Paternalism and Public Health

Posted on: March 13, 2016 Topics: dean's note

thisweek365-deans-noteThere has been perhaps no easier way to tarnish the work of public health in the past decade than to suggest that public health is engaged in actions that are “paternalistic”—or, to put it in the more commonly accepted vernacular, exposing us to a “nanny state.” This charge has particularly affixed itself to actions taken in New York City during the tenure of Michael Bloomberg as mayor, and is perhaps best epitomized by the effort, in 2012, to amend the NYC Health Code so that “food service establishments” limit the size of containers used to sell sugary drinks. The intent of the Sugary Drinks Portion Cap Rule, as the measure was called, was to elevate public awareness of the health challenges of sugary drinks and their contribution to the obesity epidemic. I had the privilege at the time of sitting on the NYC Health Board and voted for this rule. The effort came on the heels of other public health initiatives enacted by Bloomberg, including an indoor smoking ban and a ban on trans-fat. The soda rule, however, proved something of a bridge too far. Its opponents argued that it was wrong-headed and paternalistic, an unforgivable imposition of the “nanny state” on the lives of citizens. The rule was ultimately struck down by the New York Court of Appeals.

Why has the charge of “nanny state” been such an effective rallying cry for opponents of government-sponsored public health measures? How do we come to grips with the accusations of paternalism that are sometimes directed our way? Is public health, in fact, inherently paternalistic? If so, is this necessarily a bad thing?

Both the word “paternalism” and the phrase “nanny state” suggest the actions of a parent looking after a child. While for some this may be comforting, and perhaps consistent with the role of government in general, for many it is precisely the problem. Critics suggest that there is an infantilization at work here, a finger-wagging in the face of the sovereign individual. The citizen is deemed unfit to make her own decisions and must therefore be told what to do by those who think themselves in the know. It is not difficult to grasp why this view of paternalism might upset some. In some cases, in fact, public health has been its own worst enemy. Recent advice from the Centers for Disease Control and Prevention that all women of childbearing age should avoid drinking alcohol has been widely, and perhaps justifiably, criticized as being unnecessarily paternalistic.

What has been missing in the ruckus surrounding the CDC’s recent recommendation, however, is the form of CDC’s recommendation. CDC’s advice was just that—advice. The report did not advocate banning alcohol, nor was it in any way coercive. It was designed to inform, not to interfere. This distinction—between a paternalism that guides people’s choices through suggestion, or “nudges,” and a mode that relies on penalties and outright prohibitions—is an important one.

Let us illustrate this with a metaphor borrowed liberally from John Stuart Mills’ On Liberty, a work that attempts, among other things, to determine to what extent the state may be permitted to interfere in the lives of citizens “for their own good.”

A man is backpacking in a foreign country where he does not speak the language. As he hikes a mountain trail, he approaches a steep gorge. Across the gorge runs a bridge. As the man approaches the bridge, he sees that there is a sign next to it, but because the message of the sign is written in the country’s native tongue, he cannot understand what it says. If he could, he would recognize it as a warning: “Stay off this bridge! It is unsafe.”

Now imagine that you are a native of this country, watching this scene unfold. You speak the language and can understand the sign. Will you intervene, and explain the danger to the traveler? Or will you let him take his chances? Say you were to intervene and physically prevent him from crossing. You apprehend him and inform him, in his own language, of the risk he would run in proceeding. You then ask him if, knowing what he now knows, he would still like to go on. He answers “yes.” Having heard his response, you decide, for his own safety, not to let him cross. This is what is known as “hard paternalism”—when a government places laws between the citizen and his poor choices. In his treatise The Moral Limits of Criminal Law, political philosopher Joel Feinberg writes, “Hard paternalism will accept as a reason for criminal legislation that it is necessary to protect competent adults, against their will, from the harmful consequences even of their fully voluntary choices and undertakings.”

