There has been much talk about New York City’s bold move to ban artificial “trans-fats” in restaurant cooking.

The New York City Board of Health voted yesterday to adopt the nation’s first major municipal ban on the use of all but tiny amounts of artificial trans fats in restaurant cooking, a move that would radically transform the way food is prepared in thousands of restaurants . . . .

Naturally, there has been a backlash from those whose pocketbooks are implicated (just once I’d like to see a business owner say “This is bad for people? Well, I guess I shouldn’t do it then!”). There has also been the predictable grousing about the “nanny state”. However, I think the issue is intriguingly complicated in ways that some other public-health or safety issues are not.

Banning products or activities that are dangerous only by way of people’s overt act in exposing themselves to risk is a controversial business; mandating safety mechanisms in similar situations is controversial in the same way. Such intrusions do encroach on people’s freedom of action, even if only in a technical sense (and often in a much more practical sense). Many motorcycle riders simply don’t like helmets, and many car drivers were resistant to seatbelts. Whether or not we think they are being reasonable, it is unquestionably intrusive to assert a particular correct decision in these matters and then mandate it by law. It requires (or prohibits) behavior under circumstances that seem to go well beyond the classical liberal formula of “prevention of harm to others”.

Such intrusions encroach on another freedom as well - that of self-determination. In evaluating their own risks and making their own decisions, people assert an autonomy that the state, in dictating an answer to the same questions, sees fit to take away from them - and that matters, again whether or not they are making, in some sense, the right decision. People often resent the loss of authority over themselves as much as they do being forced into a practice they don’t approve of.

For these reasons of liberty interest, “paternalistic” regulations - intended to save people from their own bad judgment - are widely opposed. Nobody objects to regulations designed to prevent one person’s bad judgment or recklessness from causing harm to other persons - thus you can’t drive 60 mph in a residential neighborhood, or spray cancer-causing chemicals on your garden. But there is widespread resistance to being told you can’t take risks for yourself in matters that do not affect others. For this reason, historically, public-health or safety measures have been more easily defended in the case of protections from harm caused by others than in cases of regulations mandated “for your own good”. Banning leaded gasoline and other pollutants eliminates toxics that, once released into the environment, cause unmistakable harm that cannot be avoided by those who choose to. Banning CFCs to protect the ozone layer does the same, in removing a harm that affects everyone whether or not they have contributed to the problem themselves. Some regulations were opposed on paternalistic grounds but then approved when justified on public-policy grounds: seatbelts and motorcycle helmets are examples (the argument being that unnecessary injuries from unprotected riders caused a drain on public emergency-room resources - a claim that is probably true but so idiosyncratic in this context that it is obviously merely a disguise for a policy that is fundamentally paternalistic). In general, protecting people from things they do not choose and cannot avoid is the only effective trump of the libertarian streak in the US national character and in modern ethics. (There are counter-examples, however. Water flouridation was a straightforwardly paternalistic public health policy that was heatedly opposed by the tinfoil-hat right wing; vaccinations are mostly paternalistic as well [though they also prevent harm to others by reducing the rate of spread of epidemics]. In both these cases, the benefits were so overwhelming that the programs carried through anyway.)

That gives us a rubric for evaluating (or planning) public health regulations. For the most part, purely paternalistic regulations meet concerted opposition, but regulations that protect people against things they hate but can’t avoid are popular. Falling into the middle are regulations that protect people against things they don’t hate but are still bad for them.

New York City’s other recent public-health earthquake is a case in point. The ban on smoking in all restaurants and (now) bars faced heated opposition. Its supporters were almost entirely public-health afficionados and non-smokers (and the former almost entirely a subset of the latter, so really it was just non-smokers). The arguments against the ban were obvious: it was an intrusion upon smokers as well as upon bar owners and patrons who did not smoke but chose to patronize places that allowed it. Even with the committed support of an aggressive health-nut mayor, the ban did not win through until it was placed on a “harm to others” footing - smoking harmed, not those who voluntarily chose to expose themselves to it, but employees who had no choice about working in an unhealthful environment. Given an altruistic-sounding reason to support it (”save the bartenders!”), liberty-minded health freaks could vote for the ban in good conscience.

But that was not the entire story. Against the public-health argument were arrayed still further harm-to-others arguments (the ban would force the bankruptcy of many establishments, thus putting out of work the people it was intended to help), as well as liberty-grounded arguments (employees were not forced to work in such environments, customers were not forced to patronize them, and bar owners should be free to decide for themselves whether going smoke-free was better or worse for their business). Resolving the issue was partly a question of balancing impacts (would the bar owners lose money from smokers who would, presumably, give up drinking if they couldn’t get a fix, or gain money from people like me who simply couldn’t bring themselves to patronize bars before the ban?; how much endangerment of workers’ health is balanced by how much extra income in tips?), but partly also one of determining degrees of encroachment upon freedom (how much liberty do the workers really have?). It is impossible in a practical sense to commensurate all these competing factors. In the end, it was a question of who told the best story that determined the issue - in current terms, who controlled the “framing”.

