Kelly Brownell won't talk to me. I can't say I'm surprised. He's miffed that I called attention to his weight at the beginning of a column I wrote last year after attending a conference on obesity at the American Enterprise Institute (AEI). It was an easy shot, I admit. But was it simply a "personal attack," as he complained in an e-mail message after I requested an interview for this article?
Surely it would be legitimate to point out that an anti-tobacco activist was a chain smoker, that an opponent of legalized gambling liked to play the slots, or that an anti-porn crusader was fond of dirty movies. So when a leader of the burgeoning war on fat, a Twinkie tax advocate who never tires of comparing Ronald McDonald to Joe Camel, turns up sporting an extra chin and an ample gut, noting those facts should not be considered out of bounds. And if Brownell does not like it when someone suggests he could stand to lose a few pounds, perhaps he should think twice about enlisting the government in his campaign to slim down millions of his fellow Americans. He would be on much firmer ground in objecting when people note that he's fat if he were consistent in treating weight as a private matter.
Then again, Brownell's portliness—which he attributes to inactivity and overeating while he was working on his recent book about the "human crisis" created by inactivity and overeating—could be viewed as Exhibit A in his case against the "toxic food environment." Here we have a professor of psychology at Yale, an expert on weight control frequently consulted by the press and invited to appear on television, who is reduced to using an old photo of his formerly thin self on the jacket of Food Fight: The Inside Story of the Food Industry, America's Obesity Crisis, and What We Can Do About It (McGraw-Hill). Worse, Brownell directs the Yale Center for Eating and Weight Disorders, which offers counseling to people desperate to lose weight. If anyone has an incentive to stay slim, you might think, he does.
In a sense, then, Brownell's paunch reinforces his argument that Americans have little real choice about what we eat, that we are prisoners of an environment in which food is too cheap, too tasty, and too convenient. Combine these ever-present temptations with meager opportunities for exercise, and you get the "epidemic" that Brownell and his allies decry: The federal government's survey data indicate that two-thirds of American adults are overweight, up from a quarter in the late 1970s. The overweight category includes the obese, who represented more than 20 percent of adults in 2001, compared to 12 percent a decade earlier. (These categories are defined by body mass index, which is weight in kilograms divided by the square of height in meters. If your BMI is 25 or more you're "overweight," and once your BMI hits 30 you're "obese.") Medical conditions associated with obesity include arthritis, gout, sleep apnea, diabetes, high blood pressure, heart disease, stroke, and various cancers. A recent analysis by researchers at the U.S. Centers for Disease Control and Prevention (CDC) attributed 400,000 deaths a year in this country to "poor diet and physical inactivity." When the study was published in March, Secretary of Health and Human Services Tommy Thompson emphasized that "poor eating habits and inactivity are on the verge of surpassing tobacco use as the leading cause of preventable death in America." Last year Surgeon General Richard Carmona declared: "I refuse to accept the spread of obesity…I am committed to advancing the prevention agenda…It will take all of us working together to find the solution to this growing problem."
One can argue about the magnitude of the problem that worries Thompson and Carmona. The 400,000 estimate—which covers all diseases related to diet and inactivity, not just those stemming from excess weight per se—is based on risk increases inferred from associations found in epidemiological studies. As a 1998 editorial in The New England Journal of Medicine noted regarding an earlier version of this calculation, "that figure is by no means well established. Not only is it derived from weak or incomplete data, but it is also called into question by the methodologic difficulties of determining which of many factors contribute to premature death." In any case, such death tolls obscure the risks faced by someone who is trying to decide whether the benefits of losing weight are worth the costs in terms of effort and forgone pleasure.
