Electronic copy available at: https://ssrn.com/abstract=3023703
CHAPTER !/
Limits
Andrea Freeman
The U.S. ~~'''ML~uu classified as a Yq~<:;LaUJLC
crisis. In the following bill, pro-
hibited the federal gO'\lernnlerlt from the amount of salt in school lunches
and created to whole for and tortillas
extensive research prOlblems. These two ielIilsia1tive '''/,;,H'''''-'UU." 1 UHf"_U. .... u progress toward solv-
health issue.
Faced with these of lillliLOLLlU'l1;:',
Center for Behavioral Economics in Child Nutrition. The center's mandate is to con-
sponsor, and disseminate research on food with the of in-
corporating behavioral economics into the federal food programs, includ-
the National School Lunch and School Breakfast the
Nutrition Assistance
which contribute sig;niJl1ccmtly rPfWPoPI1to only one tool among many available to the gov-
health outcomes. For the USDA uses
lU<::l~HlfJ" with fast food '-Ul.lifJdH'C;;:',
to increase
meat, and soy \,,"""."''''0<
from the ,.r~l1tp'rtl1rp which is a form of libertarian
that focuses on the environments in which make choices.
124
011<yaF·~t~ that financial concerns,
goodwill, compel the use of
ence consumer behavior. Health concerns, in contrast, tend to
proven to influ
less
The Cornell Center's studies indicate that UYU!".UL,;,
'-HeH1i,,>H'/", costs, has the to influence food selection. These studies do not,
h"'''<''",'r demonstrate a link between and
health outcomes. even wh~n experiments show that behavioral economics
can positively alter food the USDA has not to
school lunchrooms or other federal food programs a.'-'-UH~Hl;,,>ly. "U'l1<O'LH<Ol<O;:''',
continues to invest in behavioral economics research and favor
ism to boost health nutrition. This the three different forms
in the food policy the behavioral economics
studies of the Cornell Center. It then discusses the of U~~6'''"6 stratE~gHoS to
reduce ;rnnr<~"p health outcomes within a number of constraints. It inter
rli"nrnnnrj'jn1n"j'p harm these constraints inflict on
communities and concludes
tic framework.
Paternalism in Food
prc)pa,slTIlg a shift in food to a harder
The a broad range of tactics to meet its llULU,.lVl1<U,
Most of them some form
the desire to influence or alter behavior in their own self-interest. Other
stratE~gH~S reflect a mandate to create or sustain a market for subsidized commodi-
ties or to the demands of the food Some measures seek
to alter the method of and others strive to
affect the choice itself Paternalistic J.U.'V--V'." With hard
makes the choice for the consumer, or creates
HUU""!". a different choice. Soft
Behavioral Economics and Food 125
Electronic copy available at: https://ssrn.com/abstract=3023703
n:;"Jl:YI,pnt method innovations. Both forms of soft
Gentle Soft
strive
while
f.lll!ll"lUY of nutrition labeling re-L"'UellHI! and Education Act and
and research into choice archi-tecture, of the Cornell Center. The Cornell Center the effects on student food selection of a of llWU\!JLH\!
11l'-lUUH1)!. pay-ment foods" (foods that influence selection by their presence, even though are not themselves se-
branding, and food naming Center for Behavioral Economics in Child Nutrition 2014). This research relies on a
number of behavioral economics that may affect food selection.
The of the Center's are as from a desire for immediate cr,.o,tih,,'~_
is an obstacle to healthy food ~eleC;l_lUJ:l; because they value what
items (3) them to use up an amount u,-"")',ua,,c:u
into another "ac:c011nt."; able costs;
items with fixed costs over ones with vari-
on emotional such as stress '-V~"H11'"Ye pn)ce:ssing; and (6) environmental
influence food choice Mancino, and Wansink conditions that affect food selection are reactance, an aversion to choices that others appear to force on us and selt-aittn.bU1tlOlCl, the associated with
and Wansink
UHUC:1LlY1LHV pnnc:tp1(;S and the Cornell Center's research-
ers students and other food program partH:ipanlts overcome their biases. One of these is the of food. Pre-selection counters with self-control and UllVU1M v
make instead of errlOtiortal, Wansink 2013). Another is the creation of a default fries in school LUL"'-ULV,"'1l1~ (Just and Wansink For food
126 Andrea Freeman
center proposes ue"1~11dllLll~ take of the mental
to
"V>'~U',LUV, and Wan sink 2007). In lUIJlcrll.UUJlll~. \JeIIHlllUl~ n''''rY,,,nt
items nr,,,,..,,nh,c
foods and accessi-
(Just and Wansink 2009). Smaller tables
and amount of food consumed
more to a desire to choose better and De Castro
The Cornell Center also tests the effects of some choices al-
One removed chocolate milk from eleven school cafeterias in
and Wansink 2014). As a result, students in those schools drank 10%
more milk. Their of both sugar
and calories decreased. the concludes that chocolate milk should
remain in school cafeterias. It further recommends the position of white milk
to the front of the cafeteria and that one-third to one-half of the milk on dis-
is white.
