Dawson, A

Wilson, J

English

UCL Discovery

1Giving Liberty Its Due, But No More: Open Peer Commentary on ResnikAuthor Contact DetailsTitle: Giving Liberty Its Due, But No MoreAuthorsJames Wilson (corresponding author) and Angus DawsonContact detailsDr James WilsonLecturer in Philosophy and HealthCentre for Philosophy, Justice and Health and Comprehensive BiomedicalResearch CentreUniversity College LondonCharles Bell House67-73 Riding House StLondon, W1W 7EJ, UKjames-gs.wilson@ucl.ac.uk Tel: +44 (0)20 7679 9417DrAngus DawsonSenior Lecturer in Ethics and PhilosophyCentre for Professional EthicsKeele UniversityKeeleStaffordshire. ST5 5BG, UKa.j.dawson@peak.keele.ac.uk2Giving Liberty Its Due, But No More: TransFats, Liberty and Public HealthAmerican Journal of Bioethics 10(3):34-36 2010Dr James Wilson (corresponding author) and DrAngus DawsonAbstract: Resnik’s argument relies upon an undefended and unjustifiedovervaluation of liberty. First, he overlooks some important arguments in favourof restrictions to liberty, and his consideration of the two he does review is unfair;second his account grossly overestimates the autonomy of our food choices; andlastly his mechanism for balancing liberty against other concerns involves anillicit double counting of the weight of individual liberty.Resnik argues that banning trans fats (TFs) from restaurants is unjustifiable at thepresent time as it is too restrictive of human freedom. We agree with Resnik thatliberty is an important value, one that ought to be protected and promoted.However, his argument relies upon an undefended and unjustified overvaluationof liberty. First, he overlooks some important arguments in favour of restrictionsto liberty, and his consideration of the two he does review is unfair; second hisaccount grossly overestimates the autonomy of our food choices; and lastly hismechanism for balancing liberty against other concerns involves an illicit doublecounting of the weight of individual liberty.1. Resnik on banning Trans FatsResnik considers only two arguments in favour of banning TFs, both of which he3describes as consequentialist in form: TF bans promote public health, and a banwould bring about economic cost savings. He claims that these are the ‘main’arguments in favour of a ban, but provides no reasons for this claim.Resnik responds to the first argument by pointing out that we have made mistakesin food policy in the past. It is true that regulation – in the case of food aselsewhere – frequently fails to achieve a desired goal. However, this is a generalproblem with regulation, and we have no reason to think that decisions about theregulation of TFs are any more uncertain than anything else. It is important to notethat there are also costs to not regulating: if a foodstuff is in fact dangerous,delaying regulating it on the grounds of uncertainty about the exact effects of aban will mean people will, with certainty, be harmed unnecessarily. Given theempirical facts as presented by Resnik himself there is a strong argument foraction in this case.Resnik’s response to his second ‘main’argument, the economic justification forintervention, is to suggest that the projected cost saving are dubious. We agree thatthe calculations here are complex and contentious. However, Resnik is hardly fair.Whilst costs may provide grounds for a ban, no one (to our knowledge) reliespurely upon health cost-savings as an argument for banning TFs. Costs are ofcourse relevant, but policy is not, and ought not to be, based on appeal to costsavings alone. Benefits (and other moral considerations) also need to be weighedin deliberations about policy. If this is done, even if economic costs of a TF banare higher, there may still be good reasons to act.More generally, Resnik seems to presuppose that consequentialist grounds willprovide the main support for public health regulation. This has two problems.First, it is not true. The most common arguments in favour of a ban are actually4based around harm prevention and reduction (reasons that have bite at both theindividual and population level). Whilst these reasons may be considered by aconsequentialist, you don’t need to be a consequentialist to see their importance.Second, there are also recognisably rights-based justifications for public healthregulations. On such views, the state has an obligation to take reasonable steps toprotect its citizens from various types of risk to their health, and citizens arewronged as individuals if the state fails to do this. Such a moral view is implicit inthe claim – signed up to by the vast majority of countries – that there is a humanright to the highest attainable standard of heath. (CESCR 2000) This type of viewwould have been important for Resnik to consider, as it implies that it is not justincursions into liberty that we must be able to justify to each individual whoseliberty is infringed, but also failures to remove threats to health from theenvironment.2. Choices to eat unhealthy foodMany people do have preferences for unhealthy food. But at the same time manypeople have preferences for an environment in which the food that is easilyavailable for them to buy is healthy. Hence, the first thing to notice here is thatwhichever way we choose to regulate (or refuse to regulate) TFs will involveoverriding the autonomous preferences of some citizens. Making policy decisionsin circumstances of such disagreement is difficult, but there is no good reason topresume that inaction per se is to be preferred (Grill 2009).How should we interpret choices to eat unhealthy food? Presumably unhealthyfoods are rarely considered worthy of choice simply for the reason that they areunhealthy: they are generally chosen in spite of the fact that they are unhealthy.Some choices for unhealthy foods are autonomous – choices which are in linewith what the person would choose if they were deciding lucidly given theirdeepest values. Other choices for