Something similar has happened regarding the trans-fat ban. Here the question of impact is clearer: “trans-fats” have decidedly negative health impacts (though it is hard to quantify just how great that impact is; the much-deplored “epidemic” of obesity and poor cardio-vascular health has many causes). Removing them would certainly improve people’s health, and in that sense would be a good thing on paternalistic grounds. But making the case on harm-to-others grounds is harder. You have to argue that people are somehow being forced into eating them against their will, as if they were a form of toxic waste or second-hand smoke. That seems . . . far-fetched.

Or maybe not. Here we get into the dynamics of New York restaurants. For very many New Yorkers, restaurants are not outlets for entertainment or indulgence - they’re lifelines. To people from many other parts of the country, I am sure it would be astounding how frequently the average New Yorker eats meals prepared outside the home (including takeout). The stereotype of the New Yorker who literally never turns on their stove or oven for a year at a time is an absolute reality - and not that isolated a one. The New York lifestyle, the difficulty of getting to work and back and having time left for shopping and cooking, and the sheer ubiquity of places to get fed (cutting-edge cuisine and celebrity chefs are only the most-vaunted parcel of the New York food landscape; they are vastly outnumbered by otherwise faceless, unremarkable, but quite good restaurants of the middle-, low-, and low-low-level kind that dish out literally millions of meals every day) make eating out simply a standard part of a normal day. Which means that a great many New Yorkers are almost always eating meals for which they can’t choose the ingredients. Add to that that most restaurants use unhealthy fats in their cooking, that most items on a typical menu involve them in some way, and most people don’t know and can’t tell from the menu what is actually going into their order in the first place, and it can, in fact, be quite difficult or even impossible for many New Yorkers to make healthy choices on a consistent basis. You can argue that this is reason for them to change their lifestyles, educate themselves, cook their own food, and so forth, but that’s like arguing that people should flouridate their own water if they want it. Technically, it’s possible, but in practice it’s not, and it’s not clear that arguing for everyone in New York to make a massive shift in every aspect of their entire lifestyles - even a healthy shift - when much the same result could be had by simply eliminating a major source of the problem, is the best approach.

So, in New York City at least, banning an unhealthy restaurant ingredient can plausibly be put forth as a public-health measure rather than nanny-state paternalism. That isn’t necessarily the final word on the problem, but it’s an important consideration.

That makes the issue look more like the smoking ban than, say, the motorcycle helmet law: restaurant owners have complained about possible lost business (like 8 million New Yorkers will suddenly learn to cook the first time they get a dry, crumbly muffin? - I don’t think so) and consumers have complained about intrusiveness and loss of eating pleasure, but others have welcomed healthier eating choices. And there are open questions of fact regarding how easily healthier fats can be substituted for the bad ones, and what economic impact this will have.

Interestingly, the ban was modified in response to these practical concerns, being delayed 6 months to give restaurants the chance to manage the switch-over. At the same time, liberty-based arguments, about freedom of choice or freedom to run a bloat-causing business, were ignored. In essence, the ban backers modeled the issue as one in which the liberty-based controversy was easily resolved (i.e., as if the “harm-to-poor-starving-patrons” argument was inassailable), but the practical, fact-based arguments deserved accomodation. As with the smoking ban and motorcycle helmet laws, framing the issue in terms of impact on innocents harmed against their will was the key to pushing through a policy that was undoubtedly motivated by straightforwardly paternalistic impulses. (This foregrounds, once more, New Yorkers’ unusual dependence on restaurant food. A ban of this kind would, I suspect, be much harder to put through in a different city, even if all the other factors were the same, simply because it wouldn’t be true, there, that people had no other way to get a meal.)

Beyond analyzing the dynamics of this controversy, though, we ought to ask whether the successful arguments used in the cases I mention really ought to have prevailed. Speaking personally, I do not strongly favor mandatory seatbelt or helmet laws, though I religiously use seatbelts and think anyone who does not is an idiot (the same goes in spades for motorcycle helmets). I’m convinced that the public-interest arguments put forth to justify those laws were disingenuous, though I’m not enough of a black-helicopter loony to get too uptight about it. I did strongly favor the smoking ban, and am somewhat in favor of the trans-fat ban, though I realize that personal preference plays a large role in both those decisions. I personally hate smoking and smoky atmospheres, and find the ban is entirely a benefit to me (except to the extent that it encourages smokers to be even more than usually discourteous about smoking in public and littering the ground). The trans-fat ban will probably be a good thing, too. But I’m aware that the harm-to-others arguments in these cases, while having some force, are shaky at best (particularly in light of the persistent lack of hard evidence for harm from secondhand smoke). I’m not sure that either rises to the level of a slam-dunk issue like water flouridation or vaccinations, and certainly the public is much more divided on these bans than it is on water or vaccines. I’m also aware of the dangers of creeping intrusiveness, and the slippery slope that such policies seem to reside on.

In the end, we seem to have a situation in which, while the apparent logic of imposing health measures unilaterally is clear enough, its actual implementation seems to have much to do with “framing” and spin - often not even to the degree necessary to win public support, but merely to the point required to give political cover to the decisionmakers. Seemingly respectable considerations of public health operate as stalking horses for paternalistic policies that are accepted in part because they flatter the inclinations of those proposing and implementing the policy. While I believe many of these policies can be justified, I am not certain that all of them have been in an honest and sincere way. And given the nature of the purely (and retrogressively) paternalistic policies coming out of the Bush administration (no contraception, no sex education, etc.), we can hardly afford to have a less honest debate about healthcare issues at this time.