Matteo Bonotti Queen s University Belfast, Northern Ireland

Transcription

1 Legislating about Unhealthy Food: A Millian Approach Matteo Bonotti Queen s University Belfast, Northern Ireland ABSTRACT. Tackling food-related health conditions is becoming one of the most pressing issues in the policy agendas of western liberal democratic governments. In this article, I intend to illustrate what the liberal philosopher John Stuart Mill would have said about legislation on unhealthy food and I focus especially on the arguments advanced by Mill in his classic essay On Liberty ([1859] 2006). Mill is normally considered as the archetype of liberal anti-paternalism and his ideas are often invoked by those who oppose state paternalism, including those who reject legislation that restricts the consumption of unhealthy food. Furthermore, his views have been applied to related policy areas such as alcohol minimum pricing (Saunders 2013) and genetically modified food (Holtug 2001). My analysis proceeds as follows. First, I show that Mill s account warrants some restrictions on food advertising and justifies various forms of food labelling. Second, I assess whether and to what extent Mill s harm principle justifies social and legal non-paternalistic penalties against unhealthy eaters who are guilty of otherregarding harm. Finally, I show that Mill s account warrants taxing unhealthy foods, thus restricting the freedom of both responsible and irresponsible eaters and de facto justifying what I call secondary paternalism. KEYWORDS. John Stuart Mill, unhealthy food, paternalism, harm, food labelling, food advertising I. INTRODUCTION Tackling obesity and other food-related health conditions is gradually becoming one of the most pressing issues in the policy agendas of western liberal democratic governments. At the 2011 Conservative Party Conference, for example, the British Prime Minister David Cameron publicly endorsed the idea of introducing a fat tax in the UK, to be applied to unhealthy foods. Among the reasons in support of this measure, Cameron ETHICAL PERSPECTIVES 20, no. 4(2013): by Centre for Ethics, KU Leuven. All rights reserved. doi: /EP

2 ETHICAL PERSPECTIVES DECEMBER 2013 mentioned [ ] a problem with the growing level of obesity [ ], the costs to the health service, [and] the fact that some people are going to have shorter lives than their parents (Anon. 2011). Some countries have recently implemented measures in line with these proposals. In 2011, for example, Hungary introduced a junk food tax and France a tax on sugary drinks (Mytton, Clarke and Rayner 2012, 1). It is surprising that political theorists have not devoted much time to examining the moral and political implications of these and similar measures and, more generally, to critically discussing the normative principles that ought to guide legislation about unhealthy food. Should such food be taxed? Should those who consume it in excess, and therefore incur certain health problems, be morally and legally penalized? More generally, should the state interfere with people s eating choices or would that be an instance of unwarranted paternalism? As these few questions suggest, this is a potentially very broad area of research and I do not aim to provide, within the limits of the present contribution, an exhaustive answer to them. What I intend to do, instead, is to illustrate what the liberal philosopher John Stuart Mill would have said about legislation on unhealthy food. I will especially focus on the arguments advanced by Mill in his classic essay On Liberty ([1859] 2006). There are a number of reasons why it is worth focusing on Mill s liberal philosophy to address the normative questions concerning unhealthy food legislation. First, policies targeting unhealthy food and unhealthy eaters are often accused of being strongly paternalistic and Mill is normally considered as the archetype of liberal anti-paternalism (see Saunders 2013). Mill s ideas are often invoked by those who oppose state paternalism, both within and outside academia, including those who reject legislation that restricts the consumption of unhealthy food. To cite just one recent example; when New York s Mayor Michael Bloomberg proposed a ban on large-size sugary drinks in 2012, Marty Markowitz, the Borough President of Brooklyn, appealed to Mill s alleged anti-paternalism when making his case against the measure (which was 556

3 MATTEO BONOTTI LEGISLATING ABOUT UNHEALTHY FOOD eventually approved by New York City s Board of Health nonetheless; Anon. 2012b). Given Mill s prominent place within the liberal tradition, it is therefore worthwhile examining what kinds of arguments a Millian anti-paternalist liberal approach can provide against allegedly paternalistic measures such as those targeting unhealthy food. Due to my focus on Mill s views, I set aside for the scope of this contribution any comprehensive assessment of the contemporary scholarly debates on (and disagreement regarding the definition of) paternalism (see, for example, Arneson 1980 and 2005; De Marneffe 2006; Dworkin 1997; Feinberg 1971; Shiffrin 2000; Sunstein and Thaler 2003; Coons and Weber 2013). While these are important and engaging accounts, they cannot be assessed within the limits of the present article. Second (and relatedly), due to their central place in the history of liberalism, Mill s views have already been invoked by various authors in relation to diverse policy areas such as alcohol minimum pricing (Saunders 2013), genetically modified food (Holtug 2001), pornography (Dyzenhaus 1992) and multiculturalism (Waldron 2009). Discussing the implications of Mill s theory for unhealthy food legislation can therefore provide a significant addition to this body of literature. Moreover, this analysis can contribute in setting the agenda for further normative debates on unhealthy food legislation as the latter, we have seen, is still a rather unexplored topic in political theory. Third, Mill s account, especially in the essay On Liberty, offers a systematic normative framework for discussing several aspects of food legislation, ranging from nutrition fact labels to food advertising and fat taxes. This, together with Mill s use of several real-world examples throughout the essay, renders his account especially suitable for providing the moral justification of a comprehensive body of legislation on unhealthy food. My analysis proceeds as follows. First, I show that Mill s account warrants some restrictions on food advertising and justifies various forms of food labelling. Second, I assess whether and to what extent Mill s 557