In another study, researchers sent an email '-V,CLCU.UU,"'I'. a nutritional card to
the students from to twelfth in an
Just, and Patterson The
how many fruits, and a la carte items their children
selected from the cafeteria every day for six weeks. The compares the food
choices of students whose received emailswith a control group. Children
whose received the of fruits and
bles while chocolate chip cookie 56% The study
concludes that to influence their children's choices is easy, inexpen-
and effective.
Other studies demonstrate that convenience and affect food selection.
For slices instead of whole increases sales
sink et al. 2013). Children select more when a character icon appears with the
(Wansink, Also, adults may be more willing to
foods that have names, such as "Satin Chocolate in-
Cookies"
and "Grandma's Zucchini Cookies" instead of "Zucchini
Itt(~rSl1m, and Painter 2005). The Cornell Center views in-elements of food selection. This na,-cnortiua
nutritional information's in food Under the
with more than twenty outlets
definition of "restaurant" includes
stores 79, no. 230 2014). These
closer in line with food l1WLllULa"
Facts"
YUJ,UIJ,ldl.HY post
other nutritional content.
Behavioral Economics and Food 127
Electronic copy available at: https://ssrn.com/abstract=3023703
Choice architecture and nutrition are tactics
111JU11111CU, if any, costs on consumers, 1U",U.UL.lU1.l", and corpora-
the individual's to make his or her own
Soft Paternalism
AI2:Qn~ssive soft also maintains choice but creates
centives for individuals to make food selections '''' ""l''' and it seeks to influence consumers strat-
CHHJi',JVC:U to sell subsidized which involve substantial eXjJeIlldi-t"V'n~'''A'' dollars. soft fJdl.t:n.ldlJl~Hl
on consumers and as to simply an emotional or behavioral one. These methods therefore tend to be more effective than the intellec
tual and soft The of subsidized com
paternalistic because it advances the n .. ,.,yy>,.,.T;'H., certain agricultural industries instead of the individual's self-
interest in good health. to the extent that individuals' interests are
with their these tactics are that ad-vance the common good also benefit the UllHVIU~ld.l.
Several scholars advocate for the imposition food taxes" on either consum-
ers or manufacturers to make food more affordable in LU.!U.Jdll~C'H and to correct for the low cost of fast food subsidies, other countries, most
control harmful food the United States of
measure 2016). In the City of
municipality to impose a soda tax (Goetz 2014). Studies of this tax will indicate its
IJU"CLlUcU efficacy in soda Research to date demonstrates that
increases deter some Americans from but minor
do not affect consumer behavior (Golan, Mancino, and Unnevehr
may be more LC<'IJU'll",V
another form of ag~(re:;sh'e
\..V1111-',"111e", which argue that First Amendment commercial .... u;."-"'"<:;c: freedom in
and France restrict food adverdirected at children (World Cancer Research Fund International
gress has failed to pass similar bills modeled on World Health
lines and American fiC;dUeUl} of Pediatrics recommendations. So
reTJre:serltlrlg food and agencies that oppose these bills have lobbied intervention. An excep
the advertisement of
128 Andrea Freeman
ucts in school lunchrooms would rather than foreclose CU!ll1~JdlJllC~ ~rl,,,,w+;C;y;
for ads for Diet but not Coca-Cola. The USDA's to dairy cOllSUmrJticlll
form of agl~ressble soft ~dl'C1.11d'.l~lJl1, To reduce the
from the federal Guidelines' advice to consume low-fat
farmers' check-off program to establish a
Department of DMI created the
hiU'pntv-vp:~r "Got Milk?"
milk moustaches. It also entered into covert
celebrities with .. ty,proh1lnO with fast food compa-
nies to devise new
CU·'\..11.""",'" American ~~,"'~"~u with chains to set up :>dJ:UI-"Ul.lg orlodluc1ts across the
succeed at consumer be-
havior. That is opposes their when threat-
ened with reduced sales, and the ~VVC;'.Ulll<:;J"" seeks to hide its use of these tactics when
run consumer interest.
