Of Freedom and Fat: Why Anti-Obesity Laws Are Immoral

“Let me come straight to the point,” said New York governor David Paterson. “The state of the state is perilous.” Among the perils Paterson named in his January 7, 2008, state of the state address was obesity, which he claimed costs New York $6.1 billion annually and affects one in four children in the state. The governor enumerated measures that the state allegedly must take to fight this problem. These included banning the sale of “junk food” in schools and the use of trans fats in restaurants, applying special taxes to sodas and other sugary beverages, and requiring chain restaurants to post calorie counts of the foods they sell.1 Such measures, the governor implied, would save New Yorkers not only tax dollars but also lives.

Proposals of this sort are not limited to the Empire State. In September 2008, California enacted legislation that will force restaurants with more than twenty locations in the state to provide customers with brochures listing the calorie counts of their menu items by July of 2009, and to post the calorie counts on menus and menu boards by 2011.2 The Public Health Council of Massachusetts has discussed implementing similar calorie-count laws as well as a new “weight report card” to be given to schoolchildren four times a year in order to adjust behavior and reduce childhood obesity.3

Nor are such proposals limited to the states. At the federal level, a proposed Labeling Education and Nutrition (LEAN) Act, which has the support of the National Restaurant Association, would mandate nutrition posting in restaurants nationwide and would standardize which information must be included and how it must be displayed.4

What is the impetus for this fat-focused government intervention into the economy and the personal choices of Americans? And does the government have a moral right to take such measures?

The Draw of Anti-Obesity Laws

As the federal and state governments are faced with ever-increasing health-care costs, lawmakers welcome proposals toward encouraging Americans to live healthier lives—particularly, as the New York Times notes, when the proposals involve no costs for government. Requiring restaurants to post calorie counts or to stop serving trans fats adds nothing to the government’s budget. And, of course, applying a special tax to sodas would actually generate tax revenue; Governor Paterson estimated that New York would reap $400 million annually as a result of the proposed 18 percent tax.5 Granted, say advocates of the tax, it would be an expense for soda drinkers, but New Yorkers could avoid the tax by doing just what the government wants them to do: abstain from calorie-laden drinks.

The stakes here are high for federal and state governments: A 2002 economic analysis showed that conditions related to weight gain and obesity accounted for 9.1 percent of total medical spending. The total obesity- and overweight-related expenditure was estimated at up to $78.5 billion in 1998 dollars. Half of these costs were paid by Medicare and Medicaid.6 Thus governments have a tremendous incentive to “do something” about the problem. As politicians see it, if they can get more citizens to a healthy weight, they can trim government health-care costs in the process—and if this goal can be accomplished without government expenditures, so much the better. . . .

Are Anti-Obesity Reforms Really Free?

Laws such as those proposed by Governor Paterson are attractive to politicians because these mandates impose no costs on government. But the notion that anti-obesity reforms are “free” ignores both their financial and political costs to American citizens. Consider first the financial costs.

Laws requiring restaurants to post calorie counts or other nutrition information impose substantial costs on restaurant owners, who are forced first to determine exact calorie counts of their offerings and then to reprint signs and menus. Calorie-count laws can be especially onerous for a national chain because different state and local governments require different information to be posted. The city of Seattle, for example, requires restaurants to post not only calorie counts, but also grams of saturated fat, milligrams of sodium, and other nutrition information.7 New York City, on the other hand, mandates only the posting of calorie counts, but it also dictates the font sizes that must be used for various kinds of printed information, such that a menu or sign acceptable in Seattle might not be allowed in New York City and vice versa.8 Other states and localities have still other requirements. Thus a restaurant chain that operates nationwide must spend money to tailor its menus and signage to fit the laws of each individual jurisdiction in which it operates. And the chain must update or replace its menus and signs any time another state or local government decides to implement nutrition-posting laws, and any time a state with existing nutrition-posting laws decides to revise them.

In an effort to avoid having to work with such a mishmash of ever-changing laws, the National Restaurant Association has come out in favor of federal nutrition-posting regulation. The aforementioned LEAN Act would force restaurants nationwide to conform to a uniform set of posting specifications. Such standardization would preempt state and local laws and thus save chain restaurants the trouble of having to deal with multiple sets of regulations.9 Although the LEAN Act, if it passes, might remove the need to print multiple versions of menus and signage, it would still require restaurateurs to spend time and money determining nutritional specifications for every recipe, existing and new, and reprinting signs and menus accordingly. This would be especially problematic for a restaurant that offers daily specials, which are often determined by whatever is fresh that day or by the spontaneous creativity of the chef. Calibrating the nutritional content of such recipes and printing this data on a daily basis would be extremely time-consuming and expensive. And then there is the matter of patrons who request special preparations—“hold the tomatoes” or “extra dressing” or “rice rather than potatoes.” Even if the countless variables and circumstances were possible to account for under such government schemes (and they are not), accounting for them and complying with the corresponding laws would cost ridiculous amounts of time and money.

Whether on a national, state, or local level, calorie-count laws and labeling regulations impose major expenses on restaurant owners. Legislators at least implicitly acknowledge this fact, which is why such laws already in effect typically apply only to restaurants with more than a certain number of outlets (usually ten to twenty). A mom-and-pop restaurant with just one or two locations is not expected to have the outlay available, first to analyze its menu offerings to determine their calorie counts, and then to redo its printed materials to reflect those numbers.

