Doctor Cleveland's picture

    Cooking in Rome: Soda Bans and the Illusion of Choice

    A judge has overruled Mayor Bloomberg's soda ban, calling it "arbitrary and capricious." So New York City's ban on large sugary beverages, meaning more than 16 oz. servings, is basically dead. This is a big win for Big Gulp Libertarianism, which derided the government soda ban as Nanny State tyranny, taking away individual's freedom to make their own rational choices. But you know what else is arbitrary, capricious, and erodes individual freedom of choice? Marketing. Every food package you will ever encounter was designed to limit the exercise of your free will. Selling someone else a 64-ounce cola may be a rational individual decision. But buying a 64-ounce cola is not quite an act of unfettered free choice.

    I spent a month or so last summer living in Rome, which meant cooking and shopping in Rome (a great pleasure) and becoming that timeless figure of comedy, the Americano nel supermercato. That meant everything I bought in a bag, packet, or can came in a smaller bag, packet, or can than I'm used to. A can of tuna, say, was a little more than half the size of an American tuna can (80 grams instead of 140+). And within 24 hours of getting off the plane, I had adjusted to thinking of that as a standard can of tuna. When I flew back to the United States and walked into an American supermarket, I switched back. But I didn't constantly open a second can of tuna in Rome so that it would be the size of a "real" can. There's no such thing as a "real" size for a can of tuna. I just worked with the set of units I was given, like everyone does. It's not that I decided I wanted exactly 80 grams of fish. But by the same token, I don't "want" exactly 142 grams of fish at a time when I'm in America. That's just the size the can comes in, and so when I open a can I try to use the amount of tuna that's in it. I didn't decide that I wanted this or that amount.

    Opponents of the Bloomberg ban say that people will just order two (or four) 16-ounce sodas to get around the ban. The judge says the same thing. In fact it seems like such common sense that it's a joke: how ridiculous not to expect people to buy two sodas instead!

    Please. No one was going to do that. That is not how the world works at all.

    No one just naturally decides on their own that they want 32 or 64 ounces of soda. You don't go into the 7-11 and think, "Man, I need 64 ounces of something cold, 'cause there isn't nearly enough pressure on my bladder." The idea of buying something that size has to be suggested to you, and the suggestion has to be framed so the decision feels natural. If there were no 64-ounce sodas on sale, you wouldn't think the 16-ounce soda looked inadequately small. It wouldn't even occur to you.

    Seriously: before people started buying Big Gulps, were customers buying two or three sodas at a time because the available sizes did not satisfy their thirst? Does anyone actually believe that the super-sized drinks were created to respond to customer demand? If you do, I have some shares of Lehman Brothers to sell you. Those sizes were invented to create customer demand. It's better for the seller to sell larger amounts of the (cheap and government-subsidized) sugar water, so they created a set of packaging choices where 16 ounces went from "extra-large" to "medium" or "small." And they frame super-sizing your drink as a bargain. Bingo! Illusion of choice. You get to experience 7-11's corporate strategy as your natural exercise of free will.

    If you're not willing to believe that, let me point out a basic fact. There are professional stage magicians all over this country who can "read your mind" by identifying the number/playing card/primary color/etc. that you think of when they ask you. They don't do this with trick decks of cards: it still works with numbers, colors, and so on. They do the trick by choosing the number or color for you. This is so easy that a non-trivial number of people make a living doing it. You never know they choose for you. You experience it as your own choice. But the trick, called the "force," works effectively and reliably. If you ever want to ruin a magic show, just write down the second number that comes into your head after the magician asks you to write down the first number that comes into your head. The first number that comes into your head is the one the magician picked for you. (But if you ever ruin a magic show, you are using your knowledge for evil and I disown you.)

    We like to think of a magician's force as just something that happens on stage in Vegas. But it happens all the time. We all fall for the Jedi mind trick every day, and when someone points it out to us we angrily insist that it was our own idea all along: those are not the droids we were looking for! It's simply too uncomfortable to think that many of the ideas that seem to appear independently in our head have actually been placed there by others as we happened by. If we're that easily suggestible, what about our free will? Science's answer seems to be: what about your free will, sunshine? Where did you see it last?