Bans and restrictions reTJreSeIlt the hardest form in food
gress, state and bodies have
or limit food in~!redi(,nts, based on their harmfulness to health or other reasons, such
as ...... V.")<.A.""" ho'vve,rer. is generally reluctant to harmful foods. the U.S. Food and Drug Administration remov-
trans fats from its as safe" This proposal came
more than fifteen years after medical research revealed that trans fats cause 7,000
deaths and 20,000 heart attacks in the United States every year Food and Administration Instead of to these discoveries with a ban, as other
the FDA took the less of imposing 1d.velU'!':
LU1.lldlU1Hl'; trans fats over a Food and
tration The last time the FDA declared a food additive unsafe was in
the artificial sweetener LY'"l<lUl<W:: due to its links to birth
when it banned
bladder cancer,
and liver There are many food imrre;iients
banned in other countries, and in common usage in the United their links to serious health issues such as brain cancer, nerve
cell and birth defects. These
Behavioral Economics and Food 129
Electronic copy available at: https://ssrn.com/abstract=3023703
Calton are in a range of from M&Ms to milk to
macaroni and cheese.
State and local IlII'lt::"l~, on the other have
restrictions. states ban the sale of unpasteurized milk and Far-
quhar California and New York City banned trans fats from restaurants
lic Health Law Center New York Michael Bloomberg to ban
the sale oflarge but a York
Statewide Coalition of has a law pro-r"TW"C""~ hard
for Missis:sippi
govel:nrne:nt can place restrictions on
location, amount, or consumer. For the FDA some limits on the amounts of sugar, and sodium in sold in school H",·n.-'l;;nn
such as sodas and sports in 2015
J/VVUj. These follow on the heels of states,
and New that restrict the amount of fat
and sugar in that school lunchrooms sell to students (CA S.B. 12 Rock A San Francisco law conditioned the inclusion of toys in McDonalds'
Meals, marketed to on the meals' certain nutritional stan-
dards (Park These restrictions constitute hard paternalism because limit
consumers' control over their food choices.
Government subsidies also function as a of hard because finan-
cial support for certain foods creates high supply levels. Subsidization lowers costs for
farmers and which allows them to harvest and more. Wider avail-
of the food item combined with lower costs leads to lower
which induce consumers to more. The corn, soy, and wheat industries
receive substantial from the USDA, to their presence in a num-
ber of available in grocery stores, restaurants, and federal food programs.
and Paulson Collins 2014; Kick The USDA also distributes
\..VJl~.a.!l1JlH14 either or soy, free UH.UUJ,!H its nutrition program for Women,
UUUUL.", and Children (Freeman
the corn they f.'H"-"U .. <o UlIVdldldUllt:
fore sell this corn to other
which use drinks. This interde-
which may
account for the reluctance to ban them from schools.
130 Andrea Freeman
Limits on the Effectiveness of Centle Soft Paternalistic Food
in soft Ildl<::l1.ldH~lU, SP(~cijlcaJl
tion faces obstacles to the effective reform of
broader goal of improving health outcomes The Cornell Center identifies income, and information as the three major elements of food selection
Mancino, and Wansink 2007). Convenience and taste are also Re-search that for unhealthy food are "sticky," re-
sistant to behavioral and for a number of
reasons. One is that food devote the
ideal combination of sugar, and fat that will make food
The and comfort induced the
to individuals who on
Be-
havioral economics in addition to social
conditions and also reduce the to im-
prove food selection and health through methods. Information about the nutritional content of delivered on menu boards and
may affect food selection but does not appear to health out-
comes. One study adults and notice calorie counts in
restaurants, they do not alter their choices because of them (Harnack et al. 2008). Behavioral economics two for this. First, information
simply may not have the power to increase self-control. Individuals tend
toward in food and environmental factors at the point of pur-posltlOIllng of often exert influ-
have a limited
do not have room for it in their to process new
heads at the moment that confront it.
