Self-destructiveness and the State
A review of Permit But Discourage: Regulating Excessive Consumption, W.A. Bogart; and XXL: Obesity and the Limits of Shame, by Neil Seeman and Patrick Luciani
In an editorial that appeared in The Globe and Mail in January 2011, André Picard, Canada’s most insightful health journalist, decried the growing tendency to blame and shame individuals for being overweight. In his view, the graphic images of big butts and jiggly bellies that invariably accompany television news items and documentaries make his point. Stigma also seems to be the weapon of choice of public health academics as they warn us of the obesity “pandemic.” Picard picked on Rebecca Puhl, the director of research at Yale University’s Rudd Center for Food Policy and Obesity, who referred to the obesity phenomenon as the “headless stomach.” You can almost hear the howls of outrage and indignation by the Puhls of this world: why can’t these people just control themselves?
Excessive consumption is a common enough human attribute, but our understanding of why we overdo almost everything that is momentarily pleasurable—food and alcohol, drugs and sex—is imperfect. Given this, how do we come up with policies to minimize the harm we do to ourselves and those around us? We use many different instruments and tools that rely on the softer techniques of education and incentive or harder regulatory approaches that may include prohibition and criminalization in extreme cases. Unfortunately, we rarely know with any precision the effectiveness of these various policy choices. To know more, we would have to rigorously evaluate these policy choices from the time they are first introduced, but since this is both difficult and costly to do, this is rarely done. As a result, our knowledge of how policies compare is spotty at best and extremely poor at worst, allowing advocates for one policy or another to cherry-pick the limited or poor evidence available to make their cases. I would go further. Policy advocacy, as opposed to real policy analysis, thrives as much on what we do not know as what we do know, with ideology and fixed ideas filling in the cracks and spaces in the evidence and analysis. This is the reason why most ideologically based think tanks seem to know the answer before the question is even posed.
W.A. Bogart has spent most of his career teaching and writing about law at the University of Windsor. His sixth book, Permit But Discourage: Regulating Excessive Consumption, delves into the subject of how societies have, at times, prohibited and, at other times, regulated alcohol, drugs, tobacco and gambling. If such excess consumption only harmed the individual indulging, there would be less need for the use of law as a policy instrument. Unfortunately, excess consumption can be extremely damaging to the larger society, from the hurt and dislocation caused to family and friends to the extra healthcare costs we all pay.
Although approached from the stance and training of a legal academician, Bogart admits the limitations of law in either preventing or mitigating the damage done by excessive consumption. In earlier times, when there was a majority consensus that a particular behaviour was morally wrong or sinful, it was easier to use the law simply to prohibit (and criminalize) the activity. Of course, this only worked as long as most citizens’ behaviour and beliefs were consistent with the law. The moment the law is viewed as wrong—that a vice is no longer regarded as a vice—people will find creative ways to circumvent or justify breaking it. Hence the current proliferation of medical marijuana stores in some American states and the common attitude among teenagers as well as baby boomers that smoking marijuana is not really a crime.
As Bogart describes in detail, the North American experiment with alcohol prohibition in the early 20th century failed miserably. The more nuanced regulation (e.g., sales restrictions, taxation, compulsory labelling) that replaced the crude stick of prohibition seemed to usher in an era of relatively peaceful coexistence between drinkers and non-drinkers in society, while the legalization of alcohol cut the legs out from under the illegal booze trade and its culture of criminal violence. Despite the common view that legalization would lead to more civilized and less binge drinking, however, regulation was no more successful than outright prohibition at curbing the excessive consumption of alcohol.
To address this problematic side effect, the disease theory of alcoholism, buttressed by popular movements such as Alcoholics Anonymous, swept the continent by the 1940s. The disease theory assumed that alcohol was only a danger to the minority of individuals who, for genetic or psychological reasons, were unable to control their intake. According to AA adherents, the only effective treatment for alcoholics was to abstain for a lifetime.
The public health model first came to the fore in the 1970s and would eventually eclipse (although not supplant) the disease theory of alcoholism by the end of the 20th century. Public health practitioners and academics argued that many North Americans who would not be described as alcoholics were nonetheless drinking too much, and that this “substance abuse” should be both prevented and discouraged because of its harmful effects. Buttressed by popular movements such as Mothers Against Drunk Driving (MADD) as well as fetal alcohol syndrome interest groups, the public health model put more emphasis on prevention rather than treatment. Spinning off from the public health model, harm reduction policies used education and social marketing to target especially harmful behaviour such as binge drinking, drunk driving and drinking during pregnancy.
After reviewing the case of alcohol, Bogart examines the regulatory means we have used to control the excessive consumption of other legal substances such as tobacco, prescription drugs and even junk food. These other tools include taxation, restrictive marketing (banning sales to children and adolescents), regulating advertising (prohibition of direct-to-consumer prescription drug advertising but allowing the advertising of over-the-counter drugs), restricting vendors (to government sanctioned outlets), regulating place of consumption (smoking bans in public places), required warnings (labels on tobacco products) and identification of potentially harmful ingredients (saturated fats).
While none of these tools has been entirely effective, some have worked well when used in tandem with education and social marketing to reduce excessive consumption. For example, the array of legal and non-legal policy interventions by federal and provincial governments since the 1960s has resulted in a major decline in smoking, from about 50 percent of all adults at the peak of smoking’s popularity, to 20 percent today. According to Bogart, the example of smoking illustrates that policy makers must rely on a mixture of these regulatory and non-regulatory means to slay the dragon of overconsumption.
