food additives, requiring various sorts of labeling, prohibiting the use of narcotics, and so forth.

Posted by: Rick Hills | Jun 16, 2012 10:08:05 AM

"Such hyper-ventilated rhetoric against ordinary regulation is making us Republicans look absurd."

I am as much a Republican as you are a libertarian, Prof. Hills, but I find it absurd (or silly, or whatever the proper wording might be) that someone who identifies as a Republican would endorse this rather extraordinary form of regulation and attempt to pass it off as "ordinary." FDR and his allies scoffed at the notion that the National Industrial Recovery Act was anything but an ordinary piece of legislation. But claiming it was so did not make it so.

Perhaps this is a question for another post, but I also wonder what support you have for another of your claims (in the linked SFGate piece) that "any local government could ban red meat — or even all animal products — without violating a person's right to life, liberty and the pursuit of happiness[.]" The Court has never upheld such a law to the best of my knowledge--certainly not on Declaration of Independence grounds--and for it to do so would require it to embrace extraordinary (rather than ordinary) regulation. Justice Kagan (in her recent unanimous decision in the National Meat Assn. case), for example, held something quite the opposite.

Posted by: Baylen Linnekin | Jun 16, 2012 9:37:14 AM

I stopped going to movie theaters on a regular basis since the 1960s. I watch movies on TV, so I am not against flicks. I was just not that comfortable in the theaters as snacks became a big draw, resulting in a lot of crud that might cause my shoes to stick to the floor, where some of the snacks were deposited, including spilt cold drinks. (Back in the 1960s-70s-early 80s I represented a group of developers of store front cinemas who relied upon financing from concessionaires given long-term agreements for their concession operations. I never used my "master pass" to watch the flicks they showed.)

Back in the days that I did go to movie theaters, the cold drinks - and popcorn - were not that gigantic. I did not become aware of this until a Seinfeld episode in which Elaine was at a concession stand and asked for a cold drink. The clerk asked "What size?" Elaine said "Small." When Elaine saw the cup the clerk selected, she challenged it as being "small." I don't have the URL for the episode, but it perhaps raised the point better than Mayor Bloomberg. Perhaps the customer should be provided better selection of size rather than the concessionaire. Let's have customer choice on smaller portions rather than permitting the concessionaire to impose large and even larger "small" size containers on customers. As a kid in the late 1930s-40s, a 6-oz. Coke was refreshing most of the time; but we could go for the 12-oz. Pepsi or Royal Crown if we were really thirsty. There were quart sizes available back then, but most of us could not afford the price or handle that much volume. Back then I was not aware of the amount of sugar in cold drinks. If I were, I might have stuck with the 6-oz. Coke or better yet a glass of cold water (Boston water has been great over the years).

Posted by: Shag from Brookline | Jun 16, 2012 9:24:34 AM

"contaminated water"

Unless movie theaters are selling big gulps of contaminated water, I don't know what the point of that is. Water purity is already regulated. As to studies, if you like, you can look at them. Lawyers Drugs Money blog, e.g., had a comment debate citing many of them.

Posted by: Joe | Jun 15, 2012 8:49:36 PM

"I'm not sure why reactions to this particular law drew that objection."

Blogging is always about reactions to certain things and this is a big issue in the news at the moment. What is so confusing here? It also, as noted, not a "ban" practically speaking. You can have the same amount of soda and drink it too. There is a smoking "ban" in public places in NYC.

"Then why isn't the government trying to outlaw anal sex?"

Drinking soda isn't being "banned" here. You can drink two 16oz. Putting aside that anal sex is protected by the federal Constitution at the moment. OTOH, having it in public places is "outlawed." Meanwhile, you can have as much soda at once in private as you like.

"nanny-state fascists stop pretending to be Republicans"

Why? Neither party is actually consistently libertarian and being Republican these days often means being a "nanny state" on certain issues like abortion, drug use, sexual practices and so forth. This is what actual Republican legislatures have passed for years. No "pretending" going on here. It is when they "pretend" to be libertarian that it gets annoying (btw Ron Paul is inconsistent there too)

Posted by: Joe | Jun 15, 2012 8:44:52 PM

I ask this with irritation: when will nanny-state fascists stop pretending to be Republicans?

Posted by: Kathleen Wagner | Jun 15, 2012 7:44:26 PM

Orin, just to be clear: NYC has not "banned" soda or its consumption in any quantity. NYC has simply proposed a change in packaging designed to prompt a change in behavior, not unlike posting calorie counts at Starbucks. As I say, this mild regulation (NOT prohibition) is likely to be ineffective precisely because it is so mild.

I wholeheartedly endorse your narcotics/soda regulation distinction you suggest -- but as a positive explanation, not a normative stance. There is an enormous status quo bias in popular attitudes toward the law that keeps the War on Drugs alive for forty-odd years (far longer than Prohibition of alcoholic beverages, which lasted a mere dozen years or so). But this bias in favor of the status quo is hardly a good thing: It suggests just how devoid of content the libertarian rhetoric directed against Bloomberg actually is. It would be nice if libertarian outrage over a mild regulation of soda pop might prompt conservatives into a bit more questioning of the War on Drugs, exclusionary zoning, or draconian restrictions on immigration. To Senator Tom Davis's credit, Davis has taken the politically provocative stance of denouncing the War on Drugs as well as the skirmish against soda pop. But that sort of reflection and consistency is, I suspect, rare in circles that mock Bloomberg.

Posted by: Rick Hills | Jun 15, 2012 6:57:38 PM

Then why isn't the government trying to outlaw anal sex? It leads to the spread of AIDS--which is very expensive for government subsidized health care to treat. Terrible, hypocritcal policy from Bloomberg.

