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Free to Consume? Anti-Paternalism and the Politics of New York City’s Soda Cap Saga

Free to Consume? Anti-Paternalism and the Politics of New York City’s Soda Cap Saga Abstract In 2012, New York City Mayor Michael Bloomberg proposed capping the size of sugary beverages that could be sold in the city’s restaurants, sporting and entertainment facilities and food carts. After a lawsuit and multiple appeals, the proposal died in June 2014, deemed an unconstitutional overreach. In dissecting the saga of the proposed soda cap, we highlight both the political perils of certain anti-obesity efforts and, more broadly, the challenges to public health when issues of consumer choice and the threat of paternalism are involved. In 2016, 2 years after implementing a national tax on sugary drinks, Mexico, the nation with the highest per capita rates of soda consumption, obesity and diabetes among Organisation for Economic Co-operation and Development countries, announced a 12 per cent reduction in soft drink sales and a 4 per cent increase in water consumption (O’Connor, 2016). The public health community had been eagerly awaiting evidence on the impact of the policy, which had been strongly endorsed by medical groups and forcefully opposed by the food and beverage industry; the numbers suggested that individual behavioral change could be effected through broad social measures to improve health outcomes (O’Connor, 2016). The announcement of Mexico’s public health achievement came almost 2 years after a resounding public health defeat in the battle against sugary beverages in New York City. In June 2014, New York’s highest court sounded the death knell for Mayor Michael Bloomberg’s proposed ban on the sale of sodas larger than 16 ounces in the city’s restaurants, sporting and entertainment facilities and from its food carts. While it will be important to understand what went into the Mexican policy triumph, it is critical to examine the New York City saga of failure because of what it may tell us, not only about the political perils that anti-obesity efforts confront, but more broadly about the challenges to public health when issues of consumer choice are involved. Introduction By 2012, medical and epidemiological evidence demonstrated a clear relationship between the overconsumption of sugar-sweetened beverages and negative health impacts, including certain kinds of cancer, heart disease and obesity (Lustig et al., 2012). Anticipating that his unprecedented effort to curb obesity would spark debate about freedom of choice, Bloomberg stated, ‘You can still be obese. We’re not keeping you from eating fattening foods or drinking 32-ounce bottles of full-sugar drinks…. We are just telling you that this is detrimental to your health and making you understand that’ (Geller, 2012). According to a 2012 mayoral task force report, average drink sizes had risen 457 per cent since 1955, from 7 to 32 fluid ounces. These oversized drinks led to unconscious consumption of excess calories, which, especially in conjunction with a sedentary lifestyle, is a well-established key contributing factor to obesity and obesity-related diseases. Therefore, the task force saw ‘setting a maximum size for sugary drinks…[a]s a way we change the default and help reacquaint New Yorkers with “human size” portions to reduce excessive consumption of sugary drinks’ (The New York City Obesity Task Force, 2012). The mayor’s proposed ‘cap’ on the size of sugar-sweetened beverages sparked a bitter dispute about the legitimate scope of regulations designed to advance population health and provide consumer protection. Five interrelated questions informed the public debate: Did the proposed policy divert attention from the broader social factors that contributed to obesity? Was there evidence that the proposed policy would reduce caloric intake at a population level, particularly among those at highest risk of obesity? If there was a public health benefit, did it justify the intrusion on liberty? Would the proposed regulation unfairly burden small or minority-owned commercial establishments? Did the Board of Health overreach in adopting the limit on soda portion size, usurping the authority of the democratically elected City Council? Different interpretations and uses of consumer rights and the role of the market in ensuring social inclusion shaped the debate, raising concerns about autonomy and paternalism. Public health advocates sought to make the case that consumer protection from a pervasive commercial toxin that created profound health disparities was at stake, similar to the case made for regulating alcohol (Lustig et al, 2012). Paternalistic measures, even if not so denominated, were crucial to ensuring informed choice and achieving the protection of the collective good, hence use of the term ‘soda cap’ to describe the public health measure. The beverage industry, on the other hand, decrying the misleadingly labeled ‘soda ban’, underscored familiar talking points: working class, blue-collar interests in consumer choice; threats posed by paternalistic measures framed as autocratic encroachments on the central American value of autonomy; and the illegitimacy of bureaucratic determinations that disregarded the will of the people. Public health advocates dismissed those arguments as evidence of corporate manipulation, failing to appreciate that arguments about consumer choice have complex historical meanings involving deeply rooted notions of egalitarianism, democracy and ‘everyday citizenship’ (Fairchild, 2006). The history of the soda cap measure, then, is not just a story of the triumph of business interests, but one of public health’s failure to effectively shape a narrative—to set into bold relief the positive side of paternalism—that portrayed the soda cap proposal as the legitimate embodiment of the legacy of consumer protection against toxic threats. History and the Politics of Framing: Protection versus Information The groundwork for the battle over the meaning of consumer rights in regard to soda was laid from 2008 to 2010, when both New York City and State tried, but failed, to apply one of the chief strategies that had worked to curb smoking rates: heavy taxes. In late 2008 Governor David Paterson proposed an 18 per cent sales tax on non-diet sodas and fruit drinks containing less than 70 per cent fruit juice as a public health measure (Chan, 2008a). The American Beverage Association (ABA) denounced the proposal as ‘a money grab’, while supporters hailed it as akin to the cigarette tax in its potential to reduce the sales of products linked to obesity-related adverse health outcomes (Chan, 2008a; Kristof, 2008). A December 2008 poll conducted by Quinnipiac University found that 60 per cent of New York State voters opposed the so-called obesity tax, with opposition spanning political party lines (Chan, 2008b). The tax effort failed again in 2010. Given the repeated failures to impose taxes on sodas, Bloomberg sought alternative policies, embracing, in 2012, the idea of a soda cap. The Editorial Board of the New York Times, in opposing Bloomberg’s proposal, implicitly drew on the founding history of consumer rights protection. Laws prohibiting the sale of ‘swill milk’, contaminated meat or adulterated drugs stand as landmarks in the history of consumer protection. This tradition of protection was grounded in the logic that freedom from risk was essential when it came to such basic necessities: it was not enough to warn when food, water or medications might be unsafe.1 For the Times, Bloomberg’s ban on trans fats (based on self-regarding harms of which individuals were ignorant) and on smoking in bars and restaurants (based on the harm it posed to bystanders) fell comfortably into this tradition. As leisure-related products began to define American consumer society after the 1920s, making information available to consumers emerged as a second important tradition when it came to known ‘voluntary’ health risks (Brandt, 2007). The requirement that chain restaurants post calorie counts was, for the Times, a prime, acceptable example