    If you want to strike a blow for the freedom of human self-determination, fighting the soda ban is a sucker's game. All you're fighting for there is the right of corporate entities to manipulate your behavior, and your personal right to be their sucker. If what you're interested in, however, is fighting to preserve your illusion of self-determination, your right not to notice that your free will isn't 100% free or 100% yours, then you go right ahead and fight that evil nanny state, brother. But don't expect the rest of us to hail you as a champion of liberty. You're perfectly free to delude yourself. Enjoy your visit to New York.


    As someone who used to love his 64-oz cups of soda, I have to say you're absolutely correct. One reason I'd buy those 64-oz cups is because they were only a quarter (or so) more than the 32-oz cup, and only a fool would pass that up!

    I don't drink that swill anymore, but instead of buying large cups of soda, I used to just refill my smaller cup before leaving. I also used to blend Dr Pepper with Diet Pepsi so I wouldn't feel so bad about all the sugar in the Dr P. Ha! Diet P was just as bad for me.

    Why not just buy a cup of ice and a 2L cola?

    I'd do that, too. Some days I'd go through 3 or 4 2L bottles of Dr. Pepper. It's amazing that I'm still alive!

    Sure does sound like you fucked up your pancreas beyond the point of no return. Congrats on making it out alive!

    Self-determination does not mean freedom from influence. It does not even mean freedom from manipulation. It means freedom of choice--for better or for worse. Freedom of choice is not an illusion, and all the advertising in the world cannot erase it. It is, in my opinion, precious.

    That is not say that such freedom should never be sacrificed, but we should be cautious about sacrificing it simply to protect people from making bad decisions. There are cases when we may be obligated to constrain self-determination--dangerous and addictive narcotics, selling oneself into slavery, etc.--but I'm not convinced that sugar drinks meet the threshold. And more to the point of the court decision, I don't believe that the city board of health should have the authority to determine whether it meets the threshold.

    Is a choice made under influence one is not aware of free?

    Does manipulation actually leave choice free? The point of manipulation is not to do that.

    I admit that regulation cannot rein in every bit of marketing and retailing manipulation. It is obvious that such manipulation is more subtle than government regulation can ever be. And if the sugary drinks are not the greatest menace, they are one of the easiest to identify as the fruits of manipulation, because we are talking about a genuinely weird product. A single-serving soda that contains over 700 calories and no nutrients is a pretty strange thing.

    As for the inviolable freedom of choice, I will leave that argument to the cognitive scientists. I would like to believe that nothing could change my freedom to choose. I just don't have the evidence to shore that belief up.

    But all choices are made under influences one is not aware of. If freedom from influence were the standard, there would be no such thing as free choice.

    As for manipulation, think about it from the point of view of responsibility. If someone manipulates you into committing a crime, you are still culpable. You allowed yourself to be manipulated. Contrast manipulation with coercion. If someone forces you to commit a crime--at gunpoint say--you are not culpable. You had no choice, or at least no reasonable choice.

    So yes, we're manipulated. By marketers. By friends. By politicians. Even by well-meaning health department officials. But manipulation is not illegal, and while it may not always be good for our self-interest, it poses no threat to our self-determination. The only threat to self-determination is coercion.

    I should add that I'm also sympathetic to this point-of-view.

    The whole thing with marketing is that consumers can manipulate back as good as any corporation trying to sell to them if they are really passionate about it:

    Of course there's times when the sellers just won't budge even though they have lots of incoming consumer data that they should. In the linked example, Pepsi looked like they might not budge, but then they did, and now it's Coke

    Sometimes maybe the gummint has to step in. Sometimes not. The interesting thing with the BVO example is that the health issue may be a little irrational. (I.E., just because something works well as a flame retardant doesn't automatically mean it's dangerous to consume; olive oil can be used as a lubricant.) It doesn't matter, if the consumer thinks so, looks like some makers will go out of their way to take it out.