In addition to the costs borne by restaurants, anti-obesity laws impose costs on consumers. These costs may be direct, via paying more sales tax when buying soda at the grocery store; or indirect, via paying higher prices at restaurants that are forced to retool recipes, reprint menus, and remake signs.

Hardest hit by these kinds of laws and regulations are the manufacturers of products that people want to buy but that are deemed unhealthy by the government. If sodas or snack foods entail a special tax over and above the regular sales tax, or if they are prohibited here or there, the makers of these products will suffer a decline in revenue as consumers opt to purchase less of a given product or are barred from purchasing a given product where they would if they could. So, too, would makers of vegetable oils be hurt as their trans fat–containing products—desired by chefs and food manufacturers for their ability to extend shelf life and decrease refrigeration requirements—are banned by government after government.

The foregoing indicates some of the financial costs such laws impose (or would impose) on citizens. Let us turn now to the related yet more fundamental cost of anti-obesity legislation: the loss of freedom.

The Fundamental Cost of Anti-Obesity Laws

Everyone knows that if a person consumes more calories than he burns, he will gain weight, and that if he gains weight beyond a certain point, he will become obese. Everyone also knows that consuming sugary sodas, trans fat–laden snack foods, and calorie-rich restaurant meals with their typically large portions can contribute to weight gain. But such truths do not justify any laws or regulations.

By virtue of the fact that a person’s life is his to live as he sees fit, and the fact that his judgment is his basic means of living, a person has a moral right to sell or consume whatever foods he chooses, as long as he does not violate anyone else’s rights (e.g., by committing fraud or theft) in the process. A restaurateur does not violate a customer’s rights by selling him a high-calorie hamburger—unless the seller fraudulently claims that the calorie count is other than it actually is. And if a potential customer wants to know what is in the hamburger, he is free to ask someone at the restaurant or to establish a personal policy of patronizing only those restaurants that choose to post such information on their menus (as some restaurants do). Nor does an obese person violate anyone’s rights merely by being obese. No matter how many sodas he drinks, how many French fries he eats, or how big he gets, he does not thereby force others to act against their judgment; he does not violate anyone’s rights.

The proper role of government is not to count our calories or to watch our weight but to protect our rights. The government has no moral right to interfere with a food producer’s offerings, a restaurant’s menu, or an individual’s diet. And where the government has created for itself a legal right to do so, such laws should be repealed.

“But the government must interfere in this area,” say the advocates of such laws, “because, like it or not, the government is in the business of paying for citizens’ health care, and because obesity often leads to costly complications, which cost the government billions of dollars a year.”

Government spending on health care is a legitimate concern, but violating the rights of food producers, restaurateurs, and consumers is not a solution to this (or any other) problem. Government spending on health care itself violates individual rights—namely, the rights of health-care providers, insurers, customers, and patients to produce, contract, and consume according to their own judgment. When the government euphemistically “pays” for someone’s health care—whether for blood pressure medication or for open-heart surgery—it violates the rights of the individuals who actually pay for these goods via taxation. The solution to the government’s health care costs is to recognize that the government has no legitimate business “paying” for anyone’s health care and to begin removing the government’s coercive hands from the industry. (For elaboration, see Lin Zinser and Paul Hsieh, “Moral Health Care vs. ‘Universal Health Care,’” TOS vol. 2, no. 4.)

Measures such as those proposed by Governor Paterson should be defeated because they violate the rights of individuals—food producers, restaurateurs, and consumers—to act on their own judgment and thus to live their lives as they see fit. Americans have a moral right to make their own decisions about their own diets and health. Whether we retain the legal right to do so depends on our rejection of anti-obesity laws and all such rights-violating measures.

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1 David Paterson, State of the State Address, January 7, 2009. Available at http://www.ny.gov/governor/keydocs/pdf/speech_0107091.pdf. Accessed January 16, 2009.

2 Jerry Hirsch, “More Food Regulation on the Way?” Fort Wayne Journal-Gazette, December 28, 2008. Available at http://www.journalgazette.net/apps/pbcs.dll/article?AID=/20081228/BIZ/812280343. Accessed January 16, 2009.

3 Stephen Smith, “State Campaign vs. Obesity Gets Personal,” The Boston Globe, January 15, 2009.Available at http://www.boston.com/news/local/massachusetts/articles/2009/01/15/state_campaign_vs_obesity_gets_personal/. Accessed January 16, 2009.

4 National Restaurant Association Statement About Introduction of LEAN Act In Congress. Available at http://www.restaurant.org/pressroom/print/index.cfm?ID=1691. Accessed January 16, 2009.

5 Anemona Hortocollis, “A Governor With No Money Seeks to Improve the People’s Health,” New York Times, January 10, 2009. Available at http://www.nytimes.com/2009/01/11/nyregion/11health.html?_r=1&scp=1&sq=calorie%20counts&st=cse. Accessed January 23, 2009.

6 Eric A. Finkelstein, Ian C. Fiebelkorn, and Guijing Wang, “National Medical Spending Attributable to Overweight and Obesity: How Much, and Who’s Paying?” Health Affairs. Available at http://content.healthaffairs.org/cgi/reprint/hlthaff.w3.219v1?maxtoshow=&HITS=10&hits=10&RESULT FORMAT=&author1=Finkelstein&fulltext=national+medical+spending+obesity&andorexactfulltext=and&searchid=1&FIRSTINDEX=0&resourcetype=HWCIT. Accessed January 23, 2009.

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