But say you never chose to restrain the traveler. Say you just stepped forward and helpfully translated the sign for him, and he—now fully comprehending his situation—decided to turn back. You would have saved his life without resorting to anything more drastic than simply making sure the man was aware of the danger he was in. You would have interfered with his choice only to check that it was truly voluntary—after all, if a man doesn’t know that a bridge is unsound, he doesn’t know that his decision to cross or not is actually a choice between life and possible death. His ignorance therefore becomes a kind of coercion, forcing him to make a call he never intended to make. In this regard, your interference actually increases his autonomy, as he now knows what he’s getting into and can plan accordingly. This is the function of “soft paternalism”—to make sure that an individual’s choices are fully informed, so that they can be fully voluntary.

Cigarette warning labels are a good example of soft paternalism at work. Consider the situation as it was 50 years ago. With all the marketing savvy of the tobacco industry laboring to make smoking seem like a glamorous lark, a consumer might have been forgiven for not knowing that the activity can lead to some truly grisly health outcomes. Back then, it was possible to consider buying a pack of cigarettes without knowing that the question “to smoke, or not to smoke?” was, more realistically, the question “to lose a lung and possibly harm my family with toxic fumes, or to avoid all that?” The introduction of warning labels allowed the consumer to decide with open eyes. In the case of smoking, prevention measures have stopped short of hard paternalism (the sale of cigarettes is still legal in the United States), but regulation ensures that the consumer is now aware of the risk. Perhaps this knowledge might even nudge her behavior in a healthier direction.

Such nudges are all around us. We are, in fact, regulated at all times and on all fronts—we just do not think about it. From seat belt laws, to food safety initiatives, to hunting seasons, our society is full of measures designed to promote the general welfare through benign, commonsense regulations. When we begin noticing the ubiquity of these rules, the uproar occasionally provoked by public health efforts can start to seem a bit arbitrary. The much-decried Portion Cap Rule, for example, was widely known as a “Soda Ban.” Actually, it was not a ban at all, but merely a limit on how much soda could be sold in a single container. Nothing about the rule would have prevented the consumer from buying a second beverage, if she so desired. The idea was that, by changing the default soda size, most people—inertia being what it is—would not have made the extra effort to order more. Thus health outcomes might have been improved, without infringing on anyone’s freedom of choice. It is worth noting, too, that food companies regularly cut back on the amount of product they provide, though for perhaps less noble reasons than those enumerated by Mayor Bloomberg. While the proponents of free access to all sizes of sugary drinks may have (for the moment) won the day in New York, genuine bans on soda and junk food have been smoothly implemented right here in Massachusetts, in an attempt to fight obesity in our schools.

As Cass Sunstein, former administrator of the White House Office of Information and Regulatory Affairs, has written, “Paternalism comes in a lot of shapes and sizes.” It can be hard or soft, obtrusive or carefully dispensed. The concept of the “nudge,” as explored by Sunstein and his colleague Richard Thaler, represents a powerful tool for improving the health of populations while at the same time respecting individual autonomy. The nudge might be anything from a label that tells you how long it will take to burn off the calories contained in a particular food to a tax hike on a harmful substance. Far from an assault on liberty, straightforward measures like these can actually lead to more freedom in the end, for the simple reason that healthy people, generally, have more options than sick people.

If mild, conscientious regulation stands to help a population sidestep the emotional, financial, and physical burdens of disease, then it is an option we ought to embrace. It is worth remembering that the so-called nanny state is not the only actor at play here. There is a broad range of efforts—from corporate interests to other public sectors’ agenda—that aim to influence consumers’ decisions. For example, Janet Hoek has argued in the pages of Public Health that “rather than depriving individuals of freedoms, state intervention maintains and defends those freedoms against commercial interests, which potentially pose a much greater threat to free and informed choice.” If we make no attempt to nudge the public toward a higher standard of living, there are others who will be all too happy to steer us down a more hazardous road. I stand firmly on the side of public health, and efforts to nudge us towards the direction of healthier populations.