Two studies published in January 2003 give a clearer sense of the dangers associated with excess weight. One, reported in The Journal of the American Medical Association, found that white men in their 20s with BMIs of 45 or more (e.g., a man who is five feet, nine inches tall and weighs at least 305 pounds) live, on average, about 13 fewer years than men who are not overweight; the comparable figure for white women was eight years. By contrast, the merely overweight (with BMIs between 25 and 30) "lost" only a year or so. The other study, reported in the Annals of Internal Medicine, looked at life expectancy for 40-year-olds enrolled in the Framingham Heart Study. Among nonsmokers, it found, overweight men and women could expect to live about three fewer years than subjects who were not overweight. For obese 40-year-olds, the "years lost" rose to six for men and seven for women—similar to the loss of life expectancy associated with cigarette smoking.
The health effects of extra pounds can be difficult to isolate, especially since overweight people tend to be sedentary and to eat poor diets. Although thin people who exercise seem to be the healthiest group, overweight people who are physically active are healthier than thin people who are not. Without plunging into the "fit vs. fat" debate, suffice it to say that what you eat and how much you exercise clearly have implications for your health and longevity. Even if they don't account for as many fatal illnesses as the CDC's estimate suggests, they do make a substantial contribution to disability and mortality.
The more important question is why any of this is the government's business. Granted that obesity is a health issue, why is it a public health issue? The answer from Brownell and like-minded activists is that the government must rescue consumers—especially children—from the environmental forces that make them fat, thereby rescuing taxpayers from the burden of obesity-related medical expenses. They propose to accomplish this mission through a combination of taxes, subsidies, censorship, and regulation. In his book Food Fight (co-authored by Katherine Battle Horgen), Brownell says "profound change is necessary." Among other things, the government must "change the basic economics of food," redesign cities so that "times, places, and incentives for people to be physically active [are] engineered into daily life," "prohibit marketing of products to children," "prohibit snack foods and soft drinks from schools," and "prohibit the operation of businesses selling food within a certain distance of schools." If legislatures fail to go along with this agenda, "litigation may be necessary."
The war on fat is the latest manifestation of a collectivist philosophy that says the government has a duty to protect "public health" by discouraging behavior that might lead to disease or injury. It also reflects an anti-capitalist perspective that views people as helpless automatons manipulated into consuming whatever big corporations choose to produce. The anti-fat crusaders want to manipulate us too, but for our own good. They seek to reshape us by reshaping the world.
Before you dismiss this agenda as the pie-in-the-sky wish list of wannabe social engineers, consider the trajectory of the Twinkie tax, which has gone from reductio ad absurdum to serious policy proposal in just a few years. In a June 1994 newspaper ad that criticized proposals to sharply raise tobacco taxes, R.J. Reynolds said: "Today it's cigarettes. Will high-fat foods be next?" Anti-smoking activists traditionally responded to this sort of slippery-slope argument by insisting that cigarettes were unique, "the only legal product that when used as intended causes death." To suggest that anti-smoking measures might pave the way for attacks on cheeseburgers and ice cream, they said, was just silly.
Yet six months after R.J. Reynolds tried to scare people with the outlandish prospect of a tax on fatty foods, Brownell endorsed the idea on the op-ed page of The New York Times, citing the precedent set by cigarette taxes. He said "taxing foods with little nutritional value" would deter consumption and help raise money for bike paths, running tracks, and nutrition education. "Fatty foods would be judged on their nutritive value per calorie or gram of fat," he explained. "The least healthy would be given the highest tax rate."
Brownell was serious, and pretty soon people started to take him seriously. At the end of 1997, U.S. News & World Report picked what it dubbed the "Twinkie tax" as one of "16 Silver Bullets: Smart Ideas to Fix the World." The following year, The New Republic's Hanna Rosin chided "alarmist" commentators who had criticized the notion of using taxes to encourage better eating habits. Aside from Brownell and a couple of other academics, she said, very few people were voicing support for the idea. One of them, it turned out, was Hanna Rosin. "It's too bad Brownell isn't more popular," she wrote.
By last year, TV commentator Morton Kondracke, the very embodiment of inside-the-Beltway centrism, was opining in his syndicated column that "a hefty tax based on the fat and sugar content of foods would discourage consumption, provide revenue for education programs…and recover some of the billions that obesity-related illnesses cost the government in Medicare and Medicaid outlays." He presented the idea as a sensible, moderate alternative to "allowing trial lawyers to get rich suing McDonald's, Wendy's, and Burger King."
