CONFERENCE REPORT
Who’s afraid of the nanny state? Freedom,
regulation, and the nation’s health
Sydney Law School and the Charles Perkins Centre at the University
of Sydney have co-hosted a unique, interdisciplinary conference
entitled Who’s afraid of the nanny state? Freedom, regulation, and
the nation’s health.
Fear of an emergent nanny state is a familiar theme in debate
about what governments ought to do to protect the health of the
community.
According to Professor Roger Magnusson, who co-hosted the
conference with Professor Paul Griffiths, nanny-state rhetoric
functions as a kind of “check mate” in public debate, and a slogan
against the very activity of government itself.
The conference, which paired University of Sydney researchers with
leading scholars from Scotland, the United States, and New
Zealand, also showcased the contribution that the humanities and
social sciences can make to the Charles Perkins Centre, which aims
to ease the burden of obesity, diabetes and cardiovascular disease.
Themes of the conference ranged from marketing to political
philosophy, and from law and public policy to politics.
MARKETING: How do the food, alcohol and tobacco industries shape
consumption choices?
The conference was structured around four themes. In a public
lecture on 28 April, Professor Gerard Hastings OBE, from the
University of Stirling and the Open University, told the audience
that marketing is ubiquitous, and is “having a profound impact on
every aspect of our lives, our communities and, increasingly, our
planet”.
Professor Hastings pointed out that on one level, marketing rhetoric
puts consumers in the driving seat: it emphasises consumer
sovereignty, consumer choice, and customer satisfaction. “It all
sounds most agreeable”, he said.
Nevertheless, food, alcohol and tobacco marketing are implicated in
industrial epidemics of chronic disease that are now the leading
causes of preventable death.
Many of these diseases have their origins in marketing to children.
Children are an important target for marketers because they have
their own money to spend, they influence their parents’ spending,
and they will grow up to be consumers themselves.
The consequences of this ethos are not surprising; as the U.S.
Surgeon General pointed out in 2012 that 88% of smokers began
as children.
From the soil sprinkled on potatoes in the supermarket, to Diageo’s
multi-million-dollar advertising partnership with Facebook – which
turns consumers into marketers, albeit unpaid ones – marketing is
all-pervasive.
In Professor Hastings’ view, this marketing matrix subtly robs
individuals of their capacity to make the kinds of choices they might
otherwise like to make as autonomous individuals, perpetuating
instead a world that is characterised by vast inequalities in wealth,
the manipulation of children, waste on a colossal scale and
unsustainable depletion of global resources.
Professor Hastings reminded the audience that Wal-Mart is a larger
economy than Sweden or Saudi Arabia, while Exxon Mobil is larger
than Denmark or South Africa.
Professor Hastings began his lecture by quoting the beat poet,
Charles Bukowski, who wrote: “Your life is your life; don’t let it be
clubbed into dank submission”.
Professor Hastings suggested three strategies for individuals and
communities to reassert their autonomy. Firstly, be critical: be alert
and knowledgeable citizens.
Second, tell our own stories: engage in the uniquely human
challenge of finding transcendence and meaning in life that avoids
the “bogus liberation of consumption”, and the spiritual vacancy
that comes with it.
Thirdly, only connect: link our stories, and move towards a societal
transcendence that pays attention to the distress of the
marginalised, and inevitably, disrupts the way things are. To quote
Bukowski: “the more you learn to do it, the more light there will
be”.
POLITICAL PHILOSOPHY: When should government act to protect
health?
The first session of the conference on 29 April featured Professor
Philip Pettit, Laurance S Rockefeller University Professor of
Politics and Human Values at Princeton University, and
Distinguished Professor of Philosophy at the Australian National
University.
According to Professor Pettit, nanny state rhetoric reflects a
libertarian or neoliberal perspective that frames the proper role of
the state as being a “night watchman”. The state’s role is to
establish a basic framework of law and order. However, under the
night watchman ideal, freedom is understood in terms of noninterference by the state: libertarianism celebrates the rugged
individual.
Professor Pettit’s paper offered a critique of libertarianism, drawing
on what is sometimes called a neorepublican model.
Neorepublicanism envisages freedom not as the absence of
interference, but in terms of freedom from domination – from
dependence upon the will of someone whose greater power and
resources enable them to interfere arbitrarily with the personal
choices of individuals. It celebrates the person who is sufficiently
independent to be able to look others in the eye without reason for
fear or deference.
According to Professor Pettit, non-interference per se doesn’t make
a person unfree, provided they have a say in how power that is
exercised over them. For example, people who outsource decisions
about finances to a professional aren’t for that reason unfree; they
can dismiss the professional, should they not be pleased with his or
her decisions.