4 ETHICAL PERSPECTIVES DECEMBER 2013 harm principle justifies social and legal non-paternalistic penalties against unhealthy eaters who are guilty of other-regarding harm. Finally, I show that Mill s account also warrants taxing unhealthy foods, thus restricting the freedom of both responsible and irresponsible eaters and de facto justifying what I call secondary paternalism. II. MILL S HARM PRINCIPLE The central thread of Mill s essay On Liberty is the so-called harm principle, i.e. the idea [ ] that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number [ ] against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant (2006, 16). Mill s harm principle relies on a distinction between self-regarding and other-regarding actions and is aimed at protecting [ ] the appropriate region of human liberty (2006, 18) from the unwarranted interference of state and/or society. That region, Mill argues, comprises [ ] the inward domain of consciousness; [ ] liberty of tastes and pursuits [ and ] the liberty [ ] of combination between individuals (2006, 18-19). I do not intend to analyse in much depth the problems raised by Mill s slightly ambiguous conception of harm. 1 Yet a few points need to be clarified. First, for Mill mere offense is not harm (2006, 61-63). Second, interference with an individual s liberty is warranted not only when there is actual harm but also [w]henever [ ] there is [ ] a definite risk of damage, either to an individual or to the public (2006, 93). This is important when considering the potential harmful consequences (to others) of unhealthy eating, as I will demonstrate below. Third, Mill s harm principle is a necessary but not sufficient condition for interfering with an individual s freedom. Indeed, even in the case of some other-regarding actions, Mill argues, interference is not warranted [ ] either because it is a kind of case in which he is on the whole likely to act better, when left to his own discretion [ ] or because the attempt to exercise control 558

5 MATTEO BONOTTI LEGISLATING ABOUT UNHEALTHY FOOD would produce other evils, greater than those which it would prevent (2006, 18). Mill provides the example of the harm and suffering that someone who [ ] succeeds in an overcrowded profession, or in a competitive examination (2006, 107) may cause upon losing competitors. According to Mill, this kind of harm does not warrant interference with individual liberty unless [ ] means of success have been employed which it is contrary to the general interest to permit namely, fraud or treachery, and force (2006, 107). Fourth, the distinction between self-regarding and other-regarding conduct, which is central to Mill s essay, is especially problematic, and indeed has been object of intense debate among Mill s critics (see, for example, Riley 1998, 99ff.). The main problem, according to many, is that any self-regarding act and, most importantly, any self-regarding harm is likely to have consequences upon other individuals. Mill, however, is not unaware of this issue and argues that only when, due to self-harming conduct, [ ] a person is led to violate a distinct and assignable obligation to any other person or persons, the case is taken out of the self-regarding class, and becomes amenable to moral disapprobation in the proper sense of the term (2006, 92; italics mine). Shortly thereafter, he highlights that [ ] when a person disables himself, by conduct purely self-regarding, from the performance of some definite duty incumbent on him to the public, he is guilty of a social offence. No person ought to be punished simply for being drunk; but a soldier or a policeman should be punished for being drunk on duty (2006, 92-93; italics mine). What renders self-harm otherregarding, therefore, is for Mill the breach of specific obligations and duties we have towards other people. Finally, Mill s harm principle articulates his rejection of state paternalism. Paternalistic measures violate the harm principle by interfering with individuals self-regarding actions. Yet it may be more accurate to argue, in line with Gerald Dworkin, that paternalism can be better defined as [ ] the interference with a person s liberty of action justified by reasons referring exclusively to the welfare, good, happiness, needs, interests or 559

6 ETHICAL PERSPECTIVES DECEMBER 2013 values of the person being coerced (Dworkin 1997, 62). The emphasis, therefore, should be on the reasons presented by legislators to justify laws and policies. Dworkin rightly points out that while any law or policy can in principle be justified on different grounds, paternalistic measures are only those that, even when non-paternalistic arguments are also available, are justified by appealing to an agent s own good, i.e. in order to protect him or her from purely self-regarding harm. While considering Dworkin s definition of paternalism especially useful for the scope of my present discussion, I am aware that due to the abovementioned disagreement about the nature of paternalism it is not the only (or, for some, the best) definition. Indeed, in my analysis of food nutrition labels I will show how Dworkin s classic account of paternalism has been the object of criticisms that help to highlight some of its flaws. In the remaining part of the present contribution, I plan to assess whether and to what extent Mill s harm principle justifies social and legal non-paternalistic penalties against unhealthy eaters who are guilty of other-regarding harm, and whether Mill s account also justifies paternalistic measures. Before doing so, however, I intend to briefly discuss two policy areas that have crucial implications for the issue of unhealthy food consumption, but fall outside the scope of my subsequent analysis, i.e. food advertising and food labelling. III. FOOD ADVERTISING AND FOOD LABELLING Mill s position regarding advertising is slightly ambiguous. On the one hand, he argues that individuals should be allowed to advise each other to do the things they are allowed to do (i.e. within the limits imposed by the harm principle; 2006, 111). On the other hand, however, he argues that [t]he question is doubtful, only when the instigator derives a personal benefit from his advice; when he makes it his occupation, for subsistence or pecuniary gain, to promote what society and the State consider to be an evil (2006, 111). Buyers, that is, should be able to make their 560

