No such thing as a free lunch: paternalism, poverty, and food justice.

• Author: Goldberg, Rebecca L.
• Position: Introduction through II. Two Proposals to Reduce Unhealthy Food Consumption in Low-Income Communities, p. 35-65

Two recent, controversial policy initiatives have revealed conflicts among three groups that take an interest in the eating habits of the poor: anti-hunger advocates, anti-obesity advocates, and "food justice" advocates. These initiatives-Los Angeles's zoning ordinance banning new fast food restaurants in one low-income neighborhood and New York City's proposal to ban the use of food stamps for soda purchases--are supported by anti-obesity advocates but opposed by many others, including (in the case of the latter initiative) anti-hunger groups. Opponents have argued that there is something uniquely troubling about government paternalism when it singles out a marginalized group like the poor. The food justice movement has been largely silent during these debates, though the issues strongly relate to the movement's central goal of promoting equal access to healthy food. This silence seems to stem from the movement's lack of a coherent vision of equality, which leaves it unable to decide if these policies are discriminatory. This Article argues that this lack of a coherent vision is a major failing of this important emerging movement, which should follow the lead of the environmental justice movement by using these sorts of difficult issues to refine and communicate its message. The Article also examines the scholarship surrounding paternalistic policies that target marginalized groups, creates a rubric for exploring whether such policies are at odds with the ideal of equality, and applies that rubric to the two policy initiatives. This exercise demonstrates how different conceptualizations of equality influence the analysis of these types of proposals. This observation underscores the food justice movement's need to articulate a clear vision of equality, particularly since many emerging food policy issues involve paternalism that disproportionately affects the poor.

INTRODUCTION

A nation's approach to the challenges presented by poverty reveals a lot about that society's values and culture. The issue of feeding the poor is universal, but in the United States, there has recently been a notable burst of interest in feeding the poor in a healthy way. Traditional anti-hunger advocates still fight to make sure the poor have enough to eat, but they now share the stage with two groups that focus not on the dangers of malnutrition and food insecurity, (1) but instead on the healthfulness of the food the poor consume: anti-obesity advocates (2) and "food justice" advocates. (3) The former work within a public health model, attacking obesity much like tobacco. (4) While their concerns are not solely about the poor, they often focus