Such endorsements may not constitute a stampede, but U.S. News, The New Republic, and Morton Kondracke are good barometers of what's considered part of mainstream political debate. It seems the Twinkie tax qualifies.
So far legislative proposals to implement the idea, including bills in New York and California, have not gone anywhere. But in his book Brownell plausibly argues that modest junk food taxes aimed more at revenue raising than behavior modification have a good chance of passing. Although Brownell wants the money earmarked for anti-obesity efforts, it's not hard to imagine a legislature welcoming this new source of revenue as a way to avoid spending cuts. "Small taxes with earmarked money…may be the way to begin," Brownell and co-author Horgen write. "This would introduce the concept to the public, and if the earmark programs were successful, higher taxes might be acceptable at a later time."
Ultimately, Brownell wants to combine the taxes with subsidies for fruits, vegetables, and other foods deemed healthy, achieving centrally planned prices designed to minimize weight, maximize nutritional value, and "thereby improve public health." Given that Brownell is undaunted by the complexity of this task, perhaps it's not surprising that he does not bother to make a persuasive case that price is an important barrier to healthier eating. Potato chips are cheap, it's true, but so are most fruits and vegetables. At my local Giant supermarket, green beans, apples, kale, and fresh carrots cost $1.99, $1.49, 99 cents, and 89 cents a pound, respectively. A 20-ounce bag of Utz potato chips goes for $4.19, or $3.35 a pound.
Anti-fat activists do not let such mundane facts obstruct their vision of food prices perfectly geared toward health improvement. In her 2002 book Food Politics, New York University nutritionist Marion Nestle, who agrees with Brownell that the government should be doing much more to fight obesity, notes that "it is not difficult to select a health-promoting diet…at quite low cost." Yet 24 pages later, she suggests that "the prices of fruits and vegetables…could be subsidized to compensate in part for the low economic added value of these foods—just as is already done through price supports for dairy foods and sugar." Price supports, of course, make prices higher, not lower, but you get the idea.
If economics is not the forte of Brownell and his allies, neither is constitutional law. To combat ads for fast food and sugary treats, Brownell and Horgen want to revive the "fairness doctrine," under which the Federal Communications Commission required broadcasters to provide time for opposing views when they covered controversial topics. The FCC abandoned the policy in 1987 after concluding that it had a chilling effect on speech, encouraging TV and radio stations to steer clear of controversy. Brownell and Horgen not only ignore that concern but propose "requiring advertisements for healthy foods or spots discouraging consumption of unhealthy foods" in every medium, even though the original fairness doctrine hinged on the special status of broadcasters as custodians of "the public airwaves." The U.S. Supreme Court has explicitly rejected a broader "right of reply" as inconsistent with the First Amendment.
Nestle likewise suggests an "equal time" requirement for "eat less, move more" messages, but she and Brownell both would prefer a complete ban on advertising aimed at children, for any product (not just food) in any medium. While Brownell does not even acknowledge that such a ban would raise First Amendment issues, Nestle tells me, "It's very hard for me to believe that the Founding Fathers intended the First Amendment to apply to commercial speech." (By contrast, presumably, they did intend the Constitution to authorize a federal war on obesity.)
Aside from a narrow view of the First Amendment—which, after all, says nothing about a distinction between "commercial" and "noncommercial" speech—this enthusiasm for banning ads reflects the complaint that companies foist their products on an unwilling yet malleable populace. By Nestle's account, "The overly abundant food supply, combined with a society so affluent that most people can afford to buy more food than they need, sets the stage for competition. The food industry must compete fiercely for every dollar spent on food, and food companies spend extraordinary resources to develop and market products that will sell, regardless of their effect on nutritional status or waistlines. To satisfy stockholders, food companies must convince people to eat more of their products or to eat their products instead of those of competitors."