of this second regulatory approach. This, argued the editorial board, was also the approach that was needed for overconsumption of soda. The City’s ‘tough anti-obesity advertising campaigns’, focused on sugary drinks, provided the model to follow (Editorial Board, 2012). In part, the debate that unfolded mirrored the two faces of the consumer protection model: prohibition versus information and education. Epidemiologists and academic leaders, American entertainment celebrities and prominent political leaders including former President Bill Clinton supported the City in arguing that it was essential to curb commercial practices and products that created a toxic environment. For example, food critic Mark Bittman (2012) wrote: ‘What we need is the equivalent of a dietary seat belt’. While acknowledging concerns about the ‘slippery slope’, Bittman’s Times colleague Frank Bruni concluded, ‘We have a long way to slide before there’s a cause for alarm commensurate with the urgency of the problem [Bloomberg is] trying to whittle away at’ (Bruni, 2012). The central strategy of opponents was giving paternalism a decidedly negative spin, framing the proposed policy as baldly paternalistic, an unjustifiable intrusion on consumer choice. The American Beverage Association, which led the battle against soda taxes, portrayed itself as liberty’s champion. A small plane flying over the city pulled a banner that warned, ‘NO DRINK 4 U!’ (Grynbaum, 2012a). Soda delivery trucks bearing the silhouette of a muscular man holding aloft a supersized soda—evoking the Statute of Liberty—advised, ‘Don’t let bureaucrats tell you what size beverage to buy’. The artistic politics evoked not only labor posters with their working-class demands for social justice but also the Civil Rights era iconography of the raised fist with its call to resist the oppressive state (Today in Labor History, 2015). A New York Restaurant Association spokesperson invoked imagery of a slippery slope, warning an ethnically diverse city: ‘They could take away our hot dogs. They could take away our steaks, our calzones!’ (Grynbaum, 2012b). The restaurant and food industry funded Center for Consumer Freedom added pizza and corned beef sandwiches to the list of working-class favorites in jeopardy (The Center for Consumer Freedom, 2011). Building on the groundwork laid by the Center for Consumer Freedom’s earlier ‘You Are Too Stupid’ campaign against the city’s trans fat ban, City Council members, union workers and industry lobbyists rallied at theaters carrying signs reading, ‘I can make my beverage choice myself’ (Ovadia, 2012). If limiting the size of sodas was a paternalistic attack on consumer choice, opponents pitched educating and informing potential consumers as the better public health approach. A New York state movie theatre industry lobbyist was quoted as saying that while obesity was an epidemic, it was one that ‘should be handled through education’ (Grynbaum, 2012a). Likewise, a leading member of the City’s highest legislative body, who represented districts with high concentrations of Blacks and Latinos, argued, ‘the city would be better off renovating parks and playgrounds and emphasizing physical education in schools rather than going after a specific product’ (Grynbaum, 2012b). Like others, she shrewdly adopted the reformist language conventionally employed in public health, stressing the broad social causes of chronic disease and emphasizing the ultimate futility of narrowly targeted interventions (DOHMH, 2012). Key to the ultimately effective political strategy of the ABA was the creation of New Yorkers for Beverage Choices, a coalition of small grocery stores, movie theater owners and unions. In addition to calling persuasively on the second tradition of consumer rights that required informing without limiting choice, the beverage industry sought to capitalize on the potential impact of the proposed rule on minority-owned businesses. The US Hispanic Chamber of Commerce argued, ‘There are 143,000 Hispanic-owned businesses in New York City…Many of these small businesses rely on soda as a main revenue generator…[The proposed policy] will make it increasingly difficult for these businesses to continue to operate’ (Palomarez, 2012). The Korean–American Grocery Association, the National Restaurant Association and the National Association of Theater Owners warned that the cap would harm commercial interests, small business in particular (DOHMH, 2012). The Teamsters Union talked about the impact on blue-collar workers employed in the beverage industry: ‘The city should think about the impact [the ban] will have on hard working New York City residents that are employed in this great industry and, by the way, pay taxes’ (DOHMH, 2012: 107). The New York State Conference of the National Association for the Advancement of Colored People (a legal organization) (NAACP)—a long-established leader in the Black Civil Rights movement—denounced the proposal, its president declaring, ‘Bloomberg’s ban attacks the little guy while giving a pass to big corporations’ (Williams, 2013). Some 60,000 people signed a petition opposing limits on the freedom to consume (Bhasin, 2012). Thus, the winning narrative was not just one that attacked big government telling citizens, broadly speaking, what to do, but one in which the government was telling the ‘regular Joe’—the blue-collar worker—what to do and, in the process, killing the American dream by harming the small and minority business owner. To be sure, there is a serious body of scholarship that understands such framing as part and parcel of a long history of manipulating desire (Somers, 2008: 2, 4). Despite this, it is important not to dismiss the fact that consumption and consumer choice in the USA have been linked to inclusion and market membership in popular discourse, making paternalistic measures particularly hard to swallow. The Debate Articulated and (Initially) Resolved The stage was thus set for the New York Board of Health hearing on 24 July 2012, where 50 people spoke for and against the soda cap proposal. Proponents typically tried to avoid the traditional protection versus information dichotomy, instead framing the proposal as no more than a ‘nudge’,—a libertarian paternalism perspective made popular by Richard Thaler and Cass Sunstein that preserved choice (2008). The Public Health Association of New York City testified, ‘We believe in the public’s right to choose the food and drinks they consume. However, we should make healthy choices easier…. [R]outine choice, whenever possible, should be a healthy one’ (DOHMH, 2012: 146). Social justice provided a moral foundation for the soda cap proposal. Advocates underscored the burden of obesity and its associated maladies as socially constructed, thus demanding corrective intervention in the name of fairness. The Community Service Society—a long-established social welfare organization and advocacy group—asserted that obesity was ‘a direct attack on New York’s Black and Brown community and poor communities and it particularly rips through our adolescents who are already facing discrimination, poverty, [and] lack of education’ (DOHMH, 2012: 39–40). The Brooklyn Ecumenical Advisory Group, a religious NGO, directly challenged those asserting that the proposed policy would unfairly stigmatize the poor. ‘In fact’, they said, implicitly invoking the protective state, ‘it will ease the unfair burden on the poor of being the victims of an industry in which profit trumps good health’ (DOHMH, 2012: 55). This strong moral position was, proponents argued, backed by the certainty surrounding the scientific evidence. ‘Larger portions lead to overconsumption’, said Yale University’s Dr Kelly Brownell. To underscore the gravity of the situation he asserted that sodas ‘were the single greatest source of added sugar in the American diet’ (DOHMH, 2012: 35). Despite the near unanimity of the New York City Board of Health vote—eight voted in favor and only one abstained—some who voted ‘yes’ expressed doubt about how effective the measure would be. One physician, for example, acknowledged, ‘We don’t have… large-scale