A Commentary on Dean Galea’s Note.

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Dean Galea has asked me to comment on his Dean’s Note on paternalism, knowing that I will disagree with some of his positions. He and I both hope that this dialogue can serve as an example of the interactions we should be having with our colleagues and students that involve difficult ethical issues as they apply to public health practice. We obviously agree that the fundamental goal of public health should be to protect and improve population health. Our dispute is about what constitutes justifiable means to achieve this end. So what actions are justifiable in the name of public health?

Dean Galea starts his note by asserting that there is perhaps no easier way to tarnish the work of public health than to accuse it of engaging in the “paternalistic actions” of a “nanny state” to achieve its ends. My concern is not with the accusers who tend to be broadly anti-regulatory, but with the public health policy-makers who give the accusers such ample justification for this charge. By using coercive and paternalistic interventions to change individual behaviors, public health tarnishes its own image.

In his note, Dean Galea uses an example from Mill’s On Liberty in which a person justifiably intervenes with a traveler who is unaware that a bridge is out and therefore is unknowingly subjecting himself to serious injury (not a risk of injury, but injury itself). But earlier in his essay, Mill sets forth his general principle:

The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.

He also asserts

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. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right.

This absolutist language is based on Mills’ conviction that individuals themselves are the best judges of what constitutes a good for them, not the government or the “tyranny of the majority.” The bridge example that Dean Galea uses is applicable when the person is ignorant of the facts and therefore is unable to rationally determine her own interests. It is important to note that Mill only applies his general principle to adults and persons capable of reason. Children and non-rational beings deserve our protection.

I disagree with Dean Galea that labeling constitutes either “soft paternalism” or a “nudge.” Information that is accurate and non-misleading enables people to make informed choices about what they believe to be in their interests. I am entirely in favor of caloric labeling in restaurants, even though the data strongly suggests that it has no impact on calorie consumption. But I think some individuals would find this information important to enable them to make the choices they care about, and I cannot think of a reason they should not have it. Such labeling enhances liberty, it does not impair it. It is important that we not, ourselves, label non-paternalistic measures as paternalistic because we do not want to give the “anti-nanny staters” additional ammunition.

Paternalistic measures are employed in public health because public health wants a compliant population, not an informed one. When accurate labeling does not “work,” advocates move on to more coercive measures. Cigarettes have been appropriately labeled with increasingly dire warnings. The warnings have evolved from informing smokers that cigarettes “may cause cancer” to current warnings that say “cigarettes kill” and cause a variety of serious diseases and conditions. If we wished to have an informed smoking population, we would measure what smokers know about the risks of smoking. But success in labeling is not measured by what smokers know about the risks. Success is determined by the number of people who stop, or do not start, smoking. The goal is to control behavior and have people do what we think is best for them.

When informed people make choices we do not like, we increase the pressure on them to be compliant. We move from written warnings on cigarette packs, which inform, to grotesque (and misleading) pictures on cigarette packs that are meant to disgust. Or we ban smoking in parks, although there is no health justification for doing so. Recognizing that it was not possible to make a supportable argument that secondhand smoke presents a risk to non-smokers in parks, Thomas Farley, the New York City commissioner of health at the time, said that children should not be allowed to see people smoking. This is an example of the extent to which public health advocates go to deny that their acts are paternalistic and to pretend that their actions are designed to protect others. Obviously the reason Farley wants smoking bans in parks is because it give smokers less opportunity to smoke—to protect them from their “foolish” choices.

Another example of this strategy is the justification given for mandatory motorcycle helmet laws. These laws are enacted to protect motorcycle riders from their “foolish” choice not to wear a helmet—an example of pure paternalism. But when challenged in court, states deny the paternalistic goal. They instead argue that the reason for such laws is that unhelmeted motorcyclists who have an accident cost more money to treat than helmeted riders, and that the cost is paid by the population in general; the helmet laws were thus enacted to protect the state’s treasury. The use of such prevarications is unseemly and should be rejected by an ethical profession.

When New York City decided it needed to outlaw the use of large cups for sweetened drinks, there was widespread mockery of the idea, and rightly so. It was not labeling—the measure did not involve requiring calorie counts of large and small servings on menus or even on the cups. Rather, it made larger portions in restaurants unlawful. The city argued that people could order a second or third cup (and pay more for it), so this was not coercive. So why didn’t New York City place a portion control on wine served in its ritzy restaurants? Wine is not only caloric, but also alcoholic. Shouldn’t we public health advocates “nudge” the patrons in these restaurants not to drink excessively by banning the sale of whole bottles of wine? Certainly no good can come from someone dining alone who orders a bottle of wine. How many times have you had that extra glass of wine because the bottle on the table was not yet empty and you did not want to “waste it?” Wine could be served in small glasses, and patrons could order as many glasses as they wished. Of course, regulating wine portions would affect the mayor and his friends, unlike the sweetened drink portion restrictions. Much, if not most, of our “nudges” are created to manipulate the behavior of the less well off. Of course, on its face, the portion control rules apply to everyone. As Anatole France noted in 1877, “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.”

