At the Conservative Political Action Conference a couple of months ago, Sarah Palin sipped from a 40 oz. super big gulp in the middle of her speech, poking fun at NYC mayor Michael Bloomberg’s ban on large sugary drinks. In doing so she echoed the sentiments of many Americans, who think that beverage consumption is a matter of personal freedom and choice. These sorts of people argue that there is no place for a soda ban in a free, democratic nation based on free market principles. 

On the other hand, corporations that flourish in a free market economy have no duty to the well-being of consumers.  It is a corporation’s duty to its shareholders to increase profit, and so they have a duty to do what it takes (within reason) to do so. In the case of company that makes or sells soda, the upper bound on how much pr­ofit they can make is how much soda they can get people to drink – and that seems to be a lot. This all raises several philosophical questions. What constitutes a free choice?  Is there a good reason to institute paternalistic laws to combat the aims and actions of large corporations who have shareholder, not consumer, interests in mind?  And are such proposed laws even as paternalistic as people think they are? 

Let’s take each of these questions in turn.

It might seem obvious that when I desire and subsequently decide to order a 32oz soda based on that desire, I am acting consciously and freely in accordance with my desires. (Let’s put aside any metaphysical worries we might have about free will here.) In fact, this is exactly the sort of thing many people who argued against the soda ban have said. Even Brian Wansink, a food psychologist who has shown that when given larger containers people eat or drink significantly more than those eating or drinking from smaller vessels argued against the use of his research in supporting the soda ban based on this sort of reasoning. In an article in the Atlantic, Wansink argued that the key difference between his studies and the real life consumption of soda is that people choose to drink what they do because that is what they want – they are not randomly given a container of a particular size as they are in his studies. 

But reasoning like Wansink’s fails to take into consideration that what we desire and even more so what we decide to do is largely dictated by what is seen as normal. I don’t know anyone who desires to drink a bucketful of soda for lunch or eat a hamburger the size of a large pizza; or even if some do desire to do so, most people don’t choose to do so because they realize it is excessive. People who regularly drink buckets of soda and eat hamburgers the size of large pizzas get reality TV specials made about them. We don’t condone this as normal behavior, and most of us do not choose to act in such a way.

The problem is large corporations are determining what is normal when it comes to drinking soda. When Coca-cola first started selling bottled soda in the early 1900s, they were 6.5 oz, and so they stayed until the mid-1950s, when the “king-size” 10 and 12 oz bottles and the “family size” 26 oz bottles were released. What was considered family-sized in the 1950s is 4 oz smaller than a large fountain drink at McDonalds today. (The original fountain drink size at McDonalds was 7 oz!) I doubt Sarah Palin is aware that her soda is nearly twice the size of a family-sized portion and more than six times the size of a single serving by 1950s standards. In many ways, by 1950s standards, we are drinking bucket-sized sodas. Calling a 20 oz “medium” strongly implies that it’s the average one should be consuming in one sitting. Choosing a 12 oz can of coke seems like a smart choice – it’s usually the smallest portion, the “kiddie” size at the soda fountain – when in fact even a 12 oz serving has 39 grams of sugar. That’s more added sugar than is recommended for an average woman in an entire day.  

It’s not just soda companies who are complicit in duping the public about what a reasonable choice is.  For example, in 2006, Wendy’s got ride of their “biggie” and “great biggie” drinks and fries by getting rid of the name “biggie”.  The former biggie drink – 32 oz – became the new medium and the former super biggie – 42 oz – became the new large. Though they are free to, people generally don’t choose drinks or meals called “family-size” just for themselves. By calling a family-sized portion of soda “medium”, corporations put this option on the table, front and center.  Like the participants in Wansink’s lab studies, we do not choose what size containers we are handed.  Should the government step in on our behalf?

Paternalistic laws are ones that interfere in some way with our ability to act based on our own desires in order to promote our own well-being (seat-belt laws are a good example). One form of paternalism is weak paternalism. This is the idea that it is legitimate to interfere with some things people do if those things interfere with (more important) desires and goals they have. All we need is this weak form of paternalism to justify the ban on large sugary drinks. Most of us desire to live long, healthy lives. By banning the sale of large sugary drinks, the law interferes with our ability to act in accordance with one desire (buy a large soda) but aids our ability to act in accordance with another, long-term one (being healthy).

Is the proposed law paternalistic in any case? It’s difficult to assess whether any law is paternalistic because there are generally multiple effects of any law, only some of which involve an individual’s own good rather than the good of others. Unlike in the case of smoking bans, there’s no second-hand soda drinking and I won’t become obese if you drink too much soda around me. But everyone is actually affected by concrete, long-term negative effects of the poor food choices people make. One effect is rising healthcare costs for everyone; the more people who go to doctors and hospitals for obesity-related illnesses, the higher our health insurance premiums become. 

But there are also long-term, rising social costs. People who are seriously, chronically ill often can’t work, or can’t work well, or can’t perform certain, important jobs. They also can’t fully play their roles as mother, father, son, daughter, friend, etc. If this is right, then drinking soda isn’t just your free, personal choice. It’s a choice that affects me and everyone else. Choosing to drink soda becomes, in this way, a choice with moral weight.

I doubt anyone in the 1940s would have predicted the size of soda servings today. The government can place a reasonable upper bound on soda size where companies can’t, and this is just what Bloomberg’s 16 oz. limit would have done. As a matter of fact, Bloomberg’s law didn’t stop anyone from buying 32 oz of soda or any vendor from selling it, so long as it was purchased as two individual 16 oz portions. This was actually one of things cited in overturning the ban – that it would, in fact, be ineffective. 

But this criticism misses the point. One of the things Bloomberg’s law could have done is reset what is normal and bring awareness to how much sugar one is actually consuming. Consumers would have been forced to go back for a second soda if they wanted more, and would have also been forced to add their own sugar to certain drinks like iced coffee – adding 10 packets to your own iced coffee certainly increases your awareness of what you’re consuming. And when 16 oz. becomes the largest portion available, over time, maybe healthier and more modest portions would start seeming normal again.