Posted by: Murvin | Jun 15, 2012 6:28:36 PM


It makes more sense to charge higher insurance rates for smokers and the morbidly obese than it does regulating the size of sodas. People will just buy two bottles or cups. When I buy a an extra large size it it often to share with someone else (because it is cheaper),so this seems to me to be just another way to collect more taxes. And as far as healthcare costs go, why not ban all junk food purchases - no soda, no sugared cereals, no candy, no cake, no ice cream, no chips - nothing but milk, vegetables, meats, grains, legumes and fish from an approved list - for people who are Food Stamps or WIC or welfare or Medicaid? Seems to me I see a lot of EBT cards paying for crappy foods. On the government dole? Lose some choices. I pay for my own stuff. Leave me alone.

Posted by: Andrea Doherty | Jun 15, 2012 6:21:12 PM

Stop subsidizing health care. Two problems solved.

Posted by: Marlin | Jun 15, 2012 6:08:41 PM

Thanks for the response, Rick. If you're just objecting to rhetorical excess, I suppose that's fair, although I'm not sure why reactions to this particular law drew that objection. As for the tax/ban distinction, it seems pretty important: Even if the city lacks the power to tax, that doesn't seem to me an obvious justification for a ban.

Your comparison to the state and federal laws banning narcotics misses a distinction that I think is worth raising. Most people have direct personal experience with soda, so they have some basis for estimating its harms and the pros and cons of a soda ban. But estimating the harms of the drug laws is very hard for most people. Almost every country in the world has the same basic laws banning narcotics. Those laws have been in place for as long as any of us have been alive. As a result, it's pretty far beyond the ability of most people to gauge the merits of drug laws: Because pretty much every country has the same laws, and have for a long time, the most experience most people have with the merits of drug legalization is watching the episodes about Hamsterdam on The Wire. As a result, there's a sensible reason why people who oppose the soda ban aren't actively opposing drug bans: They may sensibly feel that they know enough about the social cost of widespread access to soda but not enough about the social cost of widespread access to narcotics.

Posted by: Orin Kerr | Jun 15, 2012 5:17:59 PM

Wait-what counts as saying something silly about paternalism? The CSA is almost certainly more popular than Bloomberg's initiative. Why doesn't it count as silly, or paranoid, to note that the CSA is a disaster? And why should we care that the CSA doesn't work, if we shouldn't care that Bloomberg's initiative won't? When will CSA-status-quo defenders reach for the same rationale you propose for Bloomberg's initiative?

Posted by: Thomas | Jun 15, 2012 4:46:51 PM

Just for the record, Orin, I did not say that objections to Bloomberg's soda regulation were silly. I said that calling such measures "Orwellian" was silly: It is the sort of rhetorical extravagance that makes us Republicans look paranoid. It was, in short, the language and style, not the policy position, about which I was complaining.

Of course, I agree that there are lots of good reasons to object to the cup-size limit. Most important, it likely will not work: A tax on sodas would be easier to administer and harder to evade. But the city lacks broad taxing authority, so I understand why Bloomberg would fall back on the city's charter powers to amend the health code.

On the "important values" that are allegedly implicated by taxing or otherwise discouraging unhealthy food and drink choices, I guess I find the libertarian merits of this position very thin. We are talking about a very modest tax on sodas, after all, not draconian mandates to perform calisthenics every morning. Why does such a measure implicate any "important" libertarian values any more than the Food, Drug, & Cosmetic Act's prohibitions of unsafe drugs or or NY's taxes on cigarettes?

If one really wanted to take a stand for personal liberty, one would begin by attacking a real invasion a liberty -- say, by urging the repeal of the Controlled Substance Act and an end to the War on Drugs. Few Republicans do so, although they denounce the Nanny State in its far more modest manifestations.

To his credit, Senator Tom Davis agrees with me that the War on drugs is a disaster and supports the repeal of the CSA. If the price of this sensible libertarianism is a little histrionic bombast about Bloomberg's very modest limit on soda pop, that's a price I am happy to pay.

Posted by: Rick Hills | Jun 15, 2012 4:20:15 PM

Live free or die.

Posted by: John Stark | Jun 15, 2012 4:16:20 PM

Rick, your argument is that objections to the soda bans are "silly" because "[s]o long as government subsidizes healthcare costs, regulations to discourage obesity are society's self-protection, not nosy paternalism." There are three obvious responses. You recognize and respond to the first, that many of the people who find the soda bans silly also object to at least some of the ways in which the government subsidizes healthcare costs. But there are two other arguments. First, there is not a clear fit between health care costs and this particular anti-soda ban. Second, even if there is some health care cost saving from the ban, there are a lot of important values at stake beyond mere cost. You might say that in your view the cost question must govern, and all other ways to look at the problem are "silly," but you don't say why you believe that.

Posted by: Orin Kerr | Jun 15, 2012 4:04:35 PM

That's right. Because there is another problem out there somewhere no can ever attempt to solve any particular problem. And the Mayor of New York has to extend his jurisdiction to Haiti. Please.

Posted by: CHS | Jun 15, 2012 3:14:27 PM

More people around the world get sick and die from water than from soda of whatever size or beer. Thousands of recent deaths in Haiti resulted from contaminated water, not soda or beer.

Ergo, it would be smarter to ban water than soda, and smart to send thousands of cases of beer to plague-stricken areas of the world.

Furthermore, I want to see the results of a study that tracks the lifetime medical expenses incurred by the obese, by smokers and by the breeders. Everybody dies, incurring the vast majority of medical expense in the last months of life, and it may well turn out the the obese and smokers who die young after 45 productive years in fact save society vast expenses incurred in later years.

The best way to cut medical expenses would be to ban the breeding altogether.

Posted by: Jimbino | Jun 15, 2012 2:57:28 PM

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