For an act to be paternalistic, it does not need to ban or outlaw an activity. There are other effective methods of coercion. Public health is fond of “sin taxes,” which include taxes on alcohol, cigarettes, and, in Berkeley, California, sweetened drinks. Mill himself notes that taxes are paternalistic when they are implemented to control behavior. Raising the prices puts them out of reach of poorer people. Regulating the poor has a long history in the US. Increasing taxes works as well as a ban or a prohibition for many people. We must ask: Should it be governmental policy that the well-to-do have more liberty than the poor?

There is also the finger-wagging that so many find distasteful. A perfect example is the recent action of the CDC to tell pre-pregnant women that they should not drink any alcohol. Pre-pregnant women include any post-pubescent woman who is not sterile or using an IUD or other reliable contraception. This drew outrage from many liberal commentators (who usually like government interventions) for treating all pre-pregnant women as dumb incubators who should constantly be concerned that any action they take will negatively affect their unconceived child. A CDC spokeswoman was actually required to respond to the criticism and say, “I absolutely respect women and want them to be empowered…. Some of the coverage that portrayed the CDC as only thinking about women as incubating babies was a big misunderstanding of our attitude.” Whether it was a “big misunderstanding of our attitude” is her opinion, not a fact, but apparently the CDC is incapable of understanding how its actions evoked this widely negative reaction in its target population. If you go to the CDC page on Alcohol and Pregnancy, and the MMWR report that led to the news coverage, you will find nothing “empowering.” The data in the MMWR report is about the number of possible “alcohol exposed pregnancies,” and does not distinguish between women who have an occasional glass of wine and women who drink a gallon of vodka a day; they are all are “at risk” for an “alcohol-exposed pregnancy.” It makes no attempt to explain why pregnant women in France, Spain, and Italy—who regularly drink wine with their meals—do not produce large numbers of damaged children. The CDC fails to mention that there are a number of studies that show light to moderate drinking has no adverse effect on childhood development. The lack of this information demonstrates that the CDC did not wish to “empower” women, or to enable them to make an informed choice, but to get them to comply with what the CDC thinks is the right behavior. Presenting incomplete information and saying there is a “risk” without complete information is a form of coercion.

Why the CDC takes this stand is explained by a phrase its spokeswoman used at the press conference and on its website on pregnancy (now including pre-pregnancy) and alcohol. It asks at the top of the page, “Why take the risk?” It is not clear if this is meant to be a rhetorical question or that the CDC employs no one who can actually answer it. It appears that the CDC really does not understand why pre-pregnant women would want to take the “risk,” no matter how small that risk my be. The CDC’s inability to contextualize is likely a result of thinking of life as a collection of health outcomes. Pleasure plays no role in the CDC’s worldview, though it is an important value to individuals. This exemplifies Mill’s point that only the individual can determine what is best for her.

While both public health and paternalism usually refer to governmental action, we are experiencing the privatization of paternalism with the support of the public health community. For example, the WHO, the Cleveland Clinic, and the Massachusetts Hospital Association will not hire smokers. If this practice spreads, smokers will be deprived of employment. The public health community has happily gone along with this powerful form of coercion, although concern has been voiced by some in the community. Private companies have “wellness” programs that either fine workers or raise their health insurance premiums if they smoke, are overweight, have high blood pressure, high cholesterol, and so forth. For lower-paid workers, this is extremely coercive. While there are claims that these programs save employers money in health costs, there is little, if any, evidence this is true. The plan to make public housing smoke-free uses for its justification the pretext that this protects neighbors from the damage done from secondhand smoke. Of course, smokers can quit (the real goal of the proposal) or go homeless—it’s up to them. Similar to the CDC and its pre-pregnancy alcohol position, the argument that there is “no safe” exposure to secondhand smoke is a misleading statement. If we were required to live in a “safe” world, it would be a very unpleasant place.

My final point is that it is necessary to distinguish between paternalistic rules (those that coerce individuals) and public health actions that are entirely non-paternalistic. As I mentioned earlier, this would include all accurate and non-misleading labeling. In his note, Dean Galea refers to food safety initiatives as an example of paternalism. If I understand that to mean regulations requiring sanitary food processing and restaurant practices, and requiring that ingredients be fit for human consumption, then there is nothing paternalistic about those measures. Protecting people from serious risks of harm they cannot protect themselves from is precisely what public health should be doing. People cannot protect themselves from what comes out of industrial chimneys (or residential chimneys for that matter—but who wants to go there?). The people of Flint, Michigan, cannot control the water that flows to their taps. Public health must regulate these activities—this is not controlling individual choice, but rather making food, air, and water and safe to eat, breath, and drink. Removing transfats from food is no more paternalistic than removing other dangerous ingredients. Individuals did not choose to put transfats in food. But women can decide if they want a glass a wine, and people can decide what size cup they wish to use. We must not confuse paternalism with industrial regulation. It is important to distinguish between regulating people and regulating things.

Now that Mayor Bloomberg has moved on from trying to regulate soft drink cups and smoking in parks, he has dedicated himself to advocating for gun control, which is unrelated to paternalism. Wherever Bloomberg goes to advocate for gun control, his opponents bring out the “nanny state” signs, claiming first he wanted to take our Slurpees away and now he wants our guns. Bloomberg gave them that ammunition, and we should learn something from that.