This Article critiques Professor David Friedman’s article, Public Health Regulation and the Limits of Paternalism, and sets forth an alternative view of the limits of anti-obesity public health paternalism. Specifically, it critiques Friedman’s classification of public health interventions based on how coercive the intervention is, and offers an alternative construct to analyze paternalistic public health interventions. The alternative approach, developed by Mark Hall, distinguishes between (1) “old” public health interventions that target specific pathogens or toxins, and (2) “new” public health interventions that target upstream behavioral risk factors and ecological factors. This Article then elaborates on the main example that Friedman uses to illustrate his claims about coercive public health paternalism, the New York City portion cap on sodas and other sugary drinks. By comparing Friedman’s approach and the alternative approach, it shows that the latter better explains the case that invalidated the sugary drink portion cap rule. Moreover, this Article challenges Friedman’s assertion that the case is a death knell for public health paternalism. Although the New York Board of Health now faces formidable challenges with respect to promulgation of new public health regulations, public health advocates in New York City can continue to advance the new public health goal of reducing obesity and diabetes in New York, by striving to foster greater political consensus regarding the legitimacy of that goal and the best means of achieving it. Beyond New York, in jurisdictions with less severe case law constraints on agency action, state and local public health agencies may have greater latitude to promulgate and enforce new public health regulations, including anti-obesity regulations.
Pratt, Katherine, "Cigarettes vs. Soda: The Argument for Similar Public Health Regulation of Smoking and Obesity Response" (2014). Connecticut Law Review. 260.