As I conclude, I recognize that the topics addressed in the Dean’s Notes are indeed controversial. As I acknowledge below, my conversations with Professor Leonard Glantz motivated this note; Professor Glantz and I also disagree on several facets of this topic. To the end of catalyzing conversation, I asked Professor Glantz to write a Viewpoint reflecting on this Dean’s Note. He has generously agreed to do that, and his Viewpoint is also published in SPH This Week. As always, I look to motivate debate about the issues central to public health, and I would encourage all members of our community to join the discussion.

I hope everyone has a terrific week. Until next week.

Warm regards,

Sandro

Sandro Galea, MD, DrPH
Dean, Robert A. Knox Professor, Boston University School of Public Health
@sandrogalea

Acknowledgement: I am grateful for the contributions of Eric DelGizzo and Catherine Ettman to this Dean’s Note, and to Professor Leonard Glantz, whose challenge motivated it.

Previous Dean’s Notes are archived at: https://www.bu.edu/sph/tag/deans-note/


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5 comments

  1. I found this a fascinating argument, but ultimately one with which I did not agree. I think, when wondering about the backlash to public health information campaigns, it’s too easy to wonder if the problem was with how the information is presented. It then puts the onus on the recipient of the information to parse intent and expertise level of their interlocutor; to use the example you posited, the unknown variable is the bridge crosser, who is either reckless and irresponsible or wisely changes his plans. The warner’s course of action need never be questioned.

    In reality, I think the better question is not “should public health nudge” but “WHOM should public health nudge.” Should their targets be the consumer, who even if they are a Mills style rationalist are nonetheless inundated with choices and data? Or should the target be the producers of unhealthy choices, and the governments who blithely allow those choices onto the market in the pursuit of profit?

    A person whose charge is to ensure the safety of others can do far better with their time than stand at a bridge and translate signs. They can go directly to the bridge builders. And they should.

  2. Estoy de acuerdo en varios puntos considero que seria importante adoptar estrategias que permitan internalizar la información que recibe la población en general independientemente del nivel socio económico.

  3. I’m sorry to say that it seems your personal views on what it means to be free is formed by a mind looking at it through superiority sized glasses. AKA “I just know better than you.” It leaves you with a distorted view even if your hard-wiring says not so. The same happens with your perception of what a “nudge” is. The logic is convoluted. In fact, if one finds a need to explain it at any length it already raises a red flag. Because a real “nudge” is simple; it can be described in few words. A “nudge” would be advice and for the informed to then take it or leave it. In that sense, the analogy between what business does and what public health does fails to be an analogy at all. Business advertises products that a consumer can take or leave. Like a mother in-law it’s your job to just bite your lip and say nothing about the ultimate decision. “Nudges” like bans on certain foods by public health are a dictate that leaves one with no choice. You MUST obey. When not angry over this disagreement I find it rather fascinating that the distinction is unclear to members of Public Health. That, and their denials that they are content to stop at what I calle real nudges. The trans fat policy in NYC began with Bloomberg asking for voluntary compliance by restaurants. When not enough volunteered he turned it into law. So why wonder that public trust in Public Health is in jeopardy when even the acceptable nudges prove to be just the inch before you come for the mile?

  4. There is NO place in any free civilised country for ‘nanny statism’ or ‘paternalism’ whether ‘hard’, ‘soft’ or ‘nudging’! When ‘nudging’ fails to work ‘soft paternalism’ follows and when this fails to work ‘hard paternalism’ is inevitable. The end result will be a society of compliant drones, stagnation and loss of freedom for everyone.

    One fundamental flaw is that those who promote paternalism wrongly believe that they know everything about the subject or behaviour to be targeted and those who refuse to comply, or challenge their view, are stupid. Narcissism at its worst – however many ‘experts’ are quoted to support their case. It works on the flawed assumption that old science is bad science, current science is good science and future science will be no different to science today. The example of the unsafe bridge is a good example of how the flawed ‘public health’ mind works.

