uMaking
the Case for Health-Enhancing Laws after Bloomberg Professor Gostin describes how Bloomberg’s initiatives ushered in a new era in thinking about how the law can be used to promote health. In an era of frustration with congressional gridlock, they also remind us how innovative, nimble, and swift local governments can be in taking action on social problems. The Bloomberg administration’s willingness to proceed in the face of inevitable legal challenge from industry groups is a courageous model of how we hope officials who believe in their policies will respond to threats from industry. Notwithstanding his many victories, the mayor leaves office on a low note following a battle over his unpopular initiative to limit the size of sugar-sweetened sodas. To public health advocates, the backlash against this and other interventions they would regard as mild “nudges” is surprising. An important lesson of Bloomberg’s tenure is the need to control the frame for public debate about public health law interventions. Industry groups have so effectively set this frame that it has been difficult to engage the public on the most relevant question for a public health law: do the likely health benefits justify the infringement on individual interests? Discourse has instead focused on the absolutist notion of defense against the “nanny state.” In this trope, the personal decisions that increase a person’s risk of obesity and noncommunicable disease are purely self-regarding, and state interference can never be justified. The dominance of this frame does not spring naturally from traditions of American individualism. It has been expertly stage-managed by industry groups representing restaurants, food manufacturers, and beverage companies. These groups have spent millions bankrolling “consumer rights” organizations to promulgate the nanny-state message with advertising campaigns that are creative, humorous, and ubiquitous. 8 HASTIN G S C E N T E R R E P ORT
A well-known is example is the Center for Consumer Freedom. Seeded with funding from Philip Morris to fight restaurant smoking bans, today the CCF receives support from Coca-Cola, fast food companies, Cargill (a producer of sugar and high-fructose corn syrup), and a host of other food manufacturers and purveyors and has fought hard against Bloomberg’s food initiatives. Soda companies also spent more than one million dollars to fight Bloomberg’s soda portion cap through the organization New Yorkers for Beverage Choices. These industry-funded groups purport to speak for consumers, but shaping consumer views is central to their mission. Despite their success in fomenting backlash, survey research reported in Health Affairs in March 2013 suggests that a quiet majority of New Yorkers—and the American public— support public health laws like Bloomberg’s. To ensure the political viability of such initiatives, officials must connect with this majority’s predilections. One way to do this is by promoting the idea of benevolent or corrective paternalism. Executing healthful choices is hard. We must work to overcome an obesogenic food environment and well-known distortions in how humans evaluate risks and benefits. Thus, the argument runs, most Bloombergian interventions help correct gaps between how we tend to behave and what we know is best for us. However worthy the benevolent paternalism argument may be, it has not played well in New York. Benevolent paternalism is still paternalism, and not the strongest case for Bloombergian laws. A second approach, curiously underplayed by New York officials, is to focus on the negative externalities of unhealthful choices. The staggering costs of obesity, tobacco use, and other risk factors have always been part of the public justification for these interventions but have been overshadowed by arguments in favor of helping New Yorkers make better decisions. For example, in launching a 2013 initiative to use architectural design to encourage people to take the stairs, Bloomberg explained, “The economic benefit is you
will live longer. . . . The whole idea here is . . . to give you the idea or the impetus to do something that is in your own interest.” This response soft-pedals the externalities argument and lurches too quickly toward benevolent paternalism. The economic benefit of increasing physical activity goes far beyond longevity (which, indeed, may not be an economic benefit at all). Taxpayers will spend billions more on health care costs if rates of obesity and cardiovascular disease are not improved. Focusing on externalities can turn the chorus of personal-responsibilityfor-health objections on its head. Advocates of personal responsibility should be angered by the prospect that people’s poor choices about nutrition, physical activity, and tobacco and alcohol use are pushing up insurance premiums for everyone. The insurance reforms of the Affordable Care Act, which expanded risk pooling by reducing insurers’ ability to exclude persons with costly health conditions, increase everyone’s skin in the game. The same arguments that carried the day in federal health reform can be made about Bloomberg’s initiatives: those who fall ill can access costly health care in our system regardless of whether they made wise choices beforehand, we all bear the cost, and “shared responsibility” for these costs is a moral and economic imperative. Recently, the national media is reporting on Bloomberg’s latest initiative—a law raising the minimum age for purchasing tobacco in New York City to twenty-one. The backlash has already begun. Perhaps, as the mayor leaves office, he is demonstrating the old adage that the last check you write should be to the undertaker—and it should bounce. But public officials who seek to follow in his steps must find sustainable wells of political capital. Shifting the frame of the debate may hold the key. • Michelle M. Mello Harvard School of Public Health • David M. Studdert Stanford University Schools of Medicine and Law DOI: 10.1002/hast.246
January-February 2014