7 MATTEO BONOTTI LEGISLATING ABOUT UNHEALTHY FOOD purchases [ ] as free as possible from the arts of persons who stimulate their inclinations for interested purposes of their own (2006, 112). In the case of alcohol, for example, even though sale restrictions should not be implemented, as that would also unduly restrict the freedom of buyers, Mill argues that [t]he interests [ of strong drink] dealers in promoting intemperance is a real evil, and justifies the State in imposing restrictions and requiring guarantees which, but for that justification, would be infringements of legitimate liberty (2006, 113). This suggests that Mill s arguments do justify imposing restrictions upon the advertising of unhealthy foods, when such restrictions aim to constrain the producers goal to promote the excessive consumption of those foods. This is especially relevant to the issue of food adverts directed at children, for two main reasons. First, it should be noted that the harm principle, for Mill, does not apply to [ ] children, or [ ] young persons below the age which the law may fix as that of manhood or womanhood (2006, 16). As children (unlike adults) should not be free, for Mill, to engage in self-regarding behaviour, similarly they should not be free [ ] to exchange opinions, and give and receive suggestions (2006, 111). Second, it is well known that [c]orporations [ ] have a vested interest in targeting younger and younger consumers and invest billions both in advertising and product placement (Merry 2012, 2). The state may therefore legitimately impose restrictions upon adverts for sugary cereals, fizzy drinks and other unhealthy foods that target children and young people. This is the case, for example, in the UK where [ ] a ban on advertising junk foods before, during and after educational TV programs aimed at children (Wickins-Drazilova and Williams 2011, 15) has already been implemented. Such measures may contribute in changing the obesogenic environment (Voigt 2012, 2) that strongly conditions parents ability to make dietary choices on behalf of their children (Merry 2012, 5). However, they also have limits. As Wickins-Drazilova and Williams highlight, the omnipresent character of marketing strategies and advertising implies that in 561

8 ETHICAL PERSPECTIVES DECEMBER 2013 spite of any restrictions children are still likely to be exposed to some form of advertising, [ ] from supermarkets through bill-boards to the internet and disguised advertising in the form of product placement in many film and television shows (2011, 16). One might suggest, of course, that these marketing tools should also be restricted. However, we should remember that the harm principle is, for Mill, a necessary but not sufficient condition for interfering with the liberty of others, and that [ ] the attempt to exercise control [i.e. in this case, to regulate extensively corporations marketing strategies] would produce other evils, greater than those which it would prevent (2006, 18). It might significantly reduce, for example, the freedom of adult consumers to be informed about different products they may wish to purchase. 2 In summary, while Mill would certainly endorse some restrictions, he would not justify a systematic state control over food advertising. More complex, however, are the implications of Mill s account for legislation concerning nutrition facts labels. Such labels are now compulsory for all packaged food products in several countries and their purpose is to ensure that consumers are fully informed about the nutritional values of the foods they eat. This is apparently in line with Mill s account. The passage in On Liberty that is most closely related to nutrition facts labels is Mill s view that, when dealing with the sale of poisons, [s]uch a precaution [ ] as that of labelling the drug with some word expressive of its dangerous character, may be enforced without violation of liberty; the buyer cannot wish not to know that the thing he possesses has poisonous qualities (2006, 109). Similarly, nutrition facts labels are necessary to ensure that consumers are fully aware of the implications of their actions and voluntarily choose to perform them (even if they are bad or dangerous for them). From a Millian perspective, therefore, consumers can legitimately be warned about the nutrient values of the foods they choose to eat. One might suggest, nonetheless, that the analogy between unhealthy food and poison is imperfect because many people in fact do wish to 562

9 MATTEO BONOTTI LEGISLATING ABOUT UNHEALTHY FOOD ignore the long-term effects of the food they eat. More precisely, we could argue that many people do not wish to be reminded of such effects. In other words, being constantly warned about the high saturated fat or high sugar contents of one s favourite meals may seriously undermine one s enjoyment of the said foods. If that is the case, one might argue, food labelling is paternalistic, at least towards those people who wish to remain ignorant or not to be reminded about the long-term effects of their food. This remark clearly relies on an empirical assumption that may be difficult to prove or disprove. One would need to carry out surveys, collect data, etc. in order to establish what people s attitude to their food consumption actually is and what they wish or do not wish to know about the effects of their food. On these grounds, however, one might also contest Mill s own assumption that the purchaser [ ] cannot wish not to know (2006, 109) the poisonous nature of the substance they buy. Similarly, Mill also argues that [i]f either a public officer or any one else saw a person attempting to cross a bridge which had been ascertained to be unsafe, and there were no time to warn him of his danger, they might size him and turn him back, without any real infringement of his liberty; for liberty consists in doing what one desires, and he does not desire to fall into the river (2006, 109). Mill s examples are different from that of nutrition facts labels only in degree. The empirical assumption behind them, one might argue, is partly flawed because Mill does not take into account those cases in which a person may willingly choose to adopt a risky conduct, such as walking across an unsafe bridge or using poisonous substances, without being aware of their dangerous effects. As Jonathan Riley (1998, 121) points out, Mill possibly believes that an attempt to commit suicide (e.g. by crossing an unsafe bridge) should be disregarded as irrational and inconsistent with the development of individual autonomy and of an independent character that the protection of individual liberty aims to promote. This, however, is no longer an empirical assumption, but a normative argument. Consequently, interference with irrational willing suicides and 563