Nestle thus treats "the overly abundant food supply" as a pre-existing fact, arbitrarily determined by "the food industry" without regard to demand. "Whether consumer demands drive food sales or the industry creates such demands is a matter of debate," she writes, "but much industry effort goes into trying to figure out what the public 'wants' and how to meet its 'needs.'" The scare quotes suggest which side of this debate Nestle comes down on. If you view competition as bad for consumers, you can't have a very sanguine view of their ability to resist corporate come-ons. "Food industry practices distort what Americans are told about nutrition…and compromise food choices," Nestle argues. "Food companies will make and market any product that sells, regardless of its nutritional value or its effect on health. In this regard, food companies hardly differ from cigarette companies."
And not just in this regard. "Like cigarette companies," Nestle writes, "food companies…expand sales by marketing directly to children." That's what Brownell was getting at, of course, when he started comparing Ronald McDonald to Joe Camel. The child protection argument is crucial for the anti-fat movement because, as Nestle notes, "most of us believe that we choose foods for reasons of personal taste, convenience, and cost; we deny that we can be manipulated by advertising or other marketing practices." But even if you're naive enough to believe that you know your own desires, you may still think that children, less savvy about advertising than adults, are vulnerable to manipulative marketing—"easy prey for the food companies," as Brownell and Horgen put it. After all, "children find advertisements fantastically engaging."
However mesmerizing the commercials for Lucky Charms or Skittles might be, parents usually have some say as to whether the product will be purchased. "It is easy to blame parents," say Brownell and Horgen. No, it's not. It is easy to blame big corporations. Blaming parents means expecting them to take an active role in monitoring their kids' diets. As Nestle suggests, that is not a popular message. "Most parents of my acquaintance tell me they are constantly arguing with their children over food choices," she writes. "Parents vary in the ways they deal with children's demands for advertised foods, but many prefer to reserve family arguments about setting limits for dealing with aspects of behavior that they consider more important." Please. If parents don't have the wherewithal to say no when their kids ask for something they saw on TV, their problems go far beyond the risk of chubby offspring.
This is not to deny that the rise in obesity among minors, which has been accompanied by the increasingly early occurrence of what used to be called "adult onset" (Type 2) diabetes, is a legitimate cause for concern. The government's data indicate that 15 percent of Americans between the ages of 6 and 19 were overweight in 2000, about three times the rate in the early 1970s. It's certainly appropriate for parents, educators, nutritionists, and physicians to talk about how to improve nutrition education, increase physical activity during the school day, and raise the quality of food available in schools. But anti-fat activists are using concern about obese kids to justify policies that treat adults like children—as any attempt to eliminate ads that reach minors inevitably would.
Brownell understands that since "the responsibility to protect children is deeply ingrained in American morality," it makes sense to depict the anti-fat campaign as a crusade to save the children. "Children are targeted in a relentless way by the food companies," he and Horgen write. "Children need us; the nation can afford to fail them no longer. They need protection from the giant that looms over them."
Presumably they're not talking about the Jolly Green Giant, since he hawks the vegetables that Brownell wants to subsidize. But the food giant certainly seems friendly, offering consumers a cornucopia of food choices at low prices. You could easily be fooled by the giant's benign appearance if, like most Americans, you've been tricked into believing that choice and value are good.
Anti-fat activists know better. For Nestle, the huge number of food products on the market is prima facie evidence of the industry's callous disregard for "the public health." Brownell emphasizes that variety encourages overindulgence.
Likewise, food sellers who give customers extra value for their money clearly are up to no good. "Americans are constantly induced to spend a little more money to get a lot more food," lamented Margo Wootan of the Center for Science in the Public Interest (CSPI) in a press release that accompanied the 2002 exposé "From Wallet to Waistline: The Hidden Costs of Supersizing." She added: "Getting more for your money is ingrained in the American psyche. But bigger is rarely better when it comes to food."