    Warning someone of an unknown danger is NOT ‘nudging’ or ‘soft paternalism’ it is common sense, in fact I would go as far as to say it is the duty of any human being to do so. Thereafter however it should be down to the individual to do their own risk assessment using the known facts, as they see them, to decide for themselves whether to take the risk or not. John Stewart Mill is absolutely right. Suggesting that you prevent them from crossing the bridge because you know better is similarly flawed. What if that person was a skilled mountaineer who could navigate the bridge safely, or a bridge designer who could expertly assess whether the bridge was or was not safe? Why not prevent NASA from sending people into space – they must be very stupid if they don’t know that this is an intrinsically dangerous practice – you must intervene for their own good eh? – No? – Why NOT? Thank goodness that these earlier paternalists were ignore when the great explorers, willingly and of their own volition, took the risk of falling of the edge of the world in their ships, when all the ‘experts’ told them that the earth was flat.

    The point is that paternalism is NOT progressive but debilitating and it hinders human development. Treating adults as children will result in them acting as children. The human race survives because people have been able to push the boundaries of risk rather than be restrained by mediocrity determined by the mediocre, the risk averse and the puritan. That is not likely to change despite the efforts of ‘public health’.

    Another major problem is that once ‘public health’ activists determine (deem) that X causes Y, based on the limited knowledge of the day, is that X becomes more important than Y and when the facts change there is a reluctance for ‘public health’ to adapt and accept that X may not cause Y after all.That in turn breeds rigid dogma. Thereafter it becomes more important to perpetuate the dogma than to benefit public health. The tobacco CONTROL issue is a perfect (and original) example. While smoking has been reducing as a result of earlier public health initiatives, so-called ‘smoke related’ illness continues to increase.

    Too many have reputations at stake and too much invested in the ‘smoking kills’ hypothesis to ever admit to being wrong. The result of course is that science is directed towards maintaining the dogma and suppressing opposing views, rather than to discover real causes and cures – public health actually suffers.

  5. Dean Galea ignores the many unscientific, unwarranted, counterproductive and disastrous laws and regulations that have been imposed by ideological extremists under the guise of “protecting public health” and especially “the children”.

    The epidemiologic evidence indicates that cigarette smoking kills 480,000 Americans annually, while smokeless tobacco products may cause several dozen oral cancer deaths.

    But in 1986, Congress enacted a law requiring all smokeless tobacco products (which are 99% less harmful than cigarettes, and have helped millions quit smoking) to contain three rotating warnings stating “This product is not a safe alternative to cigarettes.”, “This product may cause mouth cancer.”, and “This product may cause tooth loss and gum disease.” Proponents of that law grossly exaggerated the very low risks of smokeless tobacco, falsely claimed it was a “gateway” to cigarette smoking, and said the law’s purpose was to “protect children from the tobacco industry”

    Those warnings (repeated daily by public health agencies) have deceived 90% of Americans (including most doctors) to inaccurately believe smokeless tobacco is just as, or even more, harmful than cigarette smoking. More importantly, that law and those intentionally misleading warnings discouraged 45 million smokers from quitting smoking (by switching to far less harmful smokeless tobacco).

    During Galea’s term, New York City officials also banned the sale of many flavored smokeless tobacco products (but exempted far more harmful menthol cigarettes, which are smoked by half of teen smokers), also deceitfully claiming the purpose of the law was to protect children from Big Tobacco.

