Wendy Mariner

Document Type



Many critiques of public health regulations assume that measures directed at industry should be considered paternalistic whenever they limit any consumer choices. Given the presumption against paternalistic measures, this definition of paternalism puts government proposals to regulate industry to the same stringent proof as clearly paternalistic proposals to directly regulate individuals for their own benefit. The result is to discourage regulating industry in ways that protect the public from harm and instead to encourage regulating individuals for their own good— quite the opposite of what one should expect from a rejection of paternalism. Arguments favoring “soft paternalism” or “asymmetric paternalism” to justify some regulatory measures exacerbate this trend. This Article argues that most public health regulatory measures directed at industry are not paternalistic at all, and require little, if any, justification beyond that required by law. It concludes that definitions of paternalism grounded in behavioral economics proceed from a flawed premise that muddies the debate, narrows the range of reasons for regulating industry, and instead encourages harder paternalistic regulation of personal behavior.