studies showing that this kind of policy change will have an impact on obesity or incidence of diabetes, because such a policy has never been implemented’. But, he reasoned, ‘Waiting for perfect evidence is not the right approach when we are dealing with health concerns of such proportion’ (CUMC, 2012). This position would be embraced by a broad array of minority, community-based and professional organizations in a subsequent legal brief defending New York’s initiative. Bold new policies to protect consumers had to be based, they asserted, ‘not on conclusive studies but rather on the best estimates of expert physicians and scientists’. There was no requirement that the government ‘refrain from acting until it has executed empirical studies’ (National Alliance, et al., 2013: 21, 24). For Mayor Bloomberg—who understood public health interventions, even those targeting lifestyle choices, as a protective measure owed by the State for the good of all and had never masked its paternalistic dimensions—the Board vote was a moment of triumph. ‘This is the single biggest step any city…has ever taken to curb obesity’ (Grynbaum, 2012c). In contrast, the industry-funded New Yorkers for Beverage Choices group declared, ‘By imposing this ban, the board has shown no regard for public opinion or the consequences to businesses in the city’ (Grynbaum, 2012c). The Legal Battle: Big Ideas, Narrow Rulings On 12 October 2012, the mayor’s opponents brought suit in the New York State Supreme Court. The central legal strategy of the restaurant and beverage industry echoed the claim of the City Council members that had testified against the proposal: the Board of Health (BOH) had exceeded its legitimate authority. The interests and rights of consumers had been overridden. The fundamental issue was one of democratic governance, further cementing the connection between consumer choice and democratic participation in social life as fundamental rights. ‘This case is not about obesity… . The Board of Health decision imposed by executive fiat usurps the role of the City Council, violating core principles of democratic government’ (HCC, 2012). While the plaintiffs challenged the validity of the BOH’s rulemaking, the City framed obesity as an ‘epidemic’ threat to public health, subtly invoking the logic that undergirded the long history of consumer protection from environmental threats to water, air and food that simply could not be avoided through exercise of choice. In so doing, they echoed a claim made the philosopher Robert Goodin, who had asserted in his analysis of tobacco there are some things that can never be left to either individual or collective choice: ‘We do not leave it to the discretion of consumers; however well informed whether or not to drink grossly polluted water, ingest grossly contaminated foods, or inject grossly dangerous drugs’ (Goodin, 1989: 123). His was a profoundly American accounting of paternalism that made involuntary threats as opposed to voluntary risks the focal point. The City thus made a bold claim. ‘The Board is not a typical administrative agency that adopts regulations only to implement legislative enactments. Rather it is a unique body given extraordinary authority over all matters regarding health in New York City’ (HCC, 2012: 3). In so doing, it called on the ethos of protection that the department established for itself in Progressive Era America, a transformative period in which health reforms and democratic reforms were held to be inseparable and in which health officials explicitly embraced paternalism as the animating principle of the field (Fairchild, Rosner, Colgrove, Bayer, and Fried, 2010). It was an era, further, in which the ability of some to ‘purchase health’ by paying for clean water, sewerage or uncontaminated food stuffs, leaving those without resources to suffer, increasingly violated a sense of American egalitarianism (Blackmar,1995; Kessler-Harris 2001) and what today we would call fairness or distributive justice (Kneiss, 2015; Dawson, 2016). On 11 March 2013, a Supreme Court Judge handed down a stinging rebuke to the Board of Health and the Mayor. He found the City’s bold assertion of the scope and authority of the Board of Health deeply troubling. ‘The Portion Cap Rule, if upheld, would create an administrative Leviathan… The Rule would not only violate the separation of powers doctrine, it would eviscerate it’ (HCC, 2012: 35). Furthermore, invoking the language of ‘epidemics’, as a means of spurring sweeping consumer protection, backfired. The measure did not, in fact, protect the population from the threat of all sugary beverages: some high-calorie beverages, like fruit juices and alcoholic drinks, were excluded, and the cap did not cover all commercial outlets, as the city lacked authority over sites that were regulated by NY State (such as grocery stores.) The judge, therefore, found the measure ‘arbitrary and capricious’ (HCC, 2012: 34). A consumer protection measure that failed to protect did not pass muster. In appealing to the next highest court, the Appellate Division, the Bloomberg administration hewed to its epidemic framing, arguing that sugar was less like a slow-acting toxin and more like cyanide. ‘People are dying every day’, Bloomberg said (Grynbaum, 2013). A phalanx of public health organizations, including the National Association of Boards of Health, the American Public Health Association and the National Association of County and City Health Officers, as well as leading professors of public health law filed briefs defending the embattled soda cap initiative. In an obvious challenge to the claim that the measure would hurt the interests, health and welfare of New York’s black and Hispanic communities, the National Alliance for Hispanic Health, the National Congress of Black Women, the New York Chapter of the National Association of Hispanic Nurses and the Association of Black Cardiologists urged the court to uphold the BOH determination. Leading national and local business groups filed amicus briefs before the Appellate Division, supporting the lower court’s ruling. They were joined by the New York Conference of the NAACP, which submitted a brief prepared by counsel for Coca Cola, and by 23 members of City Council, who submitted their own brief. This latter brief underscored that the Council had rejected a proposal for a tax on certain sugar-sweetened beverages, making it hard to fathom why a seemingly less effective measure that imposed a greater restriction on consumer choice would be an acceptable alternative. Rather than responding to the protective nature of the paternalistic soda cap measure, they recast it as a one extreme end of a range of options that increasingly impinge on consumer choice without benefit. This effectively undermines any individual benefit and only highlights the negative side of paternalism, and again cements the connection between consumer choice and democratic governance as an act of ‘legislative balancing’ among a range of policy choices (NYC Council Members Brief of Amici Curiae, 2013). On 30 July 2013, the BOH again faced defeat. The Appellate Division unanimously held that ‘the Board of Health overstepped the boundaries of its lawfully delegated authority’ because it ‘violated the state principle of separation of powers’ (In Re: HCC, Appellate Division, 2013). The legal arguments were well known by the time the case came before New York’s highest tribunal, the Court of Appeals. Seeking to retake control of the narrative, public health advocates stated that: ‘The petitioners in this case tell a troubling story. According to the beverage companies, the New York City Board of Health (for some reason) rubber-stamped a policy pushed by an elitist mayor, bypassing the legislative process to impose (for that same unknown reason) a draconian and random rule that (according to this story) serves no health purpose but restricts low-income residents from making choices about what they consume. The courts below heard this tale, and they ruled accordingly. But there is a problem with the story. Like many compelling tales, it is a work of fiction’ (Brief of