This week's Daily Record column is entitled "It's for your own good." The article is set forth in full below and a pdf of the article can be foun here.
My past Daily Record articles can be accessed here.
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It's for your own good.
“Of all tyrannies, a tyranny exercised for the good of its victims may be the most oppressive. It may be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end, for they do so with the approval of their consciences.”
— C. S. LEWIS
Over the last over 40 years, our government has enacted laws for the good of its presumably dimwitted
and uninformed citizens.
In 1965, the federal government first required that health-warning labels be placed on cigarette packages. The warnings became more explicit in 1984 with the enactment of the Comprehensive Smoking Education Act. The goal of the legislation was to provide consumers with information regarding the health risks of tobacco.
In an effort to reduce head injuries caused during motorcycle accidents, the New York State legislature passed a law in 1967 requiring that all motorcyclists wear a helmet.
Our state government saw fit to enact legislation in 1984 requiring the use of seatbelts in motor vehicles. The law was enacted for the good of New York’s citizens, the rationale being that it would reduce the number of deaths caused by automobile accidents.
In 1989, a federal law became effective which required that all alcoholic beverages have warning labels informing consumers of the dangers of drinking and driving and of the effects of drinking alcohol during pregnancy.
That same year, New York enacted the Clean Indoor Air Act, which prohibited smoking in auditoriums, elevators, gymnasiums, food stores, shared taxicabs and limousines. In 2003, the antismoking ban
was expanded to restaurants, bars and the workplace. Again, the law was intended to benefit New York residents, both smokers and non- smokers.
Most recently, a New York City Health Department regulation requiring that fast food chain restaurants disclose caloric information on their menus was upheld by Southern District of New York Judge Richard J. Holwell in New York State Restaurant Association v. New York City Board of Health, 08 Civ. 1000. The stated goal of the legislation was to hinder the “obesity epidemic.”
Last week, Judge Holwell concluded that the caloric disclosure requirement of Regulation 81.50 was reasonably related to the government’s interest in reducing obesity and thus did not infringe on the
First Amendment rights of fast food restaurateurs:
Regulation 81.50 compels only the disclosure of ‘purely factual and uncontroversial’ commercial information — the calorie content of restaurant menu items. Furthermore, ... (it) attempt(s) to address a state policy interest by making information available to
consumers, consistent with the First Amendment objective... Therefore Regulation 81.50 passes constitutional muster as long as there is a ‘rational connection’ between the dis-
closure requirement and the city’s purpose in disclosing it... (A) regulation may be reasonably related to the goal it is intended to promote even if ‘it does not get at all facets of the problem it is designed to ameliorate,’ ... Regulation 81.50 is an entirely reasonable approach to the city’s goal of reducing obesity.
And thus another law enacted for the benefit of the feckless New York State consumer successfully withstood constitutional scrutiny.
Unfortunately, I’m unsure whether to declare victory or foul.
On the one hand, it is indisputable that some people have a tendency to make horrible lifestyle choices. Arguably, access to information regarding their options might assist them in making better decisions for themselves and their families. Accordingly, requiring large corporations to make relevant information regarding their products readily available is not necessarily objectionable.
However, our government’s increasing tendency to require its citizens to comply with paternalistic mandates enacted for “their own good” is unpalatable at best.
Likewise unappealing is the self-interested motivation lurking behind the arguably laudable First Amendment claims of the New York State Restaurant Association: unadulterated greed.
I am thus resigned to ambivalence on the issue of whether fast food menus should include caloric content information. For, the inescapable fact remains: regardless of whether you are swayed by free speech claims or public health concerns, whenever the average citizen is pitted against large, faceless entities, be they corporate giants or the government — the little guy rarely, if ever, wins.
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