Among the horrors highlighted by the report: "Upgrading from a 3-ounce Minibon to a Classic Cinnabon costs only 24% more, yet delivers 123% more calories….Switching from 7-Eleven's Gulp to a Double Gulp costs 42% more, but provides 300% more calories….It costs 8 cents more to purchase a McDonald's Quarter Pounder with Cheese, small French fries, and small Coke (890 calories) than it costs to buy the Quarter Pounder with Cheese large Extra Value Meal, which comes with a large fries and large Coke (1,380 calories)….A 23% increase in price [for movie theater popcorn] provides 125% more calories."
Just to be clear: CSPI is saying that bargains are bad, that there is something sinister about volume discounts and package deals. McDonald's is practically giving away tasty meals to eager customers, and we should all be deeply troubled by that fact. Brownell and Horgen, who cite "From Wallet to Waistline" in their book, argue that food bargains amount to "consumer exploitation" because "people have biological vulnerabilities that promote overeating when large portions are available, a strong desire for value, and the capacity to be persuaded by advertising."
Junk Food Junkies
With sneaky corporations taking advantage of consumers in this way, litigation was inevitable. The most conspicuous booster of fast food lawsuits is George Washington University law professor John Banzhaf, a longtime proponent of suing our way to a better society who treats the epithet "legal terrorist" as a compliment. In the 1960s this self-identified "Nader of the cigarette industry" used the fairness doctrine (which Brownell wants to revive as a weapon against Big Food) to demand that broadcasters who carried cigarette commercials also provide time for anti-smoking spots, a legal strategy that ultimately led to the demise of tobacco ads on TV and radio. Like other anti-smoking activists, Banzhaf initially resisted the analogy between tobacco and food, telling The Washington Times in 1997: "I've heard it since 1969, when they said if we applied the fairness doctrine to cigarette commercials, there'd be anti-automobile ads and anti-McDonald's ads. But it never happened."
Five years later, Banzhaf was serving as an "informal adviser" to New York City attorney Samuel Hirsch, who filed the first two lawsuits in which obese people blamed fast food restaurants for making them fat. Hirsch's first client was a 56-year-old maintenance worker named Caesar Barber, who was five feet, 10 inches tall and weighed 272 pounds (giving him a BMI of 39). The main problem with Barber, who continued a diet consisting largely of burgers and fries despite a heart attack and warnings from his doctor, was that his stupidity was literally unbelievable. "They said, '100 percent beef.' I thought that meant it was good for you," he claimed after filing the lawsuit in July 2002. "Those people in the advertisements don't really tell you what's in the food. It's all fat, fat, and more fat. Now I'm obese."
Hirsch eventually dumped Barber in favor of two hefty New York teenagers who claimed to have eaten at McDonald's on most days of the week for years. That lawsuit, which Hirsch intended as a class action, was dismissed twice, the second time with prejudice, for failing to adequately state a claim. The first time around, in January 2003, U.S. District Judge Robert Sweet declared that "any liability based on over-consumption is doomed if the consequences of such over-consumption are common knowledge….If a person knows or should know that eating copious orders of supersized McDonald's products is unhealthy and may result in weight gain…it is not the place of the law to protect them from their own excesses. Nobody is forced to eat at McDonald's….Even more pertinent, nobody is forced to supersize their meal or choose less healthy options on the menu."
To counteract this presumption of individual responsibility, Banzhaf thought Hirsch should have ditched his weak claim about misleading ads in favor of the two arguments that Sweet's ruling seemed to identify as the most promising. Citing McDonald's fries and Chicken McNuggets as examples, the judge noted that people might be surprised by all the ingredients in some of the chain's products (although the information is available online and upon request in the restaurants). If the plaintiffs could show that such items were not what they seemed, he said, "it may establish that the dangers of McDonald's products were not commonly well known."