Plaintiffs, 2014: 1). In stark contrast, the plaintiffs seized the opportunity to set their Orwellian picture of a nanny state run amuck into high relief by arguing that health officials claimed the power to ‘regulate any matter that has any effect on health. In [this] unrecognizable world local health agencies could assume control over countless lifestyle choices New Yorkers make every day, including whether and how often to watch television, exercise’ (Brief of Plaintiffs, 2014). On 26 June 2014, a divided court rendered a 4-2 decision against the City. By making complex value judgments about the relative balancing of autonomy, consumer freedom, the economic impact on beverage vendors, tax burdens on small businesses and public health without any legislative delegation or guidance, ‘the Board engaged in law making and thus infringed upon the legislative jurisdiction of the City Council’ (In Re: HCC, Appeals, 2014). Thus ended the 2-year struggle, spanning the end of the administration of Michael Bloomberg and the beginning of the mayoralty of his successor, Bill de Blasio. The former mayor simply noted, ‘Due to today’s unfortunate ruling, more people in New York City will die from obesity-related impacts’ (Mikebloomberg.com, 2014). While a setback for the public health community that had rallied to support New York City’s soda cap proposal, there were already signs that the claim for consumer protection was gaining political traction. In 2013, as noted, Mexico passed a sugary beverage tax (Rey Mallén, 2013). In November 2014, more than 75 per cent of voters passed the nation’s first sugary drink tax in Berkeley, California. In the Berkeley case, public health engaged organizations such as the NAACP, convincing them that they had to assess which parties were, in fact, limiting choice and which were seeking to empower consumers (Bottemiller Evich, 2014). The tag line of the campaign was ‘Berkeley vs. Big Soda’, which subtly captured themes of community solidarity against corporate interests and influence. This may become an easier argument to make in light of revelations about Coca-Cola’s efforts to shift attention away from calories by funding researchers willing to prioritize the importance of exercise in maintaining a healthy weight (O’Connor, 2016). Nevertheless, the extent to which the politics of narrow (those pinned exclusively to individual liberty) rather than expansive (those rooted in protection and fairness) notions of paternalism continued to cast a shadow. An indicative case is when Philadelphia, in 2016, imposed a tax on sweetened beverages; it was framed as a revenue-generating measure rather than a measure meant to curb obesity and diabetes. Indeed, Philadelphia’s health commissioner, who had been at the helm of New York’s health department during the failed soda cap effort, took the additional step of including drinks with artificial sweeteners to definitely avoid the taint of the face of paternalism that could be so easily manipulated by industry in the name of choice. Nanny State or Protector State: The Politics of Public Debate Will measures to protect population health be perceived as unnecessary intrusions of the nanny state or as reflecting the legitimate protective obligations of government? The answer to that question, as is made clear from the New York City soda cap saga, will ultimately depend on whether public health officials can effectively reshape the policy narrative. That is first and foremost a political challenge. Law and regulation have, of course, played a crucial role in helping to shift social norms bearing on the public’s health. However, such interventions face resistance, sometimes fierce, if a popular base of support has not been prepared. New York City had failed to engage effectively with the widely popular argument that a soda cap intruded on consumer choice. Indeed, early in the saga of the soda cap proposal, New York City’s Health Commissioner took for granted that ‘People will come to accept this as the new social norm’ (BOH, 2012). This made it possible for opponents of the soda cap—in the face of uncertain evidence that such a measure could have any meaningful epidemiological impact— to foreground the claim that the proposal entailed a blatant challenge to autonomous consumer choice and to democratic decision-making as contrasted to administrative rule-making. As the evidence that measures targeting sugar-sweetened beverages can, indeed, translate into population health benefits, it will become important to engage more pointedly and thoughtfully with the charge that any such measure is paternalistic. Dawson has suggested that if measures that limit individual choices are ‘the only way to secure [positive] ends for the good of the population’ they might not, in fact, be considered paternalistic at all (Dawson 2011, 5). In other words, interventions not intended for ‘your own good’, but for the common good, are perhaps not properly considered paternalistic. In the USA, eliding paternalism in that way could not prevail for historical reasons. Consumer goods like Whirlpool washers and dryers, Hoover vacuum cleaners, soda pop and cigarettes were touted, beginning in Cold War America, as both symbols of ‘the good life’ but also, importantly, as products that ‘every American worker could afford’. This freedom to purchase—this right to purchase—was what set us apart from other nations in both political rhetoric and popular social understandings. More centrally, it represented a profoundly—if troubling, given its reinforcement by mass marketing—democratic vision of inclusion. The politics of public health, then, demand an aligning of concepts with context. But this does not mean that there is no compelling counter-narrative of consumer rights that can be effectively invoked. In Berkeley, it is clear, supporters of the sugar tax were able to invoke not just the specter of an obesity epidemic, but spark the spirit of collective action that historically has been at the heart of health reform and, certainly, a consumer movement in which protection prevails and industry is made suspect, even malicious (Fairchild, Rosner, Colgrove, Bayer, Fried, 2010; Dawson 2011). This is what will be required to give the upper hand to a tradition of consumer protection in which individuals can be protected not from ‘stupid choices’ but from carefully marketed yet masked mass threats. Having failed to shape the narrative, the outcome of the New York struggle was all but ordained. The future of public health policy in combating obesity in other settings would benefit from taking important lessons about how to recapture the narrative of the market from those who manipulate images of the Nanny State run amok, depriving individuals of the right to self-determinations and the fundamental freedoms associated with market economies. Funding This work was supported by the Center for the History and Ethics of Public Health. Acknowledgements With sincere appreciation for the research assistance rendered by Lisa Kearns, MS, MA, Jenna Lillemoe, BA, Don MacLeod and Daniel Marcus-Toll, BA, and with thanks to the faculty and students in the Center for the History and Ethics of Public Health, Mailman School of Public Health, Columbia University. The authors also thank those individuals who spoke with us on background, thereby enhancing our understanding of the saga and its political dynamics. Footnotes 1. The 1906 Food, Drug, and Cosmetic Act, and the substantial revisions passed in 1938 represent this orientation toward consumer protection as freedom from risk, for example, in placing the onus of demonstrating safety on drug manufacturers before products could be placed on the market. ‘Swill milk’ presented a serious health-threat in the early twentieth century for the urban poor. 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Published by Oxford University Press. Available online at www.phe.oxfordjournals.org http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Public Health Ethics Oxford University Press

Free to Consume? Anti-Paternalism and the Politics of New York City’s Soda Cap Saga