Another calories can lead to healthier but that
item, such as fries or a
and Loewenstein reveal no decrease in intake of saturated
research indicates that nutrition information is most valuable to consumers
who are to no overall societal benefit Wis-
Downs, and Loewenstein 2010). This outcome is to metric et al. 2003), because the information affects those
who appear to be full at all on those
experiencing bounded LU'J"~.LUl". might, have a effect on consumer behavior if its mes-
sages were clearer. The former head of the David a radical
Behavioral Economics and Food Policy 131
Electronic copy available at: https://ssrn.com/abstract=3023703
UH'''-''CU" that would list the three "u,.c;u,.~, the number of and the amount of additional inc'~",rli"wl-c
of each 2014). This '-VJ,HIJLtlltlJL1HL'" of the nutrition label and lead to
from 98% to 89%.
labels coded with
~lg.lHJllL'Ull structural constraints on the
Price and income are two ael:ennlfle food
hood, access to
"",,_,yua,1". childcare. The IJV"""UaJ
The J."',aLHJll~lHJJ hpjc"">"n
IJULLJ.l"",t on a
of grocery items in a U<;;'.l<UUUl
if fast food is the
on trans-and have time to cook will eat it. In these and other ways, a ~"~or,~'<
sO(:ioeC<)llClmic status and race, both correlated to and from
Social and economic constraints render the nutritional content of government-
food Food assistance is essential for the 50 million
2014), the 31 million
forces environment outside "Cl.'U()lS.
rural areas, the government has the power to act
nutritious food in the sites where it exercises control.
the market operates
to un,aertUJld~~d
132 Andrea Freeman
and receive access to classrooms and cafeterias in return (Freeman
H::'dllUll~WIIJ with the
door" between Food compa-
nies' resulting influence manifests in many areas of food including the
rlf'veJopm~mt of standards for school lunches and the recommendations by
Guidelines 2007).
Do,rtlil)nl!te Racial and Socioeconomic
The harms arising from control over food policy are have a na<~~ti"" impact on certain communities. For "A"H"f.W~'
subsidized commodities to consumers jJ"H"UU fast
and sweetened harms lU'Y-lJ,n-lHH'<O,
ban communities of color. Individuals have diets high in fast
food and foods due to structural factors that include lack of access to
foods in their neighborhoods These groups also rely on food
assistance programs such as school lunches and food banks America 2010).
Health data reveal racial in food-related illnesses and
Latinos, Native and other racialized groups "'''ILL<eIIH'""
serious food-related conditions such as cancer, heart
blood pressure et al. 2010; Center for Medicare Arlvo,r;Jc:v
for Health Care Research and Quality The
on socially and iJUJllU'~<U'y individuals of food policy is a
stitutioIlal. ~votpnni('. food-related action or policy that
debilitates a subordinated group Food the-
ory attributes racial and socioeconomic health to
appear neutral harm vulnerable individuals.
about by
Blacks and Latinos as
embodied in such as the "welfare queen" and the
the that health to individual attributes.
focus on behavioral economics embraces the of health
IJ"Jl~UH'U choice. Behavioral economics research's role in food policy
is to use resources to discover how to alter individual in
one's own interest. Annnlachir12 food from this veils the structural
factors that create and enforce the of food them to UlS::lULI"i;il
Behavioral Economics and Food 133
Electronic copy available at: https://ssrn.com/abstract=3023703
from view as health Racial ~t"'r"r'+"n;~ tural reform would be both irrelevant and
ioral economics appear more apPTCmr'iate. has some potential to
economics
it will not be the choices of
I economics without enact-aws and to the health of who
food programs therefore represents a form of food
social welfare calls for a . . response we should give It senous 2013 P d' d . . ' oor let an exercIse overtook smok-
as the leadmg cause of premature deaths in the United States in 2014 Center for Chronic Disease Prevention and Health Promotion The ber and deaths associated with poor
situated nations et al 'th' . WI racIal
to the need for direct interventions in the form of hard pa-ternalistic measures. The USDA should alter b 'd' fl
A~ U.LCU «" SU SI les to re ect
the aU.tueJ"'-t:
'-V,l1UICl.Ul~ roles It should be free
lobbying and door positions.