The other argument to which Sweet seemed receptive was that fast foods are addictive, a theme that Banzhaf, the self-anointed "spark plug and spokesman for this controversial movement," emphasizes in the press releases he e-mails to anyone who might mention him in print or on the air. (In what may be a first for him, Banzhaf turned down the opportunity to be interviewed for this article.) Banzhaf is quick to latch onto any study that can be used to suggest that certain foods trigger a physiological compulsion to overeat. In October, for example, he trumpeted an article in New Scientist that cited, based on a review of a dozen or so studies with rats, "a growing body of evidence" that "fats and simple sugars can act on the brain the same way as nicotine and heroin." He announced that he had "sent a legal notice to several large food companies suggesting that, in light of the growing evidence that eating fattening foods can produce addictive effects on the brain similar to nicotine, they may have a legal duty to warn their customers."
Such research does not tell us anything important about overeating that we didn't already know. As the psychiatrist Sally Satel noted at the AEI conference on obesity in June 2003, "virtually every pleasure we encounter is associated with surges in dopamine," and brain images "cannot distinguish between an irresistible impulse and an impulse that is not resisted." Just as we did not need brain scans to recognize that smokers often have difficulty giving up tobacco—a fact that people have been noting for hundreds of years—we do not need rat studies to show that people find eating pleasurable, often eat more than they initially intend, regret their overeating, and have trouble cutting back to lose weight despite the health risks and social costs of being fat. In these respects, eating high-calorie foods, like any activity that provides pleasure or relieves stress, can be addictive, leading to habits that are hard to break. But jurors are not likely to blame fast food chains for the familiar sin of gluttony unless they are led to believe that McDonald's, Wendy's, and Burger King pump their food full of magical chemicals that enthrall customers and keep them coming back for more.
Banzhaf suggests that such chains are the main cause of rising BMIs. In a May 2003 press release, he cited a study that he said found "the proliferation of fast food restaurants…is responsible for over 65% of the current epidemic of obesity." The study, a statistical analysis published by the National Bureau of Economic Research in October 2002, looked at restaurants in general, not just fast food. It found that "the increase in the per capita number of restaurants makes the largest contribution to trends in weight outcomes, accounting for 69 percent of the growth in BMI." In their conclusion, however, the authors introduced a cautionary note that Banzhaf conveniently ignored: "A literal interpretation of this result implicates fast-food and full-service restaurants as culprits in undesirable weight outcomes. But a very different interpretation emerges if one recognizes that the growth in these restaurants, and especially fast-food restaurants, is to a large extent a response to the increasing scarcity and increasing value of household or nonmarket time." In other words, economic changes such as greater participation in the labor market by women have increased the demand for fast, convenient meals. As the NBER's summary of the paper put it, "fast-food or convenience meals should rightly be considered as much an effect as a cause of American eating patterns."
Interestingly, the same study also found evidence that declines in smoking have contributed to rising BMIs, since people tend to gain weight when they give up cigarettes. Banzhaf failed to note this finding, perhaps because he's afraid fat people might start suing anti-smoking activists.
Although Banzhaf repeatedly refers to "five successful fat lawsuits" in his press releases, none of them involved a jury verdict. More to the point, none involved a plaintiff who blamed a company for his obesity. One case, which was initiated by some of Banzhaf's students at GWU and led to a $10 million settlement in 2002, faulted McDonald's for advertising that its French fries were cooked in vegetable oil while failing to mention that they were precooked in beef fat, an omission that understandably upset Hindus and vegetarians. It was a "fat lawsuit" only in the sense that it involved cooking fat. The litigation "victories" tallied by Banzhaf also include New York City's 2003 decision to ban soda and sugary snacks from public school vending machines, which was not part of a lawsuit settlement, and Kraft's decision to stop using hydrogenated vegetable fat in Oreo cookies, which was announced two months after a quickly withdrawn lawsuit filed in May 2003 by a San Francisco attorney who admitted the hazards of such fat were too well-known for him to win his case.