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Oxford University Press
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© The Author 2017. Published by Oxford University Press. Available online at www.phe.oxfordjournals.org
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Abstract

Abstract In 2012, New York City Mayor Michael Bloomberg proposed capping the size of sugary beverages that could be sold in the city’s restaurants, sporting and entertainment facilities and food carts. After a lawsuit and multiple appeals, the proposal died in June 2014, deemed an unconstitutional overreach. In dissecting the saga of the proposed soda cap, we highlight both the political perils of certain anti-obesity efforts and, more broadly, the challenges to public health when issues of consumer choice and the threat of paternalism are involved. In 2016, 2 years after implementing a national tax on sugary drinks, Mexico, the nation with the highest per capita rates of soda consumption, obesity and diabetes among Organisation for Economic Co-operation and Development countries, announced a 12 per cent reduction in soft drink sales and a 4 per cent increase in water consumption (O’Connor, 2016). The public health community had been eagerly awaiting evidence on the impact of the policy, which had been strongly endorsed by medical groups and forcefully opposed by the food and beverage industry; the numbers suggested that individual behavioral change could be effected through broad social measures to improve health outcomes (O’Connor, 2016). The announcement of Mexico’s public health achievement came almost 2 years after a resounding public health defeat in the battle against sugary beverages in New York City. In June 2014, New York’s highest court sounded the death knell for Mayor Michael Bloomberg’s proposed ban on the sale of sodas larger than 16 ounces in the city’s restaurants, sporting and entertainment facilities and from its food carts. While it will be important to understand what went into the Mexican policy triumph, it is critical to examine the New York City saga of failure because of what it may tell us, not only about the political perils that anti-obesity efforts confront, but more broadly about the challenges to public health when issues of consumer choice are involved. Introduction By 2012, medical and epidemiological evidence demonstrated a clear relationship between the overconsumption of sugar-sweetened beverages and negative health impacts, including certain kinds of cancer, heart disease and obesity (Lustig et al., 2012). Anticipating that his unprecedented effort to curb obesity would spark debate about freedom of choice, Bloomberg stated, ‘You can still be obese. We’re not keeping you from eating fattening foods or drinking 32-ounce bottles of full-sugar drinks…. We are just telling you that this is detrimental to your health and making you understand that’ (Geller, 2012). According to a 2012 mayoral task force report, average drink sizes had risen 457 per cent since 1955, from 7 to 32 fluid ounces. These oversized drinks led to unconscious consumption of excess calories, which, especially in conjunction with a sedentary lifestyle, is a well-established key contributing factor to obesity and obesity-related diseases. Therefore, the task force saw ‘setting a maximum size for sugary drinks…[a]s a way we change the default and help reacquaint New Yorkers with “human size” portions to reduce excessive consumption of sugary drinks’ (The New York City Obesity Task Force, 2012). The mayor’s proposed ‘cap’ on the size of sugar-sweetened beverages sparked a bitter dispute about the legitimate scope of regulations designed to advance population health and provide consumer protection. Five interrelated questions informed the public debate: Did the proposed policy divert attention from the broader social factors that contributed to obesity? Was there evidence that the proposed policy would reduce caloric intake at a population level, particularly among those at highest risk of obesity? If there was a public health benefit, did it justify the intrusion on liberty? Would the proposed regulation unfairly burden small or minority-owned commercial establishments? Did the Board of Health overreach in adopting the limit on soda portion size, usurping the authority of the democratically elected City Council? Different interpretations and uses of consumer rights and the role of the market in ensuring social inclusion shaped the debate, raising concerns about autonomy and paternalism. Public health advocates sought to make the case that consumer protection from a pervasive commercial toxin that created profound health disparities was at stake, similar to the case made for regulating alcohol (Lustig et al, 2012). Paternalistic measures, even if not so denominated, were crucial to ensuring informed choice and achieving the protection of the collective good, hence use of the term ‘soda cap’ to describe the public health measure. The beverage industry, on the other hand, decrying the misleadingly labeled ‘soda ban’, underscored familiar talking points: working class, blue-collar interests in consumer choice; threats posed by paternalistic measures framed as autocratic encroachments on the central American value of autonomy; and the illegitimacy of bureaucratic determinations that disregarded the will of the people. Public health advocates dismissed those arguments as evidence of corporate manipulation, failing to appreciate that arguments about consumer choice have complex historical meanings involving deeply rooted notions of egalitarianism, democracy and ‘everyday citizenship’ (Fairchild, 2006). The history of the soda cap measure, then, is not just a story of the triumph of business interests, but one of public health’s failure to effectively shape a narrative—to set into bold relief the positive side of paternalism—that portrayed the soda cap proposal as the legitimate embodiment of the legacy of consumer protection against toxic threats. History and the Politics of Framing: Protection versus Information The groundwork for the battle over the meaning of consumer rights in regard to soda was laid from 2008 to 2010, when both New York City and State tried, but failed, to apply one of the chief strategies that had worked to curb smoking rates: heavy taxes. In late 2008 Governor David Paterson proposed an 18 per cent sales tax on non-diet sodas and fruit drinks containing less than 70 per cent fruit juice as a public health measure (Chan, 2008a). The American Beverage Association (ABA) denounced the proposal as ‘a money grab’, while supporters hailed it as akin to the cigarette tax in its potential to reduce the sales of products linked to obesity-related adverse health outcomes (Chan, 2008a; Kristof, 2008). A December 2008 poll conducted by Quinnipiac University found that 60 per cent of New York State voters opposed the so-called obesity tax, with opposition spanning political party lines (Chan, 2008b). The tax effort failed again in 2010. Given the repeated failures to impose taxes on sodas, Bloomberg sought alternative policies, embracing, in 2012, the idea of a soda cap. The Editorial Board of the New York Times, in opposing Bloomberg’s proposal, implicitly drew on the founding history of consumer rights protection. Laws prohibiting the sale of ‘swill milk’, contaminated meat or adulterated drugs stand as landmarks in the history of consumer protection. This tradition of protection was grounded in the logic that freedom from risk was essential when it came to such basic necessities: it was not enough to warn when food, water or medications might be unsafe.1 For the Times, Bloomberg’s ban on trans fats (based on self-regarding harms of which individuals were ignorant) and on smoking in bars and restaurants (based on the harm it posed to bystanders) fell comfortably into this tradition. As leisure-related products began to define American consumer society after the 1920s, making information available to consumers emerged as a second important tradition when it came to known ‘voluntary’ health risks (Brandt, 2007). The requirement that chain restaurants post calorie counts