Document Type

Article

Publication Date

2005

Abstract

The author argues that we ought to treat our eating, exercise habits, and girth as personal matters, for the most part, but that law can and should make a contribution, as an ally of our longer-term will against our immediate cravings. Law can be our ally in this fashion without command-and-control intrusion into our private lives. Such intrusion is at odds with our core beliefs and unlikely to produce public health success. It is more likely to provoke popular backlash--one reason why some who stand to gain from our unhealthy dining choices try to cast government efforts to inform these choices as heavyhanded interference in our lives. Public policy and law should support our beleaguered self-restraint in the face of potent social cues and pressured life circumstances that make us more responsive to our short-term, unreflective intentions. Policymakers should also look for opportunities to set our cravings against each other. From a public health perspective, for example, safe sex is better than reckless eating. To the extent that erotic feelings suppress snacking or inspires regular exercise, they are a potential ally in campaigns against overeating. Through such strategies, the state can promote health without eroding its citizens' sense of freedom in the private sphere.

The author proceeds as follows. First, he disentangles the debates over: (1) the causes of obesity (and overweight) and (2) the reasons for its recent, rapid increase in incidence. A health problem's underlying causal mechanisms are typically distinct from the reasons for the problem's epidemic surge. But in the case of obesity, these two issues are often conflated. Commentators opposed to state intervention tend to argue that various proposed causal mechanisms cannot explain obesity's epidemic surge and therefore should not become foci of government action. Proponents of robust public intervention tend to point to a broad array of causal mechanisms, citing each as justification for action. Both approaches are misguided. The question of what might work as a remedy, in terms of both efficacy and consonance with our cultural and legal values, is distinct from the question of cause. Not all causes imply viable remedies. And, conversely, effective remedies (be they clinical or legal) need not operate via the causal pathways that explain obesity's epidemic surge.

Second, he considers the varied causal accounts with an eye toward remedies that might yield health benefits (at reasonable cost) and fit with enduring American legal and cultural norms. The author rejects "black box" accounts of personal choice that treat consumers' current eating habits as sovereign expressions of preference. But he eschews government measures that would override people's expressed preferences and thus be experienced by Americans as oppressive. Instead, he urges efforts to encourage healthier eating and exercise choices by better informing consumers and sharpening their awareness of risks and benefits. Public health activism along these lines can succeed by forging alliances with our longer-term selves against our immediate cravings. It will fail (and bring about a backlash) if it is widely seen as an attempt to foreclose dietary choices that large numbers of Americans continue to make.

Publication Citation

93 Geo. L.J. 1335-1359 (2005)