The job of the state on this neorepublican image is twofold. It
should resource and protect people under law so that they each
enjoy private non-domination, being able to choose as they wish in
the sphere of their basic liberties. And while it has to interfere in
people's lives to do this, it should guard against being a source of
public domination by being subject to the equally shared controlled
of the citizenry: it should be their servant — a figure like the
financial professional — not their master.
Professor Pettit explained that libertarianism and neorepublicanism
offer rival images of the economy, including the key concepts of
property, money, and the corporation.
In Professor Pettit’s view, none of these concepts can be fully
understood or explained in terms of the limited role that the state is
given under the night watchman model.
For example, libertarianism assumes that property is a fundamental
and natural concept, and that property rights should be protected
by the state from interference. For neorepublicans, however,
property * is a social construct, and the state is necessarily involved
in determining what kinds of rights property includes.
Similarly, it is the state that creates the conditions of trust that
make money “work” as a medium of exchange. Trust and
confidence in government control of the currency, via the central
bank, is crucial to confidence in the economy. Trust is sustained by
government and by the law.
Finally, corporations are not natural agents or persons,
notwithstanding the protected status they have in US
jurisprudence. They are creations of the law and can only enjoy
privileges like limited liability because it is granted by law.
Professor Pettit pointed out that on the libertarian view, if the state
does anything beyond acting as a night watchman, it is acting
beyond its proper business. This ignores the role of the state in
establishing and maintaining property, money, corporations and
other economic entities.
However, the neorepublican model recognises that government has
a necessary role in creating a space within which each individual is
sovereign. The very existence of society and the economy depend
on law, and the exercise of regulatory power does not imply the
public domination of citizens.
It follows that in taking actions to protect the health of the
population – including regulating the behaviour of corporations –
the state is not for that reason alone acting outside its proper
sphere of activity.
PUBLIC POLICY: What should governments do (and not do) to protect
public health
The second session on public policy featured contributions by the
Honourable Judi Moylan, and by Professor Janet Hoek.
The Hon. Judi Moylan, President of Diabetes Australia, Co-Chair
of the Health Minster’s National Diabetes Strategy Advisory Group,
served 20 years in federal Parliament, holding the positions of
Minister for Family Services, and Minister for the Status of Women.
In 2000, she established the non-partisan Parliamentary Diabetes
Support Group and served as its chair for 13 years.
Ms Moylan told the conference that diabetes alone affects 1.7
million Australians, and a further 2 million Australians have prediabetes.
Although public policy interventions to prevent obesity and diabetes
are essential, the “discontinuity between understanding the risks
and undertaking effective national action is of considerable
magnitude”.
Ms Moylan told the audience that members of Parliament “do not
go out on a frolic of their own to interfere in the lives of the people
they represent, or to play nanny to the population. They respond
to issues and problem that are raised by constituents”.
In addition to scrutiny by academics, community and professional
organisations, the committee systems of the Parliament ensures
that legislative proposals are subject to searching inquiry.
As an illustration Ms Moylan pointed to the inquiry into fetal alcohol
spectrum disorder conducted by the House of Representatives
Standing Committee on Social Policy and Legal Affairs.
Fetal alcohol spectrum disorder (FASD) is the largest cause of nongenetic brain damage at birth. While it is entirely preventable,
“over 60 per cent of women continue [to] consume alcohol when
pregnant. There is no cure – there is only prevention”.1
Throughout the inquiry, the liquor industry was well represented.
The Standing Committee ultimately recommended the mandatory
implementation of health warning labels on alcoholic beverages.
Although the government responded with a funding package of
over $20 million, mandatory labelling does not appear as part of
that plan.
Ms Moylan pointed out that public debates about the regulation of
alcohol, tobacco and food have all been met by “shrill cries of
nanny statism”. Legislative reform is made even more difficulty
because of the power wielded by industry through its lobbyists: this
creates a “weighty onus on Members of Parliament to be
scrupulously honest brokers in the public interest”.
With rapidly rising healthcare costs, Ms Moylan concluded: “surely
the rational view must see a socio-economic advantage in
prevention and none in laissez-faire”.
Professor Janet Hoek, Professor of Marketing at the Otago
Business School, University of Otago, challenged an idea that is
central to permissive libertarian views on tobacco: that the choice
to smoke, when made by adult consumers, is considered and
informed.
Drawing on interviews with New Zealand smokers, many of whom
progressed to regular smoking after the age of 18, Professor Hoek
illustrated how “most participants had only a superficial knowledge
of smoking’s risks, knew few specific risks, understood even fewer
implications, and rarely showed any personal acceptance of the
risks they did appreciate”.