was, for the Times, a prime, acceptable example of this second regulatory approach. This, argued the editorial board, was also the approach that was needed for overconsumption of soda. The City’s ‘tough anti-obesity advertising campaigns’, focused on sugary drinks, provided the model to follow (Editorial Board, 2012). In part, the debate that unfolded mirrored the two faces of the consumer protection model: prohibition versus information and education. Epidemiologists and academic leaders, American entertainment celebrities and prominent political leaders including former President Bill Clinton supported the City in arguing that it was essential to curb commercial practices and products that created a toxic environment. For example, food critic Mark Bittman (2012) wrote: ‘What we need is the equivalent of a dietary seat belt’. While acknowledging concerns about the ‘slippery slope’, Bittman’s Times colleague Frank Bruni concluded, ‘We have a long way to slide before there’s a cause for alarm commensurate with the urgency of the problem [Bloomberg is] trying to whittle away at’ (Bruni, 2012). The central strategy of opponents was giving paternalism a decidedly negative spin, framing the proposed policy as baldly paternalistic, an unjustifiable intrusion on consumer choice. The American Beverage Association, which led the battle against soda taxes, portrayed itself as liberty’s champion. A small plane flying over the city pulled a banner that warned, ‘NO DRINK 4 U!’ (Grynbaum, 2012a). Soda delivery trucks bearing the silhouette of a muscular man holding aloft a supersized soda—evoking the Statute of Liberty—advised, ‘Don’t let bureaucrats tell you what size beverage to buy’. The artistic politics evoked not only labor posters with their working-class demands for social justice but also the Civil Rights era iconography of the raised fist with its call to resist the oppressive state (Today in Labor History, 2015). A New York Restaurant Association spokesperson invoked imagery of a slippery slope, warning an ethnically diverse city: ‘They could take away our hot dogs. They could take away our steaks, our calzones!’ (Grynbaum, 2012b). The restaurant and food industry funded Center for Consumer Freedom added pizza and corned beef sandwiches to the list of working-class favorites in jeopardy (The Center for Consumer Freedom, 2011). Building on the groundwork laid by the Center for Consumer Freedom’s earlier ‘You Are Too Stupid’ campaign against the city’s trans fat ban, City Council members, union workers and industry lobbyists rallied at theaters carrying signs reading, ‘I can make my beverage choice myself’ (Ovadia, 2012). If limiting the size of sodas was a paternalistic attack on consumer choice, opponents pitched educating and informing potential consumers as the better public health approach. A New York state movie theatre industry lobbyist was quoted as saying that while obesity was an epidemic, it was one that ‘should be handled through education’ (Grynbaum, 2012a). Likewise, a leading member of the City’s highest legislative body, who represented districts with high concentrations of Blacks and Latinos, argued, ‘the city would be better off renovating parks and playgrounds and emphasizing physical education in schools rather than going after a specific product’ (Grynbaum, 2012b). Like others, she shrewdly adopted the reformist language conventionally employed in public health, stressing the broad social causes of chronic disease and emphasizing the ultimate futility of narrowly targeted interventions (DOHMH, 2012). Key to the ultimately effective political strategy of the ABA was the creation of New Yorkers for Beverage Choices, a coalition of small grocery stores, movie theater owners and unions. In addition to calling persuasively on the second tradition of consumer rights that required informing without limiting choice, the beverage industry sought to capitalize on the potential impact of the proposed rule on minority-owned businesses. The US Hispanic Chamber of Commerce argued, ‘There are 143,000 Hispanic-owned businesses in New York City…Many of these small businesses rely on soda as a main revenue generator…[The proposed policy] will make it increasingly difficult for these businesses to continue to operate’ (Palomarez, 2012). The Korean–American Grocery Association, the National Restaurant Association and the National Association of Theater Owners warned that the cap would harm commercial interests, small business in particular (DOHMH, 2012). The Teamsters Union talked about the impact on blue-collar workers employed in the beverage industry: ‘The city should think about the impact [the ban] will have on hard working New York City residents that are employed in this great industry and, by the way, pay taxes’ (DOHMH, 2012: 107). The New York State Conference of the National Association for the Advancement of Colored People (a legal organization) (NAACP)—a long-established leader in the Black Civil Rights movement—denounced the proposal, its president declaring, ‘Bloomberg’s ban attacks the little guy while giving a pass to big corporations’ (Williams, 2013). Some 60,000 people signed a petition opposing limits on the freedom to consume (Bhasin, 2012). Thus, the winning narrative was not just one that attacked big government telling citizens, broadly speaking, what to do, but one in which the government was telling the ‘regular Joe’—the blue-collar worker—what to do and, in the process, killing the American dream by harming the small and minority business owner. To be sure, there is a serious body of scholarship that understands such framing as part and parcel of a long history of manipulating desire (Somers, 2008: 2, 4). Despite this, it is important not to dismiss the fact that consumption and consumer choice in the USA have been linked to inclusion and market membership in popular discourse, making paternalistic measures particularly hard to swallow. The Debate Articulated and (Initially) Resolved The stage was thus set for the New York Board of Health hearing on 24 July 2012, where 50 people spoke for and against the soda cap proposal. Proponents typically tried to avoid the traditional protection versus information dichotomy, instead framing the proposal as no more than a ‘nudge’,—a libertarian paternalism perspective made popular by Richard Thaler and Cass Sunstein that preserved choice (2008). The Public Health Association of New York City testified, ‘We believe in the public’s right to choose the food and drinks they consume. However, we should make healthy choices easier…. [R]outine choice, whenever possible, should be a healthy one’ (DOHMH, 2012: 146). Social justice provided a moral foundation for the soda cap proposal. Advocates underscored the burden of obesity and its associated maladies as socially constructed, thus demanding corrective intervention in the name of fairness. The Community Service Society—a long-established social welfare organization and advocacy group—asserted that obesity was ‘a direct attack on New York’s Black and Brown community and poor communities and it particularly rips through our adolescents who are already facing discrimination, poverty, [and] lack of education’ (DOHMH, 2012: 39–40). The Brooklyn Ecumenical Advisory Group, a religious NGO, directly challenged those asserting that the proposed policy would unfairly stigmatize the poor. ‘In fact’, they said, implicitly invoking the protective state, ‘it will ease the unfair burden on the poor of being the victims of an industry in which profit trumps good health’ (DOHMH, 2012: 55). This strong moral position was, proponents argued, backed by the certainty surrounding the scientific evidence. ‘Larger portions lead to overconsumption’, said Yale University’s Dr Kelly Brownell. To underscore the gravity of the situation he asserted that sodas ‘were the single greatest source of added sugar in the American diet’ (DOHMH, 2012: 35). Despite the near unanimity of the New York City Board of Health vote—eight voted in favor and only one abstained—some who voted ‘yes’ expressed doubt about how effective the measure would be. One physician, for