    I am thinking about how in the olden daze, before the consumer was studied ad nauseum and in real time, I remember it took a real long time for what the consumer really wanted to sink in, like for example, the decade or two it took for "them" to realize that fat ladies wanted fashionable clothing, too, and that they had the money to pay for the same.

    I am far from a fan of Bloomberg's nanny tendencies. But I must admit I finally got what he was trying here when I went to a movie in Manhattan (I hadn't gone in many years) and found out what they call a "small" soda. I actually laughed, it was so ridiculously huge. Now I know all that extra volume only costs them a few cents. But still, they could sell a much smaller soda at the same price and make some extra money. And Manhattanites in general do not seem like a market of big gulpers. So here is intransigent marketing for no understandable reason.

    This does happen a lot to all of us, I think--how many times do we get aggravated along the lines of---I wish "they" would offer a product this way or that way or in this size or that size, but they never do? That we are sure that there are plenty of other people that want a certain choice we do but that sellers are not seeing it? Whether government has to step in with a law every time and everyone will work out much better is another issue....we do know from the Soviet Union example that this is not what happens when taken to its full extreme, that then even the government does not get what it wants.

    I don't dispute that we would be better off without Big Gulps. But there are many things we would be better off without. I don't see it as the government's business to regulate for that reason alone.

    I think we should be offered the choice of both big gulps and small gulps. And medium gulps for that matter. (There were no small or medium gulps being offered in movie theaters, only huge, giant and gargantuan, which made me a little more understanding of Bloomberg's agita. But he always overdoes it.)

    And water. Why is it that fast food places had to be forced to offer water while better restaurants had to be forced to offer water at request instead of automatically giving it to everyone?  Both make good profit off of beverages, so that's not it. It was the automatic serving of water in the latter case that was just an irrational custom. Sometimes the market fucks up and is really irrational and someone has to complain. I agree that it should only very rarely be the government.

    Yes, I think my point is that we are always subject to influence. But that's what makes the howls about self-determination so off in this case.

    Is the Soda Ban one of my primary policy goals? No. Would I have advocated for it? No. There are plenty of things I would prefer government get to before the Big Gulp.

    But making THIS the hill to die on on resisting government tyranny is ridiculous. And talking about Bloomberg if he's crazy is, well, a small symptom of denial. If we're going to make this about principles, lets's talk about all the principles.

    I do believe that governments have the right to forbid gambling, for example, which is likewise an exercise of "free will." Everybody experiences their gambling decisions as real decisions. But it's a classic example of humans responding to stimuli in pre-rational ways, and it's objectively dumb. Anyone standing in a casino talking about their freedom of choice is a little embarrassing.

    Sure, anyone who piously defends free choice but opposes legal gambling is a hypocrite, but that doesn't make the soda ban good policy. And no, banning the Big Gulp will not turn us into mindless drones, but that doesn't make it good policy either.

    The only relevant question is whether this restriction of our freedom of choice is justified by the need. Now if elimination of the Big Gulp would eradicate obesity, then I might be convinced that it's worth it. But of course it won't eradicate obesity. It might help, but the fact that it might help is not sufficient to warrant a new law that is indeed arbitrary and capricious.

    I think we have the issue backwards.

    Choice, at its root, is just the ability to say yes or no or say yes to this one instead of that one.

    So Henry Ford offered everyone a choice of car color as long as it was black because they could choose to buy his car or not.

    Were we to ban SuperGulps, we would not be limiting freedom of choice--as the critics claim--we would be providing different choices and, perhaps, even more of them than they have now. For example, if we capped the biggest size a store could offer, then manufacturers might subdivide the maximum volume into a greater number of smaller sizes.

    As AA says, we don't have the choice right now of ordering smaller sizes--everything has been super-sized. And "we" did not decide we wanted SuperGulps. They were presented to us with the right price incentives, and we bought. So, in a very real sense, it is 7/11 et al who've eliminated choices we used to have. "Twelve full ounces, that's a lot! Twice as much for a nickel, too. Pepsi-Cola is the drink for you."