While Banzhaf's bragging needs to be taken with a tablespoon of salt, that does not mean food lawsuits will never take off. Victor Schwartz, a leading civil defense attorney and expert on tort law who has been advising the National Restaurant Association, an industry trade group, says such cases face formidable barriers, including the difficulty of arguing that a product is defective simply because consuming too much of it can be dangerous and the challenge of tracing a plaintiff's obesity to one company's food. But he notes that law firms are monitoring the issue and that a 2003 conference on food-related litigation organized by Banzhaf and Northeastern University law professor Richard Daynard (another anti-smoking veteran) was well-attended. State and federal "cheeseburger bills" aimed at protecting food sellers from liability—one of which the U.S. House of Representatives approved by a 2-to-1 margin in March—show the industry is worried. Recent decisions by McDonald's to reformulate Chicken McNuggets and to eliminate "supersize" French fries and soft drinks also can be seen as defensive responses to the litigation threat.
"The greatest danger, I believe, does not come from individual lawsuits," Schwartz says. If a case gets as far as discovery, however, it may produce industry documents that support the image of devious companies tricking people at a young age into unhealthy habits they later have trouble breaking. And once the public has begun to fault Big Food for hooking kids on cheeseburgers and fries, Schwartz suggests, "a state attorney general or two could…bring a tobacco-like lawsuit against the food industry because of the cost obesity places on Medicaid….Then a lot of these legal barriers could crumble, just the way they did with tobacco." And as with tobacco, much of the anti-fat agenda, including higher food prices and marketing restrictions, could be achieved through lawsuit settlements, making it unnecessary to lobby legislators.
The rationale for such lawsuits is also the main rationale for the war on obesity. As Banzhaf put it in a May 2003 press release, "obese patients are contributing to skyrocketing Medicare and Medicaid outlays and costing thin taxpayers tens of billions of dollars a year." A study published last year in the journal Health Affairs estimated that the health care costs associated with excessive weight amount to something like $93 billion a year, half of it covered by Medicare and Medicaid. On average, medical treatment cost $732 more per year for the obese and $247 more for the merely overweight. (The increases in Medicare and Medicaid costs were statistically significant only for the obese.) "If people want to be 200 pounds," said the study's lead author, economist Eric Finkelstein, "then that's their choice. But ultimately, if the taxpayer is paying for those choices…that is where the justification for government involvement comes from."
As Finkelstein and his co-authors acknowledged, however, it's not clear that taxpayer costs are higher, on balance, than they would be if everyone were thin. In the case of smokers, economic analyses indicate that taxpayer savings from less health care in old age and fewer Social Security payments (because of shorter life expectancies) outweigh the costs of treating tobacco-related diseases. Finkelstein argues that the calculation is likely to come out differently in the case of obesity, partly because "the elderly obese have only a marginally shorter life expectancy." Yet the data from the Framingham Heart Study suggest that obesity and smoking have a similar impact on life expectancy. University of Chicago economist Tomas Philipson, whose work on weight trends is widely cited, says "it's not clear whether obese people are costing us more or costing us less."
More important, the argument based on taxpayer-funded health insurance proves too much. It gives the government an open-ended license to tax, regulate, or ban any behavior that might lead to disease or injury. In Food Politics, Marion Nestle declares that "obesity contributes to increased health care costs, thereby becoming an issue for everyone, overweight or not." When I ask her how far she would take this principle, she says that depends largely on how social norms evolve. "The government deals with all kinds of risky behavior: smoking, seat belts, alcohol—all of those," she says. "I think it's a case-by-case situation." But if, as Nestle insists, "diet is a political issue," what isn't? The same logic suggests the government should take an interest in how much sleep you get, what kind of sex you have, and whether you floss regularly.
Both Nestle and Brownell dismiss defenses of individual choice and responsibility as the self-serving rationalizations of profit-hungry corporations. But while anti-fat activists treat "freedom" as an empty corporate slogan, they seem to think the mantra of "public health" can justify any policy proposal. The phrase allows them to smuggle in the assumption that government action is appropriate without having to offer an argument. Like the habit of calling rising BMI trends an "epidemic," this rhetorical trick obscures the fact that obesity is not a contagious disease; it does not spread from person to person in a way that justifies state action.