example, acknowledged, ‘We don’t have… large-scale studies showing that this kind of policy change will have an impact on obesity or incidence of diabetes, because such a policy has never been implemented’. But, he reasoned, ‘Waiting for perfect evidence is not the right approach when we are dealing with health concerns of such proportion’ (CUMC, 2012). This position would be embraced by a broad array of minority, community-based and professional organizations in a subsequent legal brief defending New York’s initiative. Bold new policies to protect consumers had to be based, they asserted, ‘not on conclusive studies but rather on the best estimates of expert physicians and scientists’. There was no requirement that the government ‘refrain from acting until it has executed empirical studies’ (National Alliance, et al., 2013: 21, 24). For Mayor Bloomberg—who understood public health interventions, even those targeting lifestyle choices, as a protective measure owed by the State for the good of all and had never masked its paternalistic dimensions—the Board vote was a moment of triumph. ‘This is the single biggest step any city…has ever taken to curb obesity’ (Grynbaum, 2012c). In contrast, the industry-funded New Yorkers for Beverage Choices group declared, ‘By imposing this ban, the board has shown no regard for public opinion or the consequences to businesses in the city’ (Grynbaum, 2012c). The Legal Battle: Big Ideas, Narrow Rulings On 12 October 2012, the mayor’s opponents brought suit in the New York State Supreme Court. The central legal strategy of the restaurant and beverage industry echoed the claim of the City Council members that had testified against the proposal: the Board of Health (BOH) had exceeded its legitimate authority. The interests and rights of consumers had been overridden. The fundamental issue was one of democratic governance, further cementing the connection between consumer choice and democratic participation in social life as fundamental rights. ‘This case is not about obesity… . The Board of Health decision imposed by executive fiat usurps the role of the City Council, violating core principles of democratic government’ (HCC, 2012). While the plaintiffs challenged the validity of the BOH’s rulemaking, the City framed obesity as an ‘epidemic’ threat to public health, subtly invoking the logic that undergirded the long history of consumer protection from environmental threats to water, air and food that simply could not be avoided through exercise of choice. In so doing, they echoed a claim made the philosopher Robert Goodin, who had asserted in his analysis of tobacco there are some things that can never be left to either individual or collective choice: ‘We do not leave it to the discretion of consumers; however well informed whether or not to drink grossly polluted water, ingest grossly contaminated foods, or inject grossly dangerous drugs’ (Goodin, 1989: 123). His was a profoundly American accounting of paternalism that made involuntary threats as opposed to voluntary risks the focal point. The City thus made a bold claim. ‘The Board is not a typical administrative agency that adopts regulations only to implement legislative enactments. Rather it is a unique body given extraordinary authority over all matters regarding health in New York City’ (HCC, 2012: 3). In so doing, it called on the ethos of protection that the department established for itself in Progressive Era America, a transformative period in which health reforms and democratic reforms were held to be inseparable and in which health officials explicitly embraced paternalism as the animating principle of the field (Fairchild, Rosner, Colgrove, Bayer, and Fried, 2010). It was an era, further, in which the ability of some to ‘purchase health’ by paying for clean water, sewerage or uncontaminated food stuffs, leaving those without resources to suffer, increasingly violated a sense of American egalitarianism (Blackmar,1995; Kessler-Harris 2001) and what today we would call fairness or distributive justice (Kneiss, 2015; Dawson, 2016). On 11 March 2013, a Supreme Court Judge handed down a stinging rebuke to the Board of Health and the Mayor. He found the City’s bold assertion of the scope and authority of the Board of Health deeply troubling. ‘The Portion Cap Rule, if upheld, would create an administrative Leviathan… The Rule would not only violate the separation of powers doctrine, it would eviscerate it’ (HCC, 2012: 35). Furthermore, invoking the language of ‘epidemics’, as a means of spurring sweeping consumer protection, backfired. The measure did not, in fact, protect the population from the threat of all sugary beverages: some high-calorie beverages, like fruit juices and alcoholic drinks, were excluded, and the cap did not cover all commercial outlets, as the city lacked authority over sites that were regulated by NY State (such as grocery stores.) The judge, therefore, found the measure ‘arbitrary and capricious’ (HCC, 2012: 34). A consumer protection measure that failed to protect did not pass muster. In appealing to the next highest court, the Appellate Division, the Bloomberg administration hewed to its epidemic framing, arguing that sugar was less like a slow-acting toxin and more like cyanide. ‘People are dying every day’, Bloomberg said (Grynbaum, 2013). A phalanx of public health organizations, including the National Association of Boards of Health, the American Public Health Association and the National Association of County and City Health Officers, as well as leading professors of public health law filed briefs defending the embattled soda cap initiative. In an obvious challenge to the claim that the measure would hurt the interests, health and welfare of New York’s black and Hispanic communities, the National Alliance for Hispanic Health, the National Congress of Black Women, the New York Chapter of the National Association of Hispanic Nurses and the Association of Black Cardiologists urged the court to uphold the BOH determination. Leading national and local business groups filed amicus briefs before the Appellate Division, supporting the lower court’s ruling. They were joined by the New York Conference of the NAACP, which submitted a brief prepared by counsel for Coca Cola, and by 23 members of City Council, who submitted their own brief. This latter brief underscored that the Council had rejected a proposal for a tax on certain sugar-sweetened beverages, making it hard to fathom why a seemingly less effective measure that imposed a greater restriction on consumer choice would be an acceptable alternative. Rather than responding to the protective nature of the paternalistic soda cap measure, they recast it as a one extreme end of a range of options that increasingly impinge on consumer choice without benefit. This effectively undermines any individual benefit and only highlights the negative side of paternalism, and again cements the connection between consumer choice and democratic governance as an act of ‘legislative balancing’ among a range of policy choices (NYC Council Members Brief of Amici Curiae, 2013). On 30 July 2013, the BOH again faced defeat. The Appellate Division unanimously held that ‘the Board of Health overstepped the boundaries of its lawfully delegated authority’ because it ‘violated the state principle of separation of powers’ (In Re: HCC, Appellate Division, 2013). The legal arguments were well known by the time the case came before New York’s highest tribunal, the Court of Appeals. Seeking to retake control of the narrative, public health advocates stated that: ‘The petitioners in this case tell a troubling story. According to the beverage companies, the New York City Board of Health (for some reason) rubber-stamped a policy pushed by an elitist mayor, bypassing the legislative process to impose (for that same unknown reason) a draconian and random rule that (according to this story) serves no health purpose but restricts low-income residents from making choices about what they consume. The courts below heard this tale, and they ruled accordingly. But there is a problem with the story. Like many compelling