    It's getting harder and harder to find and choose 12-oz sodas in bottles --though, I admit, you can find "personal" soda and beer sizes at supermarkets.

    So, at bottom, I think what Doc is saying is that the issue is not "freedom of choice." It is which choices do we have. And who gets to decide which choices we have. And why. Whether it's the government, the market, or the R&D department, other people are deciding which choices we will be presented with.
    Then, of course, we get to decide whether we want a black car or would rather take the bus or subway.

    A lot depends on whether you feel that government setting some limits curbs your freedom to choose more than the corporate suite deciding and the market then confirming the "correctness" of those choices. In the first case, you can petition your elected leaders. In the second case, you can stop buying SuperGulp and hope that enough other people do the same to move the market in your direction.

    Americans tend to think the second case allows them more freedom. But I'm not sure that's true. Look how NYC responded to the uproar around size limits. I'm not sure we, the people, have such direct control over what Pepsi does. We can write them; we can complain. Ironically, we can complain to our congressman. But if they're making money with the big sizes then what leverage do we have? And if it makes overwhelming economic sense for them to offer bigger sizes, how can we argue with that?

    I was going to say...if Pepsi is making money with bigger and bigger sizes, then "the market" and thus "the people" have voted for it with their pocketbooks.

    But on second thought, I wonder if that's really true. As Doc says, most people simply acquiesce and make do. They want a soda and that's the size on offer, so they buy it. They may not really like it. They may leave it half full. But they buy it.

    So the question a purchase like a vote?

    Many of us hold our noses and buy...and also hold our noses and vote. But somehow, to me, it still feels like I have more say in what the government does than over what Pepsi does. These days, of course, that's a hard argument to make, so I guess I have to leave the question hanging-:)

    I guess one difference is this. With a purchase, you're saying yes or no to what is presented to you by someone else. With a vote, you have some say in what gets presented or, more broadly, in what we do as a society. That is, if you want something that isn't currently presented, then you have a better shot of making that happen through the government you voted in.



    Peter, this is an eloquent defense, but there is an essential difference between the power of a government agency and that of a corporate marketing department. The marketing department can determine what products its company supplies. A government agency--if invested with the power that Bloomberg wishes--can determine what products its citizens can buy. So sure, Ford only sold cars black cars. But no one had to buy a Ford. By contrast, imagine that a federal agency were to mandate that all automobiles be black. You see the difference?
    But what if all the manufacturers had followed Ford's black-only policy? Wouldn't that have been the same outcome? But the other manufacturers didn't follow Ford and for good reason--because there was still plenty of demand for colorful cars. And soon enough, even Ford abandoned its black-only policy in order to compete with them.
    Of course, not every consumer can buy anything he or she wants. Our choices are constrained. But these constraints are subject to demand. Even a relatively small share of the consumer base can command a market for the products it desires. That's why stores sell quinoa. That's why some cars come in hot-pink. And that's why you can even buy mini-cans of coke.
    By contrast, government agencies are not responsive to demand. Sure, people can vote a mayor out of office every four years, but that's a crude tool for determining the size of a Coke bottle, and it requires a majority. The pink-car and quinoa crowd would have no hope of legislating availability of their favorite products if an agency decided to prohibit them.
    That doesn't mean that agencies should never regulate consumer choice. The negative social impact of dangerous products sometimes outweighs the interests of those who want to consume them. But 20-oz bottles and cups are not the primary cause of obesity in NYC, and their harmful consequences do not meet the threshold for government intervention.

    Maybe we should tax the more dangerous types of soda, like Jolt, at a higher rate.

    If you like, I could manipulate you into believing you have the evidence to shore up your faith in freedom of choice…

    (Warning, wandering into metaphysics and cognitive sciences…) I feel like I have free will, but my science background tells me that is an illusion. I have no option but to think I have free will. laugh (It's a very useful illusion!)

    How very Williams James of you.