the Case for Health-Enhancing Laws after Bloomberg Professor Gostin describes how Bloomberg’s initiatives ushered in a new era in thinking about how the law can be used to promote health. In an era of frustration with congressional gridlock, they also remind us how innovative, nimble, and swift local governments can be in taking action on social problems. The Bloomberg administration’s willingness to proceed in the face of inevitable legal challenge from industry groups is a courageous model of how we hope officials who believe in their policies will respond to threats from industry. Notwithstanding his many victories, the mayor leaves office on a low note following a battle over his unpopular initiative to limit the size of sugar-sweetened sodas. To public health advocates, the backlash against this and other interventions they would regard as mild “nudges” is surprising. An important lesson of Bloomberg’s tenure is the need to control the frame for public debate about public health law interventions. Industry groups have so effectively set this frame that it has been difficult to engage the public on the most relevant question for a public health law: do the likely health benefits justify the infringement on individual interests? Discourse has instead focused on the absolutist notion of defense against the “nanny state.” In this trope, the personal decisions that increase a person’s risk of obesity and noncommunicable disease are purely self-regarding, and state interference can never be justified. The dominance of this frame does not spring naturally from traditions of American individualism. It has been expertly stage-managed by industry groups representing restaurants, food manufacturers, and beverage companies. These groups have spent millions bankrolling “consumer rights” organizations to promulgate the nanny-state message with advertising campaigns that are creative, humorous, and ubiquitous. 8 HASTIN G S C E N T E R R E P ORT
A well-known is example is the Center for Consumer Freedom. Seeded with funding from Philip Morris to fight restaurant smoking bans, today the CCF receives support from Coca-Cola, fast food companies, Cargill (a producer of sugar and high-fructose corn syrup), and a host of other food manufacturers and purveyors and has fought hard against Bloomberg’s food initiatives. Soda companies also spent more than one million dollars to fight Bloomberg’s soda portion cap through the organization New Yorkers for Beverage Choices. These industry-funded groups purport to speak for consumers, but shaping consumer views is central to their mission. Despite their success in fomenting backlash, survey research reported in Health Affairs in March 2013 suggests that a quiet majority of New Yorkers—and the American public— support public health laws like Bloomberg’s. To ensure the political viability of such initiatives, officials must connect with this majority’s predilections. One way to do this is by promoting the idea of benevolent or corrective paternalism. Executing healthful choices is hard. We must work to overcome an obesogenic food environment and well-known distortions in how humans evaluate risks and benefits. Thus, the argument runs, most Bloombergian interventions help correct gaps between how we tend to behave and what we know is best for us. However worthy the benevolent paternalism argument may be, it has not played well in New York. Benevolent paternalism is still paternalism, and not the strongest case for Bloombergian laws. A second approach, curiously underplayed by New York officials, is to focus on the negative externalities of unhealthful choices. The staggering costs of obesity, tobacco use, and other risk factors have always been part of the public justification for these interventions but have been overshadowed by arguments in favor of helping New Yorkers make better decisions. For example, in launching a 2013 initiative to use architectural design to encourage people to take the stairs, Bloomberg explained, “The economic benefit is you
will live longer. . . . The whole idea here is . . . to give you the idea or the impetus to do something that is in your own interest.” This response soft-pedals the externalities argument and lurches too quickly toward benevolent paternalism. The economic benefit of increasing physical activity goes far beyond longevity (which, indeed, may not be an economic benefit at all). Taxpayers will spend billions more on health care costs if rates of obesity and cardiovascular disease are not improved. Focusing on externalities can turn the chorus of personal-responsibilityfor-health objections on its head. Advocates of personal responsibility should be angered by the prospect that people’s poor choices about nutrition, physical activity, and tobacco and alcohol use are pushing up insurance premiums for everyone. The insurance reforms of the Affordable Care Act, which expanded risk pooling by reducing insurers’ ability to exclude persons with costly health conditions, increase everyone’s skin in the game. The same arguments that carried the day in federal health reform can be made about Bloomberg’s initiatives: those who fall ill can access costly health care in our system regardless of whether they made wise choices beforehand, we all bear the cost, and “shared responsibility” for these costs is a moral and economic imperative. Recently, the national media is reporting on Bloomberg’s latest initiative—a law raising the minimum age for purchasing tobacco in New York City to twenty-one. The backlash has already begun. Perhaps, as the mayor leaves office, he is demonstrating the old adage that the last check you write should be to the undertaker—and it should bounce. But public officials who seek to follow in his steps must find sustainable wells of political capital. Shifting the frame of the debate may hold the key. • Michelle M. Mello Harvard School of Public Health • David M. Studdert Stanford University Schools of Medicine and Law DOI: 10.1002/hast.246
January-February 2014