1
Department of the House of Representatives, FASD: the Hidden Harm: Inquiry into the prevention, diagnosis
and management of Fetal Alcohol Spectrum Disorders (House of Representatives Standing Committee on
Social Policy and Legal Affairs, November 2012), para 1.6.
Professor Hoek explained how smokers exempt themselves from
their general appreciation of the harms of smoking using a wide
variety of “rationalisations, disengagement beliefs, biases, and
heuristics”.
These include the belief that the exception disproves the rule
(cognitive bias); the belief that higher powers are at work (lack of
agency); and optimism about their overall risk (others are at risk,
though they are not).
Smokers may also exempt themselves by applying harm thresholds
(“I am a light smoker”), by appealing to compensatory behaviours
(“I still eat right and exercise”), or by rationalising their smoking as
a passing phase.
Judged by what adult smokers say themselves, Professor Hoek
concluded that smokers have a confused understanding of the
specific health risks they face by smoking, and their decision to
smoke is far from being an informed choice.
POLITICS: What makes governments act?
The final session of the conference featured Professor Rogan
Kersh, Professor of Political Science and Provost of Wake Forest
University, Winston-Salem, North Carolina.
Professor Kersh, an expert on the politics of obesity prevention in
the United States, told the audience that personal responsibility
remains the dominant frame in the United States.
Government regulation of the food industry – in response to the
obesity epidemic – is framed and understood not only in terms of
the nanny state, but in terms of tyranny and coercion.
In 2008, New York City passed a law requiring calorie counts on
standard food items in chain restaurants with 20 or more
outlets. The 2010 Affordable Care Act ("Obamacare") includes a
similar requirement for chain restaurants nationally. 2 Otherwise,
Congress has passed no significant laws addressing obesity. In
contrast to other health problems, there has been very little
organised policy activism around obesity.
Government regulation of food companies has occurred indirectly,
by providing tax breaks for companies that take actions to improve
health, rather than directly, through legislation. This is described in
terms of the “submerged state”.
When Frito-Lay reduced salt and fat levels in their potato chips, for
example, they received a tax break from the government, but the
public was generally unaware of what had happened. In fact, large
companies that have reformulated their products to make them
healthier do not want the public to know--as Americans tend to
resist 'healthier' snack foods.
Calorie labelling legislation has been a flashpoint in the United
States, as elsewhere. By giving consumers information about what
they are eating, food labelling provides a “nudge” to consumers to
make healthier choices.
However, although the politics of nudges is in vogue in the United
States, it remains very complex in practice.
Professor Kersh pointed to his own research in New York City and
Newark, which showed that New York City’s calorie labelling
requirement made little difference to purchases by adults and
adolescents in low-income neighbourhoods.
However, experimental evidence suggests that adding information
about the daily recommended calorie intake may moderate energy
intake.
2
Patient Protection and Affordable Care Act H.R. 3590, §4205 (Nutrition Labeling of Standard Menu Items at
Chain Restaurants and of Articles of Food Sold From Vending Machines).
In conclusion, Professor Kersh drew attention to a number of
lessons and action areas, drawn from experience in the United
States. 1. It is vital to assert the benefits of state action. 2. We
“submerge” at our peril. 3. Regulation tends to occur incrementally,
including through use of legislative scaffolds. 4. It is vital to
organise into coalitions of interest groups, 5. and to assess policies
swiftly in order to maximise the chances of influencing governments
to improve them.
Other speakers
Other speakers and contributors to the conference included:
 Professor Catriona Mackenzie, from the Department of
Philosophy, Macquarie University.
 Professor Paul Griffiths and Dr Caroline West, from the
Department of Philosophy, University of Sydney.
 A/Professor Ruth Colagiuri, Director, Health and Sustainability,
Menzies Centre for Health Policy, School of Public Health,
University of Sydney.
 Professor Michael Moore, Chief Executive Officer of the Public
Health Association of Australia.
 Professor Roger Magnusson, Professor of Health Law and
Governance at Sydney Law School.
 Dr Belinda Reeve, Law Fellow, O’Neill Institute for National and
Global Health Law, Georgetown University, Washington D.C.
 A/Professor Stacy Carter, Centre for Values, Ethics and Law in
Medicine, School of Public Health, University of Sydney.
 Professor Andrew Wilson, Director, Menzies Centre for Health
Policy, School of Public Health, University of Sydney.
Sydney Law School
Sydney Law School offers a Master of Health Law (MHL) that is
available to law graduates, health professionals and other approved
applicants. The program is currently accepting applications for
second semester 2014, and for 2015. For further information, see
http://sydney.edu.au/law/cstudent/coursework/healthlaw.shtml or
contact Professor Cameron Stewart or Professor Roger Magnusson.
Charles Perkins Centre