Critics of New York City Mayor Michael Bloomberg’s plan to ban the sale of soft drinks over 16 ounces in convenience stores, movie theaters and street carts are having a field day.
Big Thinker Peter Lawler labels Bloomberg the “sugar Nazi.” Tucker Carlson calls him “an out-of-touch rich guy with a Napoleon complex who is offended by the idea that the proles are drinking sugary soda.” And Jon Stewart joked last night that the proposal “combines draconian government overreach people love with the probable lack of results they expect.”
Opponents might try to enlist Jon Stewart’s namesake — John Stuart Mill, the great 19th-century English philosopher of liberty — as another critic of Bloomberg’s nanny-state paternalism. When a citizen wreaks a little havoc, Mill writes, “the inconvenience is one which society can afford to bear, for the sake of the greater good of human freedom.” Adults should not “be punished for not taking proper care of themselves.” Let them eat cake. And let them stop in at a 7/11 to buy a Big Gulp (32 oz.), or even, if they’re really thirsty, a Super Big Gulp (1.2 liters). Hey, it’s a free country. Drink up, diabetes be damned.
But hold off on that conclusion for a moment. Join me on an intellectual exercise where we try to justify Bloomberg’s ban by using Mill’s own Harm Principle as the theoretical guide. I think it can be done.
The Harm Principle states this:
The sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.
So if the ban on Big Gulps aims only to improve the health of individuals, it is a non-starter for Mill. The only circumstance in which the state can intervene to protect an individual is when he is unwittingly putting himself in immediate and grave danger:
If a public officer or anyone else saw a person attempting to cross a bridge which had been ascertained to be unsafe, and there was no time to warn him of his danger, they might seize 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.
Drinking too much sugary soda may not be good for you, but quaffing a big bottle of 7-Up is unlikely to kill you on the spot. When the danger to an individual is in this (milder, less immediate) category, Mill argues that the individual “should be warned of the danger, not forcibly prevented from exposing himself to it.”
But if one’s actions have harmful effects on other people, the story is quite different. Here is the beginning of a Millian defense of Mayor Bloomberg’s proposal. A good deal of research reveals a link between the consumption of sugared sodas and obesity. A public health official in Chicago makes this point, and a California study from 2009 found that “adults who drink a soda or more per day are 27 percent more likely to be overweight than those who do not drink sodas, regardless of income or ethnicity.” New York’s health commissioner claims that sweetened drinks account for “up to half of the increase in city obesity rates over the last 30 years.”
By itself, establishing that soda is a significant factor in rising obesity rates wouldn’t be enough for Mill to justify interfering with individual choice. Instead, he would urge “labeling the drug with some word expressive of its dangerous character” to more fully inform soda drinkers of the health risks they are assuming. Mill would applaud the New York City Health Department’s subway ad campaign discouraging soda consumption. One ad asks, “Are you pouring on the pounds?” and depicts frothy fat flowing from a Coke bottle; it advises riders to “cut back on soda and other sugary beverages” and “go with water, seltzer or low-fat milk instead.”
But it is one thing to exhort and another to regulate. The next step toward justifying Bloomberg’s latest move, from Mill’s point of view, is proving that obesity causes harms that extend beyond the girth of the individual. A comparison with his comments about drunkards is telling:
Drunkenness...in ordinary cases, is not a fit subject for legislative interference, but I should deem it perfectly legitimate that a person who had once been convicted of any act of violence to others under the influence of drink should be placed under a special legal restriction, personal to himself; that if he were afterwards found drunk, he should be liable to a penalty...
Like drunk drivers, obese people can and do cause harm to others: obesity costs society about $190 billion every year in health care costs alone. As American obesity has risen from 13 percent to 34 percent of the population between 1960 and 2010 — and morbid obesity has grown from under 1 percent to 6 percent — it has imposed a huge burden on society. Here is just a sampling of annual costs:
The obesity premium takes its toll on everyone in the form of higher taxes, higher health insurance premiums, more expensive airplane tickets and decreased worker productivity. It harms all. It is thus subject to regulation by the state. As a consequentialist, Mill would want to see that Bloomberg’s plan has its intended effect of bringing down obesity rates and he would end it if it did not prove effective. But I think he’d be open to the idea of trying to reduce soda consumption with this regulation. This passage from chapter 5 of “On Liberty” speaks directly to the issue:
Almost every article which is bought and sold may be used in excess, and the sellers have a pecuniary interest in encouraging that excess...The interest, however, of these 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.
In this passage Mill refers to a law limiting the sale of alcohol, but its logic extends to Sunkist and Mountain Dew and the rest — both in terms of the harms that “excess” amounts of the beverage can cause to consumers and society and in terms of the “pecuniary interest” the beverage industry has in cultivating excess consumption.
As counterintuitive as it may appear, on this question Mill would be Bloomberg’s friend.
Acknowledgment: Thank you to all of my “Social Contract and Its Critics” students, whose analyses of “On Liberty” in this afternoon’s ferociously good debate inspired, and informed, this post.
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