Out of Control Policy Blog

That's Just a "Cognitive Defect" Making You Drink That Soda

Arguments for new and higher taxes on soda, snacks and all the other food items you love are a dime a dozen these days. Still, not every food tax proponent has the courage to center his argument around the bald-faced proposition that, unless what you put into your body has the author's seal of approval, you suffer from "cognitive and informational defects." Today's food nanny extraordinaire is Jonathan Cummings, a J.D. candidate at Seattle University's School of Law and author of a recently-published article in the Seattle University Law Review advocating soda taxes. From the abstract:

This Comment argues that a proposed sin tax on sugary beverages is sound policy, and Congress should implement the tax in order to combat and address the obesity epidemic because (1) consumers are subject to cognitive and informational defects that affect consumers’ abilities to make the best welfare-generating decisions, and (2) sugary-beverage consumption causes healthcare-related externalities that the current price of sugary beverages do not reflect.

Cummings' second argument, that drinking soda makes you fat and that the taxpayer is likely to pick up at least some of the cost of your care, is plausible but inaccurate. Indeed, a 2010 paper found that soda consumption represents only 7 percent of the average American's daily caloric intake, emphasizing the point that a bad diet makes you fat, not soda. Of course, that hasn't even scraped the surface of other non-dietary causes of obesity, like lack of exercise. There are dozens of factors influencing the causes of obesity, and dozens more influencing who pays for what expenses.

But the truly objectionable part of the paper is the first argument: that government can (and does) know what is best for your welfare. It's a pure, double-distilled shot of parochialism. The essence of the argument is: drinking too much soda can make you fat and being fat can make you sick. Of course, no rational person would want to be sick, so the desire to drink soda is the consequence of a "cognitive or informational defect."

Never mind that the myriad problems with this approach, from ignoring the most basic questions of personal agency and responsibility (can I do what I want even if it may have negative consequences for me?) to obscuring the way obesity works (will a marathon runner suffer the same "harm" from drinking a soda as a couch potato?). The list goes on.

The real problem is that Cummings suggests this view is an appropriate lens through which to make and analyze law. He's suggesting that since people cannot be trusted to make rational choices (or choices the government sees as rational) 100% of the time, it is both worthwhile and necessary for the state to manage them. He argues, quoting legal scholar Cass Sunstein, that "regulations should imbue an 'economic analysis of the law that is more informed by an accurate conception of choice.'" This means questioning the rationality of every choice except the one made by government regulators. And that idea is a scary one indeed.

David Godow is Research Assistant


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