Nanny-State Regulations: Limits on Personal Choice Debated by Experts at Midyear Meeting

Vol. 37 No. 3

By

John Glynn is a web editor with ABA Communications and Media. Reprinted courtesy of ABA Communications and Media Relations Division.

In New York, former Mayor Michael Bloomberg spearheaded an administrative “soda ban” that prohibited restaurants, movie theaters, and other food establishments in the Big Apple from serving sugary drinks in sizes larger than 16 ounces.

In Chicago, the City Council has moved to limit distribution or sale of alternative nicotine products to minors as well as indoor public use of e-cigarettes, part of a growing anti-tobacco movement in cities and states.

Some of the legal issues arising from such actions are still to be decided. But as a panel at the opening of the American Bar Association Midyear Meeting on Thursday, February 6, showed, the spirited debate about the extent of the government power over personal choices might only be beginning.

“We are bad at making [personal] decisions,” said Sarah Conly, a Bowdoin College assistant professor and author of the book, Against Autonomy: Justifying Coercive Paternalism.

The panel, “They’ll Take my Big Gulp from my Cold, Dead Hands: Public Health, the Police Power and the Nanny State,” explored the political debate over government intervention, more than legal arguments, through the lens of smoking, food- and drink-portion sizes, and fees and bans on plastic bags. The title played off the National Rifle Association’s one-time slogan: “ . . . from my cold dead hands.”

Thursday’s discussion ran along some of the lines used in gun control arguments. Conly, who has a legal and philosophy background, suggested “reasonable criteria for intervention” that included putting another’s goals ahead of your own, benefits that outweigh costs, and efficiency in the regulatory environment.

Education, often cited as a remedy, is falling short of its intended result, she maintained. “We have more and more education and we are getting fatter and fatter,” she said, in pointing to the country’s growing obesity problem.

George Cardenas, a Chicago alderman who chairs the City Council’s Committee on Health and Environmental Protection, said he approached these issues in a pragmatic way although “there are some arguments to make for the nanny state.” For sugary products, for instance, he advocates raising costs through taxes rather than outright bans.

“At the end of the day there has to be balance,” said Cardenas, adding, “When folks get sick they stop working. They stop buying products. And who is going to get the bill: the taxpayers.”

The New York City ban, limiting sizes of sugary drinks, has generated widespread national interest. Bloomberg, who recently left his position of mayor after 12 years, steered the city’s Board of Health to enact the 16-ounce cap on soft drinks. In July, a New York State appellate court ruled the board “overstepped the boundaries of its lawfully delegated authority when it promulgated the Portion Cap Rule to curtail the consumption of soda drinks.”

The third panelist, Walter Olson, a senior fellow at the Cato Institute’s Center for Constitutional Studies in Washington, D.C., noted all judges who have reviewed the cap struck it down on unconstitutional grounds. He chided the former New York mayor, a billionaire who founded the Bloomberg financial information empire, as “too rich to care” what people thought of him.

He also challenged Conly’s suggestion that the government should step in to impose healthy choices when a large number of people choose not to. “The government is not our only alternative to serve as a guard on our own impulses,” Olson said.

The chief sponsor of the session was the ABA Section of State and Local Government Law.

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