Evaluating Equity Critiques in Food Policy: The Case of Sugar-Sweetened Beverages

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According to Brownell and Ludwig , “California, Nebraska, Illinois, Pennsylvania, Minnesota, Michigan, Vermont, and Texas have either requested such permission or urged Congress to grant states more flexibility to set standards for what can and cannot be purchased with SNAP benefits, but thus far no such request has been granted.” Brownell K. D. and Ludwig D. S. , “The Supplemental Nutrition Assistance Program, Soda, and USDA Policy: Who Benefits?” JAMA 306, no. 12 (September 28, 2011): 1370–1371.

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Political philosopher Amartya Sen observes that “every normative theory of social arrangement that has at all stood the test of time seems to demand equality of something – something that is regarded as particularly important in that theory.” Sen argues that for a political theory – and by extension, a political system – to be justifiable to all those who are subject to laws and restrictions, it must involve “elementary equal consideration for all at some level that is seen as critical. The absence of such equality would make a theory arbitrarily discriminating and hard to defend.” Sen A. , Inequality Re-Examined (Oxford: Oxford University Press, 1992): at 12, at 17. Similarly, political philosopher Ronald Dworkin maintains: “No government is legitimate that does not show equal concern for the fate of all those citizens over whom it claims dominion and from whom it claims allegiance. Equal concern is the sovereign virtue of political community – without it government is only tyranny.” Dworkin R. , Sovereign Virtue (Cambridge: Harvard University Press, 2000): at 1–2.

See Sen , supra note 11, at 17.

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Rawls J. , A Theory of Justice (Cambridge: Harvard University Press, 1971): at 179.

See, for example, Sen supra note 11; Dworkin , supra note 11; Rawls , supra note 14; see also Sen A. , Commodities and Capabilities (Oxford: Oxford University Press, 1995).

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See, for example, Rawls , supra note 14; Dworkin , supra note 11; Arneson R. , “Liberalism, Distributive Subjectivism and Equality of Opportunity for Welfare,” Philosophy and Public Affairs 19, no. 2 (1990): 158–194.

See, for example, Arneson R. , “Autonomy and Preference Formation,” in Coleman J. L. and Buchanan A. E. , eds., In Harm's Way: Essays in Honor of Joel Feinberg (Cambridge: Cambridge University Press, 1994): At 42; see Arneson , supra note 19; Dworkin , supra note 11, at 159; Sen supra note 11, at 6–7, 149.

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Wansink B. , Mindless Eating: Why We Eat More Than We Think (New York: Bantam Press, 2006); see Schwartz and Brownell , supra note 21.

Id.

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We would like to thank Nancy Kass for pointing out this helpful distinction.

Heartline-Grafton H. , “At Issue: Should Soda Be Excluded from Foods Food-Stamp Users Can Buy?” Congressional Quarterly (October 1, 2010): 813.

See Berg , supra note 7.

See Heartline-Grafton , supra note 26.

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Id.

See Scanlon , supra note 16, at 253.

The capacity of laws to indicate that certain attitudes or beliefs are held by the state is referred to as the expressive function of law. Sunstein C. , “On the Expressive Function of Law,” University of Pennsylvania Law Review 144, no. 5 (1996): 2021–2053; Lessig L. , “The Regulation of Social Meaning,” University of Chicago Law Review 62, no. 3 (1995): 943–1045. Adler M. D. , “Expressive Theories of Law: A Skeptical Overview,” University of Pennsylvania Law Review 148, no. 5 (2000): 1363–1501. Theorists disagree about what exactly is the expressive content or meaning of a law. Adler argues that we should distinguish the literal meaning of a law (e.g., the law “Blacks may not own automobiles” has the meaning “It is hereby prescribed that blacks may not own automobiles,” the intentions of lawmakers who drafted the law, and the social impact of the law (e.g., whether the law increases stigma). We think it is useful to distinguish all of the following: What lawmakers intend to communicate with a law (e.g., “Drink less soda”), what lawmakers actually believe (e.g., “People drink too much soda” or “SNAP participants can't be trusted to make their own decisions”), how the public will interpret the law (e.g., “SNAP participants can't be trusted to make their own decisions” or “People should drink less soda”), and the actual cultural impact of the law (e.g., increasing the stigma associated with SNAP participation, or changing the public's views of the health consequences of sweetened beverages). The concern that the SNAP exclusion sends the message that SNAP participants can't be trusted to make their own decisions seems to be a two-pronged concern – first, that the public will interpret the law as expressing lawmakers' view that SNAP participants make bad decisions, and second, that this will increase stigma and discrimination against SNAP participants.

See Adler , supra note 33.

Deitz W. H. Benken D. E. , and Hunter A. S. , “Public Health Law and the Prevention and Control of Obesity,” Milbank Quarterly 87, no. 1 (2009): 215–227.

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