    From 2004-2009, Big Pharma funded Campaign for Tobacco Free Kids, American Cancer Society, American Lung Association, American Heart Association and dozens of other medical, healthcare and public health groups lobbied Congress along with Philip Morris to enact the Tobacco Control Act, which protected all deadly cigarettes (and Big Pharma’s nicotine products) from future market competition by all new very low risk smokefree tobacco/nicotine alternatives
    (by prohibiting FDA from banning cigarettes and from even banning cigarette sales to 18 year old high school students, while requiring a multi million dollar FDA approval process for all new smokefree products). The law also further protected cigarettes from all very low risk smokeless tobacco products (by banning truthful marketing claims saying smokeless is less harmful than cigarettes, and by requiring even larger false fear mongering warnings on all smokeless tobacco ads).

    Enacted in 2009, this law has done nothing to reduce cigarette smoking, but was falsely promoted to Americans by Big Pharma shills and tobacco control extremists under the deceitful guise of “protecting children from Big Tobacco”.

    That same year, those same groups and Sen. Lautenberg also urged the FDA to ban all nicotine vapor products (which were called e-cigarettes at the time) by falsely claiming that e-cigarettes were target marketed to kids, were addicting kids, were gateways to cigarette smoking, would renormalize cigarette smoking, were poisonous, and didn’t help smokers quit smoking.

    After US Customs seized e-cigarette shipments that were being imported to the US, two e-companies sued the FDA in federal court, which unanimously agreed the FDA had unlawfully imposed the e-cig ban when striking it down. For disclosure, I filed an amicus brief with the DC Court of Appeals opposing FDA’s unlawful e-cig ban, while Big Pharma funded CTFK, ACS, AHA, ALA, AAP and Legacy submitted amicus briefs defending FDA unlawful ban.

    But the same day FDA conceded it lost in court, the agency stated its intent to ban all nicotine vapor products again by imposing the Deeming Regulation, which it did in 2014, and whose final rule is now at the White House OMB/OIRA awaiting approval before issuance.

    The Deeming Regulation would further protect cigarette markets (and Big Pharma’s NRT and Chantix markets) by banning >99.9% of all nicotine vapor products in 2018, which would destroy 10,000 small vapor companies and eliminate about 50,000 jobs. But of course, Obama’s DHHS and those same Big Pharma funded groups have been aggressively lobbying for this regulation by once again falsely claiming it would “protect children from Big Tobacco”.

    But the scientific and empirical evidence consistently indicates that vapor products, like smokeless tobacco products, are about 99% less harmful than cigarettes. Even better, they’ve helped several million smokers quit smoking (by switching to vaping) during the past several years, as adult and teen smoking rates have dropped sharply to new record lows, and about 99% of all nicotine vapor products are consumed by smokers or by exsmokers who switched to vaping.
    Meanwhile, there is no evidence that nonsmoking youth have become hooked on vaping, and there’s no evidence vaping has ever served as a gateway to smoking for anyone (anywhere in the world).

    If the FDA’s Deeming Ban is approved by Obama, millions of vapers and tens of millions of cigarette smokers will be denied legal access to lifesaving vapor products. Many vapers may switch back to deadly cigarettes, but far more vapers will find their preferred vapor products on FDA’s newly created black and gray markets, which could quickly resemble black markets for alcohol during Prohibition in the 1920’s and for marijuana since the 1930’s.

    But those facts have stopped Obama’s DHHS, hundreds of its funding recipients and drug industry funded anti vaping tobacco controllers from repeating their disproved lies about vaping as they’ve also lobbied to enact hundreds of vaping bans (including in NYC, which was Michael Bloomberg’s swan song as Mayor in 2014).

    Perhaps Dean Galea wasn’t aware of these facts, or the false claims by many “progressive” public health officials and other extremists that natural gas fracking (which has significantly reduced carbon emissions in the US), hundreds of man-made chemicals, guns, coal mining, oil pipelines must all be banned because they threaten public health.

    As a longtime public health activist, I’m outraged that many left wing progressive ideologues have lied about the scientific evidence to scare the public and lobby for policy goals that harm public health and destroy companies and even economies under the false guise of “protecting public health”.

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