The USDA should also transform school ACU,''-HlO" by choice
its conclusion healthy food choices. Faced with this hungry students will eat. th USD h e A S ould shift its resources away from
and and toward that would promote the and
food to . d ~WCULJU servIce nutrition assistance programs. As a first
the USDA should recogrlize the limits of and health.
for Healtheare Research and
Racial and Ethnic HUUVJ,llV
NHDR."
Sara N., Julia A. Seanna Vine, and Y. Claire Wang. 2014.
and Caloric Intake among US Adults, Overall and
Health 104:3. UU]J:I/<lJprl.ap'hallUb.!icatiO!ls.o,rg/,doi/
134 Andrea Freeman
consumer over in-
among
and
Boyer, Dave. 2014. "That's Rich: ton Times, 7. hthn.II"',,''''·m~ohi[lgt()iltim'es.(:ona/nLeVli's/'-~m41
Jones, June 23. nttP:/,!W'NVIi'.m'OITIlCfjon,es.(;OnrllcnVlHJlllUC,"UI
-mcdonalds-taco-bell.
Calton, Mira, and
Primal
Loewenstein, Ted and
Matthew Rabin. 2003. "Regulation for Conservatives: Behavioral Economics and the
Case for of Pennsylvania Law Review 151:
1211-54.
lJemo'Crilcy. 2013. "National Corn Growers Association." Source-
_Association. Center for Medicare AnVn('~('v
Action Forum.
Jonathan, and Nick Paulson. 2014. Risk and Price Loss
Luveldve in the 2014 Farm Bill." FarmdocDAILY. Fpl)rl1~rv 20. http://farmdocdaily.illinois
JV~:"UH'. 2014. "Grants &
Fields, Scott. 2004. "The Fat of the Land: Do Subsidies Foster Poor Health?"
/JOY'miN'till,>< 112, no. 14:A820-A823. nHlp:IIWV.'W.llCD!.lll.m.lmn.gov
~m'~uu", Nutrition of Standard Menu Items in Restaurants and Similar Retail
Food Establishments." 2014. Federal Register. December 1.
-restaurants-and-similar-retail-food#h-14.
Freeman, Andrea. 2007. "Fast Food: Poor Nutrition." Law
Review 95:2221.
2015a. "'First Food' Justice: Racial in Infant as Food U!J'/Jlt''''Ul1.
Fordham Law Review 83:3053, 3068. --. 2015b. for Food Consumers: Nutrition LdluellHg and Food OpprE,ssi,on.
American Journal and Medicine 41:315-30.
2013. "The Unbearable Whiteness of Milk: Food U]JIDn~ssjlon and the USDA."
of California at Irvine Law Review 4:1251, 1253.
--. 2015e. "The 2014 Farm Bill: Farm Subsidies and Food Uppn,ssi,on." Seattle University
Law Review 38:1271, 1280.
Behavioral Economics and Food Policy 135
Electronic copy available at: https://ssrn.com/abstract=3023703
Golan, Elise, Lisa Mancino, and Laurian Unnevehr. 2009. "Food
Sonam. 2014. "The Effects of Pre-Selection and Behavioral
Selection by Middle School Children, Association of Public
News.
Check the List of
on Food Item
and ManageIVl,ul"genHmt. November 7.
Hanks, Andrew, David Just, and Brian Wansink. 2014. "Chocolate Milk COnSE!quen<:es: A Pilot the COJtlseqU€!noes
. 0091022.
--.2013.
IPMC2621234/.
and Administra-
A. McClave. 2010. "The
Just, David R., Lisa Mancino, and Brian Wansink. 2007. "Could Behavioral Economics Diet
Economic Research 43. http://wwvv.elrs.tlSda.g:ov.lm.edia Just, David, and Brian Wansink. 2009. "Smarter Lunchrooms:
Improve Meal Selection." Choices 24:3. http://W'w1.'r.c1lOj,ces:m'lga.zirle.()rg/magilZinPI~rti,rlp
Kessler, David. 2014. "Toward More Com[lre:hellsj've M",1;";,",, 371:193.
