Paternalism and Public Health.
There has been perhaps no easier way to tarnish the work of public health in the past decade than to suggest that public health is engaged in actions that are “paternalistic”—or, to put it in the more commonly accepted vernacular, exposing us to a “nanny state.” This charge has particularly affixed itself to actions taken in New York City during the tenure of Michael Bloomberg as mayor, and is perhaps best epitomized by the effort, in 2012, to amend the NYC Health Code so that “food service establishments” limit the size of containers used to sell sugary drinks. The intent of the Sugary Drinks Portion Cap Rule, as the measure was called, was to elevate public awareness of the health challenges of sugary drinks and their contribution to the obesity epidemic. I had the privilege at the time of sitting on the NYC Health Board and voted for this rule. The effort came on the heels of other public health initiatives enacted by Bloomberg, including an indoor smoking ban and a ban on trans-fat. The soda rule, however, proved something of a bridge too far. Its opponents argued that it was wrong-headed and paternalistic, an unforgivable imposition of the “nanny state” on the lives of citizens. The rule was ultimately struck down by the New York Court of Appeals.
Why has the charge of “nanny state” been such an effective rallying cry for opponents of government-sponsored public health measures? How do we come to grips with the accusations of paternalism that are sometimes directed our way? Is public health, in fact, inherently paternalistic? If so, is this necessarily a bad thing?
Both the word “paternalism” and the phrase “nanny state” suggest the actions of a parent looking after a child. While for some this may be comforting, and perhaps consistent with the role of government in general, for many it is precisely the problem. Critics suggest that there is an infantilization at work here, a finger-wagging in the face of the sovereign individual. The citizen is deemed unfit to make her own decisions and must therefore be told what to do by those who think themselves in the know. It is not difficult to grasp why this view of paternalism might upset some. In some cases, in fact, public health has been its own worst enemy. Recent advice from the Centers for Disease Control and Prevention that all women of childbearing age should avoid drinking alcohol has been widely, and perhaps justifiably, criticized as being unnecessarily paternalistic.
What has been missing in the ruckus surrounding the CDC’s recent recommendation, however, is the form of CDC’s recommendation. CDC’s advice was just that—advice. The report did not advocate banning alcohol, nor was it in any way coercive. It was designed to inform, not to interfere. This distinction—between a paternalism that guides people’s choices through suggestion, or “nudges,” and a mode that relies on penalties and outright prohibitions—is an important one.
Let us illustrate this with a metaphor borrowed liberally from John Stuart Mills’ On Liberty, a work that attempts, among other things, to determine to what extent the state may be permitted to interfere in the lives of citizens “for their own good.”
A man is backpacking in a foreign country where he does not speak the language. As he hikes a mountain trail, he approaches a steep gorge. Across the gorge runs a bridge. As the man approaches the bridge, he sees that there is a sign next to it, but because the message of the sign is written in the country’s native tongue, he cannot understand what it says. If he could, he would recognize it as a warning: “Stay off this bridge! It is unsafe.”
Now imagine that you are a native of this country, watching this scene unfold. You speak the language and can understand the sign. Will you intervene, and explain the danger to the traveler? Or will you let him take his chances? Say you were to intervene and physically prevent him from crossing. You apprehend him and inform him, in his own language, of the risk he would run in proceeding. You then ask him if, knowing what he now knows, he would still like to go on. He answers “yes.” Having heard his response, you decide, for his own safety, not to let him cross. This is what is known as “hard paternalism”—when a government places laws between the citizen and his poor choices. In his treatise The Moral Limits of Criminal Law, political philosopher Joel Feinberg writes, “Hard paternalism will accept as a reason for criminal legislation that it is necessary to protect competent adults, against their will, from the harmful consequences even of their fully voluntary choices and undertakings.”
But say you never chose to restrain the traveler. Say you just stepped forward and helpfully translated the sign for him, and he—now fully comprehending his situation—decided to turn back. You would have saved his life without resorting to anything more drastic than simply making sure the man was aware of the danger he was in. You would have interfered with his choice only to check that it was truly voluntary—after all, if a man doesn’t know that a bridge is unsound, he doesn’t know that his decision to cross or not is actually a choice between life and possible death. His ignorance therefore becomes a kind of coercion, forcing him to make a call he never intended to make. In this regard, your interference actually increases his autonomy, as he now knows what he’s getting into and can plan accordingly. This is the function of “soft paternalism”—to make sure that an individual’s choices are fully informed, so that they can be fully voluntary.