tales, it is a work of fiction’ (Brief of Plaintiffs, 2014: 1). In stark contrast, the plaintiffs seized the opportunity to set their Orwellian picture of a nanny state run amuck into high relief by arguing that health officials claimed the power to ‘regulate any matter that has any effect on health. In [this] unrecognizable world local health agencies could assume control over countless lifestyle choices New Yorkers make every day, including whether and how often to watch television, exercise’ (Brief of Plaintiffs, 2014). On 26 June 2014, a divided court rendered a 4-2 decision against the City. By making complex value judgments about the relative balancing of autonomy, consumer freedom, the economic impact on beverage vendors, tax burdens on small businesses and public health without any legislative delegation or guidance, ‘the Board engaged in law making and thus infringed upon the legislative jurisdiction of the City Council’ (In Re: HCC, Appeals, 2014). Thus ended the 2-year struggle, spanning the end of the administration of Michael Bloomberg and the beginning of the mayoralty of his successor, Bill de Blasio. The former mayor simply noted, ‘Due to today’s unfortunate ruling, more people in New York City will die from obesity-related impacts’ (Mikebloomberg.com, 2014). While a setback for the public health community that had rallied to support New York City’s soda cap proposal, there were already signs that the claim for consumer protection was gaining political traction. In 2013, as noted, Mexico passed a sugary beverage tax (Rey Mallén, 2013). In November 2014, more than 75 per cent of voters passed the nation’s first sugary drink tax in Berkeley, California. In the Berkeley case, public health engaged organizations such as the NAACP, convincing them that they had to assess which parties were, in fact, limiting choice and which were seeking to empower consumers (Bottemiller Evich, 2014). The tag line of the campaign was ‘Berkeley vs. Big Soda’, which subtly captured themes of community solidarity against corporate interests and influence. This may become an easier argument to make in light of revelations about Coca-Cola’s efforts to shift attention away from calories by funding researchers willing to prioritize the importance of exercise in maintaining a healthy weight (O’Connor, 2016). Nevertheless, the extent to which the politics of narrow (those pinned exclusively to individual liberty) rather than expansive (those rooted in protection and fairness) notions of paternalism continued to cast a shadow. An indicative case is when Philadelphia, in 2016, imposed a tax on sweetened beverages; it was framed as a revenue-generating measure rather than a measure meant to curb obesity and diabetes. Indeed, Philadelphia’s health commissioner, who had been at the helm of New York’s health department during the failed soda cap effort, took the additional step of including drinks with artificial sweeteners to definitely avoid the taint of the face of paternalism that could be so easily manipulated by industry in the name of choice. Nanny State or Protector State: The Politics of Public Debate Will measures to protect population health be perceived as unnecessary intrusions of the nanny state or as reflecting the legitimate protective obligations of government? The answer to that question, as is made clear from the New York City soda cap saga, will ultimately depend on whether public health officials can effectively reshape the policy narrative. That is first and foremost a political challenge. Law and regulation have, of course, played a crucial role in helping to shift social norms bearing on the public’s health. However, such interventions face resistance, sometimes fierce, if a popular base of support has not been prepared. New York City had failed to engage effectively with the widely popular argument that a soda cap intruded on consumer choice. Indeed, early in the saga of the soda cap proposal, New York City’s Health Commissioner took for granted that ‘People will come to accept this as the new social norm’ (BOH, 2012). This made it possible for opponents of the soda cap—in the face of uncertain evidence that such a measure could have any meaningful epidemiological impact— to foreground the claim that the proposal entailed a blatant challenge to autonomous consumer choice and to democratic decision-making as contrasted to administrative rule-making. As the evidence that measures targeting sugar-sweetened beverages can, indeed, translate into population health benefits, it will become important to engage more pointedly and thoughtfully with the charge that any such measure is paternalistic. Dawson has suggested that if measures that limit individual choices are ‘the only way to secure [positive] ends for the good of the population’ they might not, in fact, be considered paternalistic at all (Dawson 2011, 5). In other words, interventions not intended for ‘your own good’, but for the common good, are perhaps not properly considered paternalistic. In the USA, eliding paternalism in that way could not prevail for historical reasons. Consumer goods like Whirlpool washers and dryers, Hoover vacuum cleaners, soda pop and cigarettes were touted, beginning in Cold War America, as both symbols of ‘the good life’ but also, importantly, as products that ‘every American worker could afford’. This freedom to purchase—this right to purchase—was what set us apart from other nations in both political rhetoric and popular social understandings. More centrally, it represented a profoundly—if troubling, given its reinforcement by mass marketing—democratic vision of inclusion. The politics of public health, then, demand an aligning of concepts with context. But this does not mean that there is no compelling counter-narrative of consumer rights that can be effectively invoked. In Berkeley, it is clear, supporters of the sugar tax were able to invoke not just the specter of an obesity epidemic, but spark the spirit of collective action that historically has been at the heart of health reform and, certainly, a consumer movement in which protection prevails and industry is made suspect, even malicious (Fairchild, Rosner, Colgrove, Bayer, Fried, 2010; Dawson 2011). This is what will be required to give the upper hand to a tradition of consumer protection in which individuals can be protected not from ‘stupid choices’ but from carefully marketed yet masked mass threats. Having failed to shape the narrative, the outcome of the New York struggle was all but ordained. The future of public health policy in combating obesity in other settings would benefit from taking important lessons about how to recapture the narrative of the market from those who manipulate images of the Nanny State run amok, depriving individuals of the right to self-determinations and the fundamental freedoms associated with market economies. Funding This work was supported by the Center for the History and Ethics of Public Health. Acknowledgements With sincere appreciation for the research assistance rendered by Lisa Kearns, MS, MA, Jenna Lillemoe, BA, Don MacLeod and Daniel Marcus-Toll, BA, and with thanks to the faculty and students in the Center for the History and Ethics of Public Health, Mailman School of Public Health, Columbia University. The authors also thank those individuals who spoke with us on background, thereby enhancing our understanding of the saga and its political dynamics. Footnotes 1. The 1906 Food, Drug, and Cosmetic Act, and the substantial revisions passed in 1938 represent this orientation toward consumer protection as freedom from risk, for example, in placing the onus of demonstrating safety on drug manufacturers before products could be placed on the market. ‘Swill milk’ presented a serious health-threat in the early twentieth century for the urban poor. 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Published by Oxford University Press. Available online at www.phe.oxfordjournals.org

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Public Health Ethics – Oxford University Press

Published: Apr 1, 2018

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