    If a recipe calls for 8 oz of tuna, it will require 8 oz of tuna or the meal will not turn out correctly (without doing math on all the other ingredients). Changing the size of the can doesn't change this reality - nor does opening a can obviate consuming the entire contents in one sitting.

    Manipulation is kind of a misnomer for what we're talking about here. As far as soda goes, there are typically cups available to purchase soda in any size one would like to enjoy (and, actually, there are three different sizes of tuna can available at my local market). Obviously, there is the possibility for consumers to make a range of choices at point of purchase. To me manipulation would mean removing the ability to purchase anything but a monster cup of soda. The argument that aggressive pricing to make larger sizes more economically attractive is manipulative to the point it robs one of free choice seems hyperbolic to the extreme.

    But even if all your assumptions/assertions are accurate, banning large sodas is still a bullshit approach. If you feel the problem is that people have been mislead by marketing manipulation to the point that free will is gone, isn't the problem really a lack of effective competition in the marketplace of ideas?

    Why isn't the correct solution to counter "manipulative" marketing with marketing that manipulates the targets into doing what it is that you have decided is better for them than the choices they are currently making? Your premise appears to advocate leveraging government authority as a lazy tool for folks who hold strong opinions about how their fellow Americans should behave, but don't want to invest the energy and resources it would take to sell their ideas and have those behavioral changes occur voluntarily.

    In a nation that can be 'manipulated' into starting a totally unnecessary $2 trillion dollar war, selling huge soda pops is a nearly effortless 'undertaking'. Diet may be shortening life spans in the USA.

    Anyone who hasn't seen it should watch Dr. Robert Lustig's lecture, Sugar, the Bitter Truth. He is a pediatric endocrinologist, and he says sugar is addictive in it's effects on hormone levels. He relates that his obese patients are like starving people due to hormone imbalances, they have no energy and are always hungry. He says the war on fat from the 80's has resulted in a food industry that over sweetens foods. One of his points is that a calorie is not a calorie, and you can't exercise off a Super Gulp. Foods like nuts, and foods high in fiber, take calories to digest. High fructose corn syrup was invented to stabilize food prices from gyrations in sugar prices. Natural sugar is 1/2 fructose, fructose is what makes sugar sweet, however it's metabolism is different, and more problematic, than glucose.

    The lecture is a very informative. 1 1/2 hours long. He has a book called Fat Chance, just published a few months ago.

    And check your pure Florida orange juice. It, like most fruit juices, has more sugar per ounce than soda pop.

    Bloomberg meant well by this and it was, of course, informed by the success of his indoor smoking ban, which went national.  But the second hand smoke argument (you're harming other people) is just a lot more compelling than, "you're drinking too much soda and costing the health system money."  I'd say that in this case, Bloomberg overreached but for the right reasons.

    It did not help his cause, however, that 7/11's Big Gulps were apparently among those items exempted from the rule.  Nor did it help his cause that he has basically championed bringing 7/11's into the city, to the dismay of mom and pop bodega owners.

    I agree with you, Doc, that "Big Gulp Libertarianism" is pretty silly.  I'm going to make a lot of choices today that feel "free" but are in fact based on what's for sale and how things are sold.  I just can't figure out an answer within the bounds of human freedom.  I'm kind of okay with how this played out.  Intellectually, I'm with Hizzoner, but ethically I'm with the judge.

    Mike, California instituted their statewide indoor smoking ban in 1995. In 1998 that law was expanded to cover all indoors including bars. So goes California, so goes America. It's funny that people in NY think they they have the are the first to do everything. LOL.

    I'm sorry, I should correct myself.

    New York was the first normal place that represents real America to ban smoking in bars and restaurants.  The nominal state of California may have had its own restrictions but, given that Doc Cleveland is writing about  clearly domestic issue, it is off topic in this thread.  To talk about California's legal innovation woud be like talking about Singapore's ban on chewing gum.

    Er, good point!

    *snort *hahahaha

    That's funny!  But, seriously... what's "Jersey?"

    A very manly shirt worn most often by athletes or pseudo athletes like myself.

    Oh! Got it.

    Latest Comments