Obesity: should there be a law against it? Introduction to a symposium

The rapid rise in rates of overweight and obesity among adults and children in Australia and New Zealand has intensified debate about the most effective policies for obesity prevention. Law has much to contribute to this policy discussion, although its role is often misunderstood. The articles in this symposium follow on from a conference hosted in September 2006 by the Centre for Health Governance, Law & Ethics in the Faculty of Law, University of Sydney, titled: Obesity: should there be a law against it? In different ways, these articles provide a variety of perspectives on regulatory responses to obesity, including theoretical justifications for a legal approach, conceptual models that assist in making sense of law's role, as well as specific legal strategies for obesity prevention in various settings

What's law got to do with it Part 2: Legal strategies for healthier nutrition and obesity prevention

This article is the second in a two-part review of law's possible role in a regulatory approach to healthier nutrition and obesity prevention in Australia. As discussed in Part 1, law can intervene in support of obesity prevention at a variety of levels: by engaging with the health care system, by targeting individual behaviours, and by seeking to influence the broader, socio-economic and environmental factors that influence patterns of behaviour across the population. Part 1 argued that the most important opportunities for law lie in seeking to enhance the effectiveness of a population health approach

From Harm to Robustness: A Principled Approach to Vice Regulation

John Stuart Mill’s harm principle maintains that adult behavior cannot justifiably be subject to social coercion unless the behavior involves harm or a significant risk of harm to non-consenting others. The absence of harms to others, however, is one of the distinguishing features of many manifestations of “vices” such as the consumption of alcohol, nicotine, recreational drugs, prostitution, pornography, and gambling. It is with respect to vice policy, then, that the harm principle tends to be most constraining, and some current vice controls, such as prohibitions on drug possession and prostitution, violate Mill’s precept. In the vice arena, we seem to be willing to accept social interference with what Mill termed “self-regarding” behavior. But does that willingness then imply that any social intervention into private affairs is justifiable, that the government has just as much right to outlaw Protestantism, or shag carpets, or spicy foods, as it does to outlaw drugs? In this paper I argue that advances in neuroscience and behavioral economics offer strong evidence that vices and other potentially addictive goods or activities frequently involve less-than-rational choices, and hence are exempt from the full force of the harm principle. As an alternative guide to vice policy, and following some guidance from Mill, I propose the “robustness principle”: public policy towards addictive or vicious activities engaged in by adults should be robust with respect to departures from full rationality. That is, policies should work pretty well if everyone is completely rational, and policies should work pretty well even if many people are occasionally (or frequently) irrational in their vice-related choices. The harm and robustness principles cohere in many ways, but the robustness principle offers more scope for policies that try to direct people “for their own good,” without opening the door to tyrannical inroads upon self-regarding behavior