Brownell does not acknowledge a distinction between voluntarily assumed risks and risks imposed on others. He wants us to think of efforts to "clean up" the "toxic food environment" as equivalent to restrictions on air and water pollution. "Prudent public health practice structures the environment so citizens have lowered exposure to hazards," Brownell and Horgen explain. They seem oblivious to the totalitarian implications of such a broadly understood "public health" agenda, which makes even the most personal choices subject to group control. "Before progress can be made on changing the American diet," they write, "there must be collective agreement that the population should be eating more of some foods and less of others." They call their goal a "Braver New World," apparently without recognizing the chilling connotations of that phrase. And although Brownell has said "a militant attitude is warranted" when it comes to food, he describes his policy proposals as "centrist."
In some respects, Brownell does not seem to have the courage of his collectivist convictions. When I facetiously suggested at the AEI conference that, rather than tax certain foods (which might be eaten by the thin as well as the fat), the government should tax people for each pound over their ideal weight, he objected. Brownell's complaint was not that such a system would be tyrannical because how much you weigh is your business, not the government's. Plainly, he doesn't believe that. Instead, he worried that a weight tax puts too much emphasis on individual responsibility rather than the environment. But if the prices people pay for food are part of the environment that encourages obesity, so is the price they pay for being fat.
Speaking of which, Brownell condemns "anti-fat media messages" and the social stigma attached to obesity, saying people should not be blamed for their failure to resist the forces that make it is so difficult to stay thin. But from a "public health" standpoint, fairness is not the issue. The only question is whether making fat people miserable encourages them to lose weight. Brownell suggests it doesn't, but why would such pervasive social pressures be less effective than a tax on Doritos?
Similarly, last year John Banzhaf told the Obesity Policy Report, "I don't think the government can order [people] to exercise." Why not? Which is more likely to make Ameri-cans thinner: suing McDonald's, or mandatory calisthenics in the public square every morning? If you assume that slimming us down is a proper goal of government, it's hard to see the objection to policies that show promise of actually working, as opposed to enriching lawyers or making a statement.
While the idea of legally compelled jumping jacks may seem utterly fanciful (as the Twinkie tax did until recently), it is by no means the most extreme scenario suggested by a government-waged war on fat. As economist Tomas Philipson notes, Americans have been getting fatter for at least a century, primarily because of developments that have been tremendously positive on balance. Technological improvements in agriculture and processing have made food so cheap that even the poorest people in developed countries can afford to eat more than they need to survive. (Indeed, the poorest Americans are the fattest—an astonishing reversal of the relationship between wealth and weight that prevailed for most of human history.) Work is much less arduous than it used to be, Philipson notes, so "the price of spending calories has gone up….Exercise has been pushed from labor to leisure." Rather than getting paid to expend calories, we now pay to do so, whether in leisure time or in money spent on health clubs, exercise equipment, and outdoor recreation. Labor-saving devices from the car and the washing machine to the remote control and the networked computer mean that we expend fewer calories away from work as well as on the job. We can choose from an amazing variety of entertainment options, many of them sedentary.
All these developments have contributed to our expanding waistlines, but as Philipson puts it, "We are better off being fatter and richer. I would not want to go back." Given this reality, it's rather disconcerting to see Brownell and Horgen proclaim, "Fundamental changes are necessary, because fundamental economic factors are central to the obesity epidemic."
Those who insist upon such "fundamental changes" cannot understand why others find the prospect alarming. Brownell thinks his critics are not being constructive if they fault his plan for remaking the world without offering a plan of their own. The same sort of incomprehension was apparent at the AEI conference on obesity, where University of Chicago law professor Richard Epstein argued that fat people can impose costs on others only if the government forces taxpayers to pick up the tab for their health care or prevents insurers and employers from discriminating based on weight. Eliminate these distortions, he said, and weight control would be purely a private matter. In that case, a hostile audience member asked him, what are you doing to prevent obesity? Epstein's answer: "I play basketball."
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