Public Health Regulation and the Limits of Paternalism

This Article explores the role of paternalism in regulatory efforts to improve public health, focusing mostly on obesity, but also accounting for recent developments in other public-health arenas. First, the Article describes a spectrum of interventions that regulators can implement in the public health zone, ranging from “soft” paternalism to “hard” paternalism. Second, the Article discusses the limits of these paternalistic interventions in addressing the problem of high obesity rates in America. The analysis shows that the underlying scientific and socioeconomic factors driving obesity prove difficult to confront — a difficulty further complicated by the lower tolerance that the public has expressed for regulatory interventions that diminish individual autonomy. Soft paternalism may prove too weak to address obesity — and hard paternalism may prove socially unpalatable to deploy. Third, the Article reinforces the notion that a larger pattern may have emerged with respect to the limitations of paternalistic approaches, discussing recent attitudinal shifts against marijuana prohibition and water fluoridation, as well as a wave of activism combating the refusal of food producers to enable people to make choices about consuming genetically-modified foods. The analysis concludes that the negativity associated with the reduction of personal autonomy has constrained the options of regulators already charged with solving difficult problems. Ultimately, however, narrow opportunities for intervention still exist. If regulators invest heavily in the soft paternalistic initiatives that prove effective, and the hard paternalistic opportunities that prove inoffensive, the aggregate impact on public health, though limited, may prove positive