unhealthy food are not autonomous – for5example where someone is unaware of the risks of TFs, or discounts the risks offuture coronary heart disease in a way they would on closer reflection thinkirrational. Where possible, it is certainly worth trying to address this epistemicdeficit by providing relevant information and labelling.However, it is naive to believe that this alone will address the problem, as ourchoices about food rarely attain an adequate level of autonomy. Empirical studiesdraw attention to the power of social and cultural influences upon our choices aswell as the role of non-rational situational influences (Mulvaney-Day andWomack 2009). It follows that where we regulate to help ensure that the foodpeople eat is healthy, we will rarely be overriding preferences which areadequately autonomous. So even where the intention of food regulation ispaternalistic, this may well be justifiable (Nys 2008). Moreover, the people whoare most likely to come to harm through the liberty to eat TFs are those who arealready badly off. Hence, pace Resnik, giving citizens the liberty to choose thingsthat we have reason to think bad for them will tend to exacerbate inequality(Arneson 2005).3. Weighing Liberty Against HealthResnik argues that we should weigh liberty against public health according to theprinciples for public health regulation that Childress et al. (2002) lay out, namely:effectiveness, proportionality, necessity, least infringement, and publicjustification. Resnik allows that banning TFs from restaurants would be effective,proportional, and could be publicly justified. However, he argues that such a banis nonetheless currently illegitimate because it would not meet either the criterionof necessity or the criterion of the least restrictive alternative. TF bans fail tocomply with these criteria, he argues, because there are other less restrictivemeasures, viz mandatory labelling and public education, which could be effective6in reducing TF intake, and therefore we cannot say that it is necessary to ban TFsfrom restaurants.However, Resnik’s argument is weak. The necessity criterion simply asks us toconsider whether there are other ways of regulating a particular public health riskwhich have a better balance of moral benefits over moral costs. Costs to libertyare only one of the relevant factors. The very probable large costs to human lifethrough waiting and seeing whether education and labelling policies are effectiveways of reducing trans fat intake is also a relevant factor. Resnik provides noreason to think that the moral costs associated with these very probable deaths aresmaller than those associated with the infringement of liberty.Moreover, invoking the “principle of the least restrictive alternative” in publichealth regulation seems to be either almost entirely superfluous, or to involve anillicit form of double counting. If it means that we should adopt the leastrestrictive alternative out of the ones that have already been singled out as offeringthe best balance of moral benefits over moral costs, then presumably it can onlyoperate as a tie-breaker, and so will be unable to do the work Resnik requires.i Butif it is supposed to play a substantive role (as Resnik seems to imagine it will),then it seems to be clearly illicit, given that liberty has already been weighed inthe balance against the other goods at the stage of working out which policies areproportional and necessary. Liberty is an important value, but it is not soimportant that it ought to be counted multiple times.ConclusionWe have argued that Resnik overvalues liberty in three distinct ways. First, hefails to consider some powerful arguments for thinking that the state ought to7intervene to create a safe environment for its citizens. Second, he overestimatesthe degree to which food choices are autonomous. Third, he puts his thumb on thescales when he comes to weigh liberty against protection of the health of thepublic. Giving liberty its due -- but no more than its due -- would allow us toadopt a more sensible policy, in which we ought to weigh the liberty to eat TFsless heavily than the protection of thousands from early death through a simpleintervention that no member of the public will even notice.ReferencesArneson, R. 2005. Joel Feinberg and the Justification of Hard Paternalism. LegalTheory 11: 259-284.Childress, JF., Faden, RR., Gaare, RD., Gostin, LO., Kahn, J., Bonnie, RJ., Kass,NE., Mastroianni,AC., Moreno, JD., Nieburg, P. 2002. Public Health Ethics:Mapping the Terrain. The Journal of Law, Medicine & Ethics 30(2): 170-178.Committee on Economic, Social and Cultural Rights 2000. General Comment No.14 (2000): The right to the highest attainable standard of health. E/C.12/2000/4Grill, K. 2009. Liberalism, altruism and group consent. Public Health Ethics 2(2):146-157.Mulvaney-Day, N. and Womack, CA. 2009. Obesity, Identity and Community:Leveraging Social Networks for Behavior Change in Public Health. Public HealthEthics 2(3): 250-260.Nys, TRV. 2008. Paternalism in public health care. Public Health Ethics 1(1): 64-72i It is also worth noting, in passing, that it is unclear why we should take liberty to be the8tiebreaker rather than any other important value, such as, say, equality.

Joel Feinberg and the Justification of Hard Paternalism.

Obesity, Identity and Community: Leveraging Social Networks for Behavior Change in Public Health.

Paternalism in public health care. Public Health Ethics 1(1): 64-72 i It is also worth noting, in passing, that it is unclear why we should take liberty to be the8 tiebreaker rather than any other important value, such as,

Public Health Ethics: Mapping the Terrain.

The right to the highest attainable standard of health.

Giving Liberty Its Due, But No More: Trans Fats, Liberty, and Public Health

Giving Liberty Its Due, But No More: Trans Fats, Liberty, and Public Health

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