10 ETHICAL PERSPECTIVES DECEMBER 2013 risk-taking individuals may be considered paternalistic. The only difference, in the case of food labelling that I am discussing, is that the number of irrational people who wish to remain ignorant about the consequences of their actions (or still eat unhealthy food despite food label warnings) is likely to be much higher than in the bridge and poison examples. That number, however, is a function of the certainty or uncertainty of the danger they may incur through their actions, as I explain in the following paragraphs. Rather than guessing or trying to find out how many people wish to remain ignorant about the dangers they face, one should look at the variables at stake in the three examples. In the bridge example, the danger faced by the agent is both certain (the bridge [ ] had been ascertained to be unsafe [Mill 2006, 109]) and imminent (there is [ ] no time to warn him of his danger [Mill 2006, 109]). For Mill this justifies soft paternalism (Feinberg 1989), i.e. stopping that person in order to warn them and ensure that their action is voluntary and well-informed. Once we have ensured that the person is fully aware of the situation, then we should leave them free, from Mill s point of view, to cross the bridge and fall into the river if they so wish. Mill s statement that the person [ ] does not desire to fall into the river (2006, 109) is perhaps unfortunate in its absolute tone, but I believe it should be interpreted in the following way: most people most of the time do not wish to fall into rivers and, even if an irrational minority of them does, we have a right to interfere in order to ascertain whether a person belongs to that minority and is aware of the consequences of their action. Irrational individuals may then decide to cross the bridge and we should leave them free to do so. The poisons example presents a different scenario. Here the danger is not imminent (i.e. the person is not about to drink the poison, only to purchase it) and it is not certain (i.e. the person may use the poison for non-dangerous goals, e.g. [ ] to help protect the plants in his garden from insects (Riley 1998, 121)). In such cases, Mill argues, [ ] no one but the person himself can judge of the sufficiency of the motive which 564

11 MATTEO BONOTTI LEGISLATING ABOUT UNHEALTHY FOOD may prompt him to incur the risk: in this case, therefore, (unless he is a child, or delirious, or in some state of excitement or absorption incompatible with the full use of the reflecting faculty) he ought [ ] to be only warned of the danger; not forcibly prevented from exposing himself to it (2006, 109). Therefore we cannot forbid the sale of the product or even [ ] require in all cases the certificate of a medical practitioner (Mill 2006, 109), but only warn them about the product s dangerous nature through labelling. Once again, Mill s strong statement that [ ] the buyer cannot wish not to know that the thing he possesses has poisonous qualities (2006, 109) should be interpreted in the following way: most people most of the time wish to be informed about the poisonous effects of the goods they purchase and even if an irrational minority of them does not, we have a right to interfere (through labelling) in order to ascertain whether a person belongs to that minority and is aware of the consequences of their action. Once we have applied the warning label on the poison package we should leave irrational buyers free to purchase the poison and use it for self-harming actions. Given the potential other-regarding harm that may derive from the use of the poison (e.g. the buyer may use it to kill someone else), Mill also recommends that [t]he seller [ ] might be required to enter in a register the exact time of the transaction, the name and address of the buyer, the precise quality and quantity sold; to ask the purpose for which it was wanted, and record the answer he received (2006, 110). The case of food labelling is different from the previous cases only in degree. The danger associated with eating unhealthy food is much less certain and imminent than that incurred by crossing an unsafe bridge or using a poisonous substance unaware of its effects (see, for example, Conly 2012, 154; 167). Accordingly, the interference upon the agent s action should be milder and this is what nutrition facts labels aim to ensure. This, however, requires a clarification. The labelling of poisons recommended by Mill, we have seen, should include [ ] some word 565