In XXL: Obesity and the Limits of Shame, Neil Seeman and Patrick Luciani take a very different approach to the subject of excessive consumption. They are strongly against harm reduction strategies that are aimed at populations rather than individuals as well as regulatory approaches that penalize individuals. Both are adherents to the basic tenet of behavioural economics and its preference for “incentives over penalties.”
Seeman and Luciani are policy analysts associated with some of the most conservative think tanks in Canada—Seeman was a research fellow for the Fraser Institute and Luciani is a senior fellow at the Atlantic Institute for Market Studies. Seeman was also a founding board member of the National Post and both are periodic contributors to that newspaper. Strongly predisposed to market- rather than state-led remedies, the authors regularly decry what they view as the ineffective efforts of the “nanny state” in discouraging excessive food consumption and encouraging better nutrition and more physical exercise. They have a particular bone to pick with the public health establishment, those civil servants and academics working in our health bureaucracies and schools of public health (they mention Rebecca Puhl by name) who constantly advocate in favour of healthy living and eating policies, sometimes through education and social marketing policies that shame the fat and obese. Their beliefs and ideological proclivities inform their attack both on what they see as the conventional view of obesity and on the dominant policy responses in North America.
Statistically speaking, we Canadians may not be as badly off as the Americans or the British (at least on average), but we nonetheless rank among the fattest in the rich countries in the world. The authors estimate that approximately 11 million of us are overweight while about 500,000 of us are obese, requiring a clothing size that is double extra large—the “XXL” that is the main title of this book. The rapid growth of obesity, they say, will cause a tsunami of obesity-related heart disease, diabetes, cancer and respiratory problems that will overwhelm the capacity of our public healthcare system. This may be consistent with what public health experts are saying, but Seeman and Luciani fundamentally disagree with the legal and non-legal policy tools promoted by those same experts to reduce obesity. They are especially critical of policies that shame and blame the obese, and here is where it gets personal.
Refreshing in their honesty, Seeman and Luciani admit they have struggled with excessive weight in their own lives. Both have felt the sting of blame-and-shame policies and the attitudes encouraged by such policies. And both have suffered from low self-esteem—even depression—as a result of being overweight. In a recent interview with Maclean’s magazine, Seeman said he shed 36 kilos, about 30 percent of his body weight, while working on this book. There were a number of unusual factors that led to the weight loss, including his decision to become an amateur boxer, and this experience fed the book’s dominant theme: that there is no one-size-fits-all policy solution to obesity, and that any effective policy must allow individuals to make their own choices.
Seeman and Luciani propose the adaptation of a market-based policy advocated by free market economist Milton Friedman—the education voucher. Although there remains great debate in the United States over the efficacy of education vouchers, Seeman and Luciani believe they have had a very positive impact, especially for poorer families. Their “new” idea is the healthy living voucher (HLV) with which Canadians would individually select the ways they would lose weight. These subsidies would be available to anyone, rich or poor. Individuals could choose to join a gym, hire a trainer, enroll in healthy cooking classes or take dance lessons—the choice would be theirs alone. The only condition for accessing the subsidy is that they would have to clear it through their family doctor or similar primary care provider with that professional providing a measurement of progress on a regular basis.
While Seeman and Luciani raise some very valid points about some of the weaknesses of population-level policies, the evidence they rely upon does not always support their arguments. For example, they point to 14 studies on school-based obesity prevention programs and the fact that the evidence in ten of those studies was too weak to draw conclusions, admitting that the other four studies still indicate some benefit, especially for girls, from the interventions. This is hardly evidence of the ineffectiveness of population-level programs. It would have been far more truthful simply to state that not enough is known about the effectiveness of such policies.
Even if part of their diagnosis is correct, their solution is full of holes. To make any difference, particularly considering the universal nature of the HLV they propose, the subsidy would have to be large, so large that it would constitute something on the order of 10 percent of existing public health budgets in Canada—a cool $13.5 billion based on the Canadian Institute for Health Information’s estimate of public healthcare spending in 2010. The authors suggest that at least a part of this could be paid for through a reallocation of public money currently devoted to population-level obesity interventions, but $13.5 billion is already far more than what is expended in total on all public health initiatives and programs in Canada. Not surprisingly, they make the same arguments that public health advocates have made for more investment in their preferred programs—the amount invested now will be outweighed by larger savings down the road. Even assuming that the HLVs are considerably more effective in getting people to reduce the level of obesity over the next few years, it will take many years, likely a generation, to see major improvements in health and reductions in disease and chronic illness. Understandably, governments, and the general public that votes for them, are skeptical about paying hard cash now for a promise of anticipated, but unproven, savings in the distant future. Even a government committed to free market principles would want to see much harder evidence of the benefit to be derived from such an expensive policy shift.
Despite the limits of their policy argument, Seeman and Luciani do make some telling points about the questionability of social marketing efforts that are based on shaming those who suffer from obesity. While the policy of shaming has worked for smoking—in part because there is a growing consensus that almost any level of tobacco use is inappropriate—eating is a very different phenomenon with many more genetic and cultural complexities. Even if vouchers in the form advocated by the authors are an impractical proposition, we can still agree that tackling the growing problem of obesity and overeating will require a more nuanced policy response, one more informed by evidence-based analysis than by policy advocacy.