1174331.html.
Andrea Freeman
Lambert, Kelly Gurley, Tara Neal, Jill Noyes, Parker, and Pamela Worrel. 1991.
"Food-Related Stimuli Increase Desire to Eat in Satiated and Human
McCormick. 2001. "Americans Crave Meats and Sweets." Press release.
Fat: How the Food Giants Hooked Us. Random House. New York .
vvairlillIlll about Fat, U.S. Pushes Cheese Sales." The New York Times,
November 7. sec. AI. httD:l.lw·W1.'T.n'vtJlmeS.comll L,IU1V/
Tobacco Use." Centers for Disease Control and Prevention. httn'/lw'iNW
Idata statistics/fact_sheets/fast_facts/.
Nestle, Marion. 2007. Food Politics: How the Food Nutrition and Health,
Revised and Expanded Edition. of California Press. Oakland.
New York Statewide Coalition v. New York City of Health and Mental
O'Connor, Anahad. 2016. "Mexican Soda Tax Followed
6. ntt]):II'NelI.Ol':Jg~ .. H
Pierson, David, Tiffany Hsu, and Monte Morin. 2013. "FDA Action Would Ettectivelv
Trans Fats." Times, November 7. hl"Tn'//orl"f"IP<
Ibusiness/la-fj-fda-trans-fat-20l31108.
Public Health Law Center. 2009. "Transfat Bans: Policy
Use of Artificial Trans Fats in Restaurants." William Mitchell
Puhl, Rebecca, and Chelsea Heuer. 2012. "The of A Review and
17(5):941. http://onlinelibrary.wiley.com/doi/lO.l038/oby.2008.636/full.
i:>alTIjJJ.mg Healthier Foods: It May Be Hard Sell to Feed Kids Well." LA
News, 23.httD://WWv~tlleIre€:1l
+FOODS+IT+MAY+BE+HARD+SELL+ TO+FEED+KIDS+WELL.-a0136578439.
Behavioral Economics and Food 137
Electronic copy available at: https://ssrn.com/abstract=3023703
Shanker, Deena. 2015. "Milking It: How the US Government McDonald's Climb Out
of its Sales Rut." Quartz, October 29.
Story, Mary, Karen and Simone French. 2006. "The Role of Schools in
Prevention." Childhood Obesity 16:111. Stroebel, Nanette, and John De Castro. 2004. "Effect of Ambience on Food Intake and Food
Choice." Nutrition 20:821-38. Sunstein, Casso 2013. "The Storrs Lectures: Behavioral Economics and Paternalism." Yale Law
fournaI122:1826-85. A. Lauer, and David B. Evans. 2000. "Measur
Performance for 191 Countries." World Health Organization
GPE Discussion No. 30. U.S. of Agriculture. 2010. to on the National Promotion
and Research and the National Fluid Milk Processor Promotion Program 2008
Program Activities." 28:4.
--.2014. "WIC-The
U.S. Food and
Consumer
Administration. 2013. "FDA Targets Trans Fat in Processed Foods."
November 7.
lucm372915.htm.
--. 1994. "Nutritional ~u"~", .. ,,
J"Y''''-,''<U,lUJ,<l'' N. 2008. "Do Nutrition Labels
Economics 17:695-708.
Dietary Outcomes?" Health
Fro,m-I-!omf' Sector, an Economic
Assessment." U.S. Df'na'rtn1f'rlt
Wansink, Brian, David Just, Andrew Hanks, and Laura E. Smith. 2013. Fruits:
Pre-Sliced Fruit in Schools Increases Sales, Selection, and Intake." American Journal of
Preventative Medicine
==2473208.
Archives and Adolescent Medicine
.cfm?abstract_id==2079828.
Federation
1322.1.
Andrea Freeman
,,,,,,,,,,,,,v Healthier Choices through
Education and Behavior Poster Abstracts
Watanabe, Teresa. 2011. "L.A. Schools' Healthful Lunches Panned
Wisdom, Jessica, Julie S. Downs, and Loewenstein. 2010. Information versus Convenience." American Economic Applied Economics
Choices:
January 20.
World Cancer Research Fund International. 2014. "Restrict Food A ""PT'n "lncr and Other Forms
of Commercial Promotion." June 11.
Economics and Food 139