12 ETHICAL PERSPECTIVES DECEMBER 2013 expressive of its dangerous character (2006, 109). This is because the poison is certainly and immediately dangerous, if drunk or ingested. To be true, this is also the case of certain foods, not necessarily unhealthy ones. There seem to be good reasons, for example, for providing clear and explicit labels that state whether a food product contains nuts or other potentially allergenic ingredients. Apart from these cases, however, which closely resemble Mill s example of poisons and thus warrant visible and explicit food labels, most foods (including unhealthy ones) are generally unlikely to cause immediate and certain dangers to one s health in the short-term. Nutrition facts labels should therefore be milder than poisons labels. They should only provide information about the nutrients contained in the food one purchases rather than explicit warnings (analogous to the message smoking kills found on cigarette packets) such as this food will kill you in the long-term, if you eat too much of this food you are likely to die of a heart attack/of cancer etc., or even the kind of traffic light labelling used today on UK food packaging. Furthermore, in order to minimize interference with those who wish not to be reminded of the effects of their unhealthy foods, one might suggest the adoption of optional labels, e.g. peel-off labels or labels placed inside the food package rather than on the outside. 3 It would just have to be ensured that all consumers are aware of where to find the information, if they wish to. This would still allow those consumers who want to find out whether the nutritional contents of their foods are good or bad for their health to investigate what information the nutrition facts labels contain and what this entails. However, optional labels would avoid interfering with the freedom of those who want to remain ignorant or wish not to be reminded about the health effects of their foods, and who may consider unconcealed and explicit nutrition labels paternalistic. This conclusion, however, may be too rushed. Even though it may be true that many individuals would rather remain ignorant (or not be reminded) about the effects of the unhealthy foods they eat, it is not 566

13 MATTEO BONOTTI LEGISLATING ABOUT UNHEALTHY FOOD entirely clear whether the Millian state should accommodate their demands, i.e. by forbidding the provision of explicit warning labels on food. Indeed Mill argues that [h]uman beings owe to each other help to distinguish the better from the worse, and encouragement to choose the former and avoid the latter (2006, 86). According to John Skorupski, this implies that [ ] human beings [ ] have a moral obligation [e.g. a duty to educate each other]: something which [ ] society can enforce (1999, 222). Food labels, even of the more explicit and unconcealed kind, may therefore be seen as means of persuasion that society and the state can legitimately use in order to persuade people not to consume certain foods. In other words, while the Millian state ought to be permissively neutral (Skorupski 1999, 223), i.e. it should not prevent individuals from pursuing their preferred conceptions of the good, or impose upon them any such conception(s), it need not embrace persuasive neutrality (Skorupski 1999, 223). The latter consists of [ ] refrain[ing] from taking any part in the discussion or advancement of ethical ideals, whether as the proponent of some particular ideals or as the patron of some such proponents (Skorupski 1999, 223). If the Millian state believes, therefore, that it is better for individuals to lead a healthy lifestyle (e.g. because by being healthy and living longer they have a greater chance to develop their individual autonomy and cultivate an independent character), then it may legitimately persuade them to do so, even if some (or many) of them would rather not listen to its advice. It is true that such persuasive measures may reduce the enjoyment of those eaters who would rather remain ignorant of the unhealthiness of their foods. Yet it is also true that accommodating these eaters preferences may seriously undermine the effectiveness of food labels, as most consumers (who would rather know what is in their foods) may neglect the optional label. Furthermore, we should remember that [l]egislation is by its nature general: a given rule applies to many sorts of people in many sorts of circumstances. There are times [ ] that action in accordance with any 567

14 ETHICAL PERSPECTIVES DECEMBER 2013 given rule does harm rather than good (Conly 2012, 64). While Conly uses this claim in her defence of coercive paternalistic legislation, the same conclusion can also be applied to the case of food labels. Mill would endorse food nutrition labels and the fact that some consumers (most likely a minority) may be upset by being forced to access unsolicited information is not sufficient for considering such labels unjustified. The issue of food labels can also be addressed in a different way. I mentioned above that paternalism can be intended as [ ] the interference with a person s liberty of action justified by reasons referring exclusively to the welfare, good, happiness, needs, interests or values of the person being coerced (Dworkin 1997, 62). This is, at least, how Dworkin understands the implications of Mill s harm principle. However, if paternalism is taken to involve the restriction of liberty, it seems evident that no such restriction is involved in food labelling. Even in the case of eaters who are upset by unsolicited nutrition labels, it is not a loss of freedom that seems to be at stake. This problem can be understood more clearly by referring to Gert and Culver s (1979) account of paternalism and their critique (Gert, Culver and Clouser 2006) of Dworkin s account. According to Gert and Culver, [ ] paternalistic behavior needs justification because it involves doing that which requires one to violate a moral rule; indeed, in almost all cases it involves an actual violation of a rule (1979, 200). Gert and Culver, therefore, do not restrict the violation of moral rules to the infringement of individual liberty, as Dworkin does. Instead, they include among such violations a broader category of actions such as [ ] killing; causing pain (physical or mental); disabling; depriving of freedom, opportunity, or pleasure; deceiving; breaking a promise; or cheating (1979, 200 note 200; see also Gert, Culver and Clouser 2006, 242). For those who would rather not be informed about the nutrients of their foods, it seems that a loss of pleasure and perhaps some degree of psychological pain (rather than a loss of liberty) are the most likely consequences of being exposed to unsolicited food labels. Unlike Dworkin s account, therefore, 568