Cigarette warning labels are a good example of soft paternalism at work. Consider the situation as it was 50 years ago. With all the marketing savvy of the tobacco industry laboring to make smoking seem like a glamorous lark, a consumer might have been forgiven for not knowing that the activity can lead to some truly grisly health outcomes. Back then, it was possible to consider buying a pack of cigarettes without knowing that the question “to smoke, or not to smoke?” was, more realistically, the question “to lose a lung and possibly harm my family with toxic fumes, or to avoid all that?” The introduction of warning labels allowed the consumer to decide with open eyes. In the case of smoking, prevention measures have stopped short of hard paternalism (the sale of cigarettes is still legal in the United States), but regulation ensures that the consumer is now aware of the risk. Perhaps this knowledge might even nudge her behavior in a healthier direction.
Such nudges are all around us. We are, in fact, regulated at all times and on all fronts—we just do not think about it. From seat belt laws, to food safety initiatives, to hunting seasons, our society is full of measures designed to promote the general welfare through benign, commonsense regulations. When we begin noticing the ubiquity of these rules, the uproar occasionally provoked by public health efforts can start to seem a bit arbitrary. The much-decried Portion Cap Rule, for example, was widely known as a “Soda Ban.” Actually, it was not a ban at all, but merely a limit on how much soda could be sold in a single container. Nothing about the rule would have prevented the consumer from buying a second beverage, if she so desired. The idea was that, by changing the default soda size, most people—inertia being what it is—would not have made the extra effort to order more. Thus health outcomes might have been improved, without infringing on anyone’s freedom of choice. It is worth noting, too, that food companies regularly cut back on the amount of product they provide, though for perhaps less noble reasons than those enumerated by Mayor Bloomberg. While the proponents of free access to all sizes of sugary drinks may have (for the moment) won the day in New York, genuine bans on soda and junk food have been smoothly implemented right here in Massachusetts, in an attempt to fight obesity in our schools.
As Cass Sunstein, former administrator of the White House Office of Information and Regulatory Affairs, has written, “Paternalism comes in a lot of shapes and sizes.” It can be hard or soft, obtrusive or carefully dispensed. The concept of the “nudge,” as explored by Sunstein and his colleague Richard Thaler, represents a powerful tool for improving the health of populations while at the same time respecting individual autonomy. The nudge might be anything from a label that tells you how long it will take to burn off the calories contained in a particular food to a tax hike on a harmful substance. Far from an assault on liberty, straightforward measures like these can actually lead to more freedom in the end, for the simple reason that healthy people, generally, have more options than sick people.
If mild, conscientious regulation stands to help a population sidestep the emotional, financial, and physical burdens of disease, then it is an option we ought to embrace. It is worth remembering that the so-called nanny state is not the only actor at play here. There is a broad range of efforts—from corporate interests to other public sectors’ agenda—that aim to influence consumers’ decisions. For example, Janet Hoek has argued in the pages of Public Health that “rather than depriving individuals of freedoms, state intervention maintains and defends those freedoms against commercial interests, which potentially pose a much greater threat to free and informed choice.” If we make no attempt to nudge the public toward a higher standard of living, there are others who will be all too happy to steer us down a more hazardous road. I stand firmly on the side of public health, and efforts to nudge us towards the direction of healthier populations.
As I conclude, I recognize that the topics addressed in the Dean’s Notes are indeed controversial. As I acknowledge below, my conversations with Professor Leonard Glantz motivated this note; Professor Glantz and I also disagree on several facets of this topic. To the end of catalyzing conversation, I asked Professor Glantz to write a Viewpoint reflecting on this Dean’s Note. He has generously agreed to do that, and his Viewpoint is also published in SPH This Week. As always, I look to motivate debate about the issues central to public health, and I would encourage all members of our community to join the discussion.
I hope everyone has a terrific week. Until next week.
Warm regards,
Sandro
Sandro Galea, MD, DrPH
Dean, Robert A. Knox Professor, Boston University School of Public Health
@sandrogalea
Acknowledgement: I am grateful for the contributions of Eric DelGizzo and Catherine Ettman to this Dean’s Note, and to Professor Leonard Glantz, whose challenge motivated it.
Previous Dean’s Notes are archived at: https://www.bu.edu/sph/tag/deans-note/
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