Sarah Darnell, Staff Writer
Recently, Albany County banned restaurants from using trans fats in their food.1 Trans fats are known to increase the risk of heart disease and restaurants can easily replace them with little increase in cost and no loss in taste.2 Not surprisingly, the Health Commission and the Restaurant Association frame the issue differently. While the Health Commission sees the ban as a step in combating heart disease, the Restaurant Association warns that the ban is only the first step in a series of regulations that will soon target some of your favorite “bad” food.3
Predictably, many restaurants advocate for allowing consumers to dictate whether they make the switch from trans fats.4 They argue that if enough consumers stop buying a product because it contains trans fats, it will induce businesses to remove them. Undeniably, the free market system offers consumers the most freedom and businesses the most flexibility. In fact, several companies have already removed trans fats from their menus countrywide.5
Unfortunately, when consumers lack information about the food they eat, the free market system often fails to respond to their needs and desires. If consumers do not know that trans fats are harmful, that alternatives exist, or that their foods contain trans fats, they will not demand that restaurants remove them. Additionally, prior to recent research that revealed the negative health consequences of consuming trans fats, health officials promoted switching to trans fats as a healthy alternative.6 Now, they must not only inform the public about what trans fats are, but also correct the lingering misconception by many that trans fats are healthy. While attractive from a libertarian perspective, simply allowing the industry to wait for consumers to demand change is slow, uncertain, and passes the burden of disseminating information to others.
The individual and societal harm caused by raising levels of obesity and heart disease require that we consider tools to encourage better nutrition, instead of relying on consumers to make healthy choices. On its face, banning trans fats seems an expedient, simple and relatively painless first step. The food industry can easily and cheaply replace trans fats and consumers will not taste the difference.7 Additionally, government need only write the law banning the substance, instead of engaging in an expensive and time-consuming information campaign. However, simply banning trans fats will not solve the problem. While they contribute to the nation’s ill health, high levels of saturated fats, sodium, and sugar present a larger problem and, unlike trans fats, our bodies need these substances.
Possible Regulatory Tools
Instead of relying on bans or consumers, regulators must find regulatory tools that will make it easier for people to make healthy choices on their own.
One problem with the free market approach to addressing the country’s poor health is that consumers lack information about what they eat. To address this problem, New York City recently passed an ordinance that requires chain restaurants to include nutrition information for all items on their menus.8 Instead of regulating what restaurants serve, the city gives consumers the information they need to make healthier decisions if they so choose.9 Although some people may wish to dine on their 2,000-calorie dinner in ignorant bliss and menus may become more difficult to navigate, required labeling would help consumers participate in the free-market more actively without limiting their choices.
Another problem is the lack of healthy choices available in restaurants. Regulators could initiate a series of regulations that encourage consumers to make healthier choices. For example, they could require restaurants to place healthy options prominently on their menus, instead of in a corner on the back page.
Perhaps the best institution for determining the most effective method for combating heart disease is the food industry itself. Like pollution regulators, health officials could set target levels of heart disease reduction and force the food industry to meet those goals.10 Industry itself could then decide whether promoting exercise, changing diets, or some other system best addressed the problem. Regulators would then issue fines to companies that failed to meet their goals. Unfortunately, PBR would be difficult to manage, results hard to measure, and heavily fought by the food industry.
Fortunately, Albany County’s ban will likely cause few problems, but future regulation should focus on helping people make better choices. Government should not require eating healthily, but should help make that choice easier.
Eric Schillinger & Lauren Prager, editors.
3 Jill Bryce, County Bans Trans Fats at Eateries, Daily Gazette, Aug. 9, 2008, available at http://www.dailygazette.com/news/2008/aug/09/0809_fatban/; Steve Barnes, Trans Fats: The Legal Skinny, Times Union, Oct. 6, 2008, at A1.
4 Barnes, supra note 3.
5 Id.; MSNBC, KFC, Taco Bell Finish Switch to Trans-fat-free Oil, MSNBC, Apr. 20, 2007, at http://www.msnbc.msn.com/id/18383687/ (last visited Mar. 22, 2009)
6 MayoClinic.com, Trans fat: Avoid this cholesterol double whammy, http://www.mayoclinic.com/health/trans-fat/CL00032 (last visited Mar. 22, 2009).
7 Barnes, supra note 3.
8 Nkechi Nneji, NY Orders Calories Posted on Chain Menus, CNN.com, at http://www.cnn.com/2008/HEALTH/diet.fitness/01/22/calories.menus/index.html (last visited Mar. 1, 2009).
10 Cary Coglianese et al., Performance-Based Regulation: Prospects and Limitations in Health, Safety, and Environmental Protection, 55 Admin. L. Rev. 705 (2003).