15 MATTEO BONOTTI LEGISLATING ABOUT UNHEALTHY FOOD Gert and Culver s seems to justify placing food labels under the category of paternalistic measures. Yet their analysis also aims to assess when such paternalistic interventions might be justified. Their argument is that we should compare [ ] the evil that would be caused against the evils that would be prevented in universally allowing [ a ] moral rule violation (1979, 205). In other words, we should not simply assess the consequences of a specific action but rather [ ] the hypothetical consequences [e.g. the evils] of universally allowing this kind of violation (1979, 205). The main difficulty in their account is that they distinguish between rational and irrational rankings of evils, a distinction that they themselves acknowledge as problematic (1979, 207 note 11). In the case of unsolicited food labels, for instance, one would have to assess whether choosing not to be informed about one s food nutrients (and therefore remaining ignorant about the long-term risks associated with eating unhealthy foods) because this reduces one s enjoyment of unhealthy foods constitutes a rational or irrational ranking of evils. It is not clear to me that the answer to this question is straightforward. The problem of rationality in food choices is addressed, for example, by Sarah Conly who points out that [ ] if we knew we were going to follow our burger and fries with an immediate heart attack [ ] none of us would eat it, no matter how strong our cravings, just as we won t drink antifreeze, no matter how thirsty. When this meal is only one out of a very long series, though, no one of which strikes the fatal blow, we find it easier to dismiss (2012, 167). The risk associated with eating unhealthy food is therefore more incremental than the risk associated, say, with crossing an unsafe bridge, as in Mill s example. Moreover, Conly s conclusion assumes, quite rightly, that virtually no unhealthy eater wishes to die of a heart attack or similar health condition. Is dismissing the long-term bad effects of unhealthy food consumption thus the result of poor reasoning as Conly suggests (2012, 167)? According to her, for example, Mill overestimates people s ability to think 569

16 ETHICAL PERSPECTIVES DECEMBER 2013 rationally (2012, 55). Due to people s poor reasoning, Conly argues, food labelling is often ineffective in persuading eaters to adopt healthier dietary habits and coercive paternalistic measures such as reducing food portions (e.g. in restaurants) would therefore be both justified and more effective in reducing obesity among the population (2012, ). Yet it might still be plausible to argue that it is not too irrational (and uncommon) to want to accept a shorter life in order to be able to enjoy the unhealthy (and tasty) food one likes. Conly herself, for example, highlights how soda consumption restrictions (such as the food stamp soda ban implemented by the City of New York in October 2010) can cause a real loss of enjoyment (2012, 157) among soda drinkers. In spite of her support for coercive paternalism, she argues that this kind of psychological cost should be taken into account when assessing the appropriateness of paternalistic policies. In conclusion, it seems to me that in these cases Mill would only justify warning and persuasive measures (e.g. food labels) rather than de facto coercive measures such as imposing restrictions upon food portions or banning certain unhealthy foods. If he argues that we should leave people free to commit suicide by crossing unsafe bridges once informed, however irrational that might be (e.g. see Riley 1998, 121), he would also leave people free to incur long-term diet-related health risks if they so wish. IV. UNHEALTHY EATING AND OTHER-REGARDING HARM Slippery Slopes Mill s rejection of paternalism, expressed by the harm principle, makes it morally unacceptable for the state to implement any legislation that prohibits or restricts the consumption of unhealthy food in order to promote the health of the consumers themselves and prevent them from incurring self-regarding harm. It is necessary, therefore, to assess whether and under what circumstances eating unhealthy food can be considered an 570

17 MATTEO BONOTTI LEGISLATING ABOUT UNHEALTHY FOOD other-regarding harmful conduct, thus falling outside the scope of the harm principle. The first point many may observe is that eating unhealthy food differs significantly from other unhealthy practices such as drinking and smoking. Drinking, as Mill himself highlights, can potentially (though not necessarily) lead to harmful other-regarding conduct. The making himself drunk, in a person whom drunkenness excites to do harm to others, Mill argues, is a crime against others (2006, 110). Even more clearly, smoking can often harm other people directly (i.e. through second-hand smoke) and this has been one of the central arguments behind the smoking bans implemented in different European countries throughout the past decade. It is difficult to argue that eating unhealthy foods can have the same harmful effects on others. Yet empirical research has shown, for example, that weight gain (e.g. due to excessive consumption of unhealthy food) can be contagious, under certain family and social conditions (Christakis and Fowler 2007). Furthermore, food aromas (e.g. in shopping malls) can attract people and induce them to consume unhealthy foods [ ] because the sensory information goes to the lower, primitive or reactive parts of the brains before they ever get to the higher, reasoning part (McKenzie 2012, ). Finally, obese people can represent a danger to others in case of emergencies, e.g. when many people need to evacuate a plane or a burning building (Gershon et al. 2007). Each of these arguments deserves to be critically assessed. The first seems to unwarrantedly stretch the meaning of the term contagious and to underestimate the importance of voluntary choice in responding to social and economic conditions. Yet we should be careful in endorsing this conclusion. One s food choices can have significant effects upon other people s health and eating habits. The clearest example is probably that of pregnant women, who are linked to their foetus through close physiological processes and whose diet can therefore significantly affect (and impair) the latter s health (see Bayol et al. 2008). As well as physiological 571

18 ETHICAL PERSPECTIVES DECEMBER 2013 conditioning, however, we should also consider the degree of social conditioning that especially characterizes the internal life of families. Children, for example, are particulary likely to be socialized into the eating habits of their parents. If the latter follow a diet based on junk food, then this is likely both to have harmful effects on their children s health (see Merry 2012) and, more generally, to influence their future eating choices. Should the state thus be allowed to intervene in order to regulate the eating habits of families? Here, it should be noted, the question is not simply whether the state should be allowed to directly interfere with children s dietary habits in order to prevent them from being obese or develop other diet-related illnesses. Mill would not have problems with this kind of intervention as the harm principle, he clearly states, does not apply to [ ] children, or [ ] young persons below the age which the law may fix as that of manhood or womanhood (2006, 16). This would justify measures such as restricting the sale of unhealthy foods to children in school canteens and establishing a minimum age for buying such foods in shops, cafes, restaurants. The more problematic question, however, is whether the state should interfere with the internal life of those families in which children are obese due to poor eating habits. It seems that the kind of all-encompassing interventionist state that a positive answer to this question would warrant sits very uneasily with Mill s views, especially since this kind of intervention, if considered justified, could potentially lead to a slippery slope. By following the same line of argument, that is, one might also justify interference with the choices of those families where there are [ ] parents who are divorced, who smoke, whose children play outside without sunscreen, whose children watch several hours of television a day, whose children attend conservative religious schools, whose children play contact sports (Merry 2012, 5). All these activities and situations can potentially cause harm to children and seriously affect their physical and psychological health. We have seen that the harm principle, however, is a necessary but not sufficient condition for interfering with the liberty of 572

19 MATTEO BONOTTI LEGISLATING ABOUT UNHEALTHY FOOD others, and that sometimes [ ] the attempt to exercise control [i.e. in this case, to regulate extensively the internal life of families] would produce other evils, greater than those which it would prevent (Mill 2006, 18). I doubt therefore that Mill would justify systematic state interference with the internal life of families. A similar conclusion can be made regarding the second example. Even if (and it is a big if) it could be shown that food aromas always compel individuals to consume certain (unhealthy) foods (i.e. through a kind of irrational compulsion/addiction), and that therefore those who eat (or cook) these foods in public are harming others, we should ask whether this would warrant restrictions and controls from a Millian perspective. These restrictions, it should be noted, would need to be quite radical, ranging from the prohibition of eating such foods in certain public places to the obligation for unhealthy eateries located in crowded areas (e.g. shopping malls) to serve their customers behind tightly closed doors. Once again, even if intervention may in principle be allowed by the harm principle, it would cause many more problems than it would resolve (Mill 2006, 18). The third argument seems at first glance more convincing. It has been shown, for example, that during the evacuation of World Trade Centre Tower 2 on 9/11, [o]ther individuals reported that evacuees who were obese, in generally poor physical condition, or who had a disability, slowed down those who were behind them on the staircase (Gershon et al. 2007, 170). These individuals did cause harm to those who, by being slowed down, died or suffered worse injuries than if the evacuation process had been faster. 4 If we assume that the cause of their obesity was excessive eating of unhealthy foods, this may lead to the conclusion that their unhealthy eating should be considered as an other-regarding harmful conduct. Yet this conclusion can be contested. For Mill, we have seen, self-harm only becomes other-regarding when a person infringes [ ] some definite duty (2006, 92) towards others (e.g. one s family, one s creditors, the public, etc.). It is unclear, however, whether we have a definite duty to preserve a physical condition that maximizes the safety of other people. In this sense, 573

20 ETHICAL PERSPECTIVES DECEMBER 2013 it can be argued that the obese person who obstructs others in their attempt to escape from burning buildings is only causing a [ ] merely contingent [ ] injury [ ] to society, by conduct which neither violates any specific duty to the public, nor occasions perceptible hurt to any assignable individual except himself (Mill 2006, 93). This kind of injury, it may be argued, [ ] is one which society can afford to bear, for the sake of the greater good of human freedom (Mill 2006, 93). As Mill highlights, [i]f grown persons are to be punished for not taking proper care of themselves, I would rather it were for their own sake, rather than under the pretence of preventing them from impairing their capacity of rendering to society benefits which society does not pretend it has a right to exact (2006, 93). Furthermore, if we did argue that obese people who obstruct others in burning buildings (or other emergency situations) are morally condemnable and should therefore be subject to social and legal penalties, then we should extend the same conclusion to other categories of individuals. These may include, for example, those who are physically injured or disabled due to activities such as skiing, hiking, jaywalking, playing football, driving etc. (i.e. almost everyone, at some point of their life) and therefore can only walk slowly or with crutches, or are in a wheelchair, and are therefore likely to obstruct evacuation procedures in situations of emergency. It seems that a society in which almost every individual is required to preserve a physical condition that maximizes the safety of other people is one that, from a Millian perspective, warrants too much interference with individual choices and justifies state intervention in most human activities. Once again, it can be concluded that [ ] the attempt to exercise control would produce other evils, greater than those which it would prevent (Mill 2006, 18). Specific Duties to Others There are cases, however, in which unhealthy eating may lead to the infringement of specific duties and obligations we have towards other people and in which, therefore, state interference can be justified on Millian 574

21 MATTEO BONOTTI LEGISLATING ABOUT UNHEALTHY FOOD grounds. For example, Mill highlights, [n]o person ought to be punished simply for being drunk; but a soldier or a policeman should be punished for being drunk on duty (2006, 92-93). The soldier and policeman in Mill s example have voluntarily undertaken specific obligations 5 towards the public (e.g. the taxpayer) and their employer (e.g. the state), but drunkenness prevents them from fulfilling their obligations. This is what renders their conduct morally condemnable and justifies punishment. If we apply this line of argument to the issue of unhealthy food, Mill s views can be used to justify, for example, fining athletes who eat unhealthy foods and, as a consequence, gain weight or become affected by other diet-related health problems (e.g. coronary disease, high blood pressure, diabetes etc.). It is especially important for (most) athletes to be healthy and keep their weight low in order to fulfil the duties they have voluntarily undertaken towards their employer, as well as towards supporters, sponsors, etc. According to this line of argument, therefore, Mill s account does permit, for example, the fines that football club West Ham imposed upon football player Benni McCarthy for being overweight during the season (Edwards 2012). As McCarthy had voluntarily undertaken contractual obligations towards his team and committed to providing it with his football services, and as healthy weight is a crucial condition for the latter, his club was morally entitled to fine him from a Millian perspective. Similarly, more demanding fitness tests for police officers, and penalties for those of them who are overweight (see Anon. 2012a), are justifiable in Millian terms if their rationale is to ensure that police officers are able to perform their job properly. In more general terms, whenever the discharge of a voluntarily undertaken obligation is jeopardized by one s excessive weight, and the latter is a consequence of unhealthy eating (e.g. rather than of an underlying health condition, genetic factors, etc.), then moral reprehension and penalties (e.g. fines, suspension, etc.) are justifiable in Millian terms. If, however, healthy weight is not essential for performing one s job, being penalized for being overweight due to 575

22 ETHICAL PERSPECTIVES DECEMBER 2013 unhealthy eating would clearly be an instance of discrimination, unjustifiable from a Millian perspective. Mill also argues that [i]f [ ] a man, through intemperance or extravagance, becomes unable to pay his debts, or, having undertaken the moral responsibility of a family, becomes from the same cause incapable of supporting or educating them, he is deservedly reprobated, and might be justly punished; but it is for the breach of duty to his family or creditors, not for the extravagance (2006, 92). Mill reinforces this point by arguing that [ ] if, either from idleness or from any other avoidable cause, a man fails to perform his legal duties to others, as for instance to support his children, it is no tyranny to force him to fulfil that obligation, by compulsory labour, if no other means are available (2006, 111). As in the cases of the drunk policeman and soldier, and of the overweight footballer, also these examples point at the moral blameworthiness of rendering oneself unable to fulfil one s voluntarily undertaken duties, i.e. towards one s family or one s creditors. Perhaps it may be more difficult in these cases to understand what kinds of measures Mill would endorse in order to punish individuals guilty of food intemperance, even once the link between their unhealthy eating and the condition that incapacitates them has been ascertained. Mill mentions compulsory labour, but the problem is that the negligent eater (like the negligent drinker or smoker) may often be unable to perform any labour (due to some disabling condition) and therefore fulfil their obligations (e.g. financial ones) towards their creditors or family. How can society then compel the irresponsible eater to fulfil their obligations? It should be remembered here that for Mill harmful actions towards others are not morally condemnable when they are performed [ ] with their free, voluntary, and undeceived consent and participation (2006, 18). This implies that the state should not compel irresponsible eaters to fulfil their obligations, if those whose interests are being damaged do not demand so. On these grounds, lenders could be given the right (but not the duty) to attach compulsory insurance policies to the loans they offer 576

23 MATTEO BONOTTI LEGISLATING ABOUT UNHEALTHY FOOD to customers, as well as to inspect borrowers health conditions (including their weight, lifestyle and any food-related illnesses) and adjust the insurance premiums accordingly. Moreover, in order to minimize the costs for responsible eaters and any risk of abuse, once a loan has been fully paid back all the insurance premiums could be returned to the borrower (e.g. as in the case of return of premium life insurance policies). This would not defeat the scope of these insurance policies, which, it should be made clear, is to prevent lenders from incurring a financial loss, not to increase their profits. In fact, however, these insurance policies would still provide an additional benefit for lenders, i.e. in the form of available funds to be invested elsewhere while waiting for the loan to be fully repaid. Marriage relationships, however, are a more sensitive matter. State intervention to ensure that the obligations undertaken by the parties involved are fulfilled should therefore be more cautious. Yet it could still be argued that, from a Millian perspective, spouses should have the right not only to morally condemn their irresponsible partners, but also to demand material (e.g. financial) guarantees from them if they fail (or there is a significant risk that they may fail) to fulfil their obligations due to unhealthy eating. Mill, we have seen, even allows the use of compulsory labour in these instances. His account, therefore, also justifies a spouse s right (protected and enforced by the state) to legally oblige their partner to take out a life or critical illness insurance policy, when there are significant grounds to believe that their unhealthy eating habits may lead to death or seriously incapacitate them. These measures, of course, might be open to abuse. However, as in the case of insurance policies imposed upon borrowers, also in this instance the return of premiums formula could be adopted, in order to minimize the risk of abuse against spouses who are healthy eaters. Moreover, special bodies may be created in order to monitor controversial cases, i.e. when one spouse refuses to take out an insurance policy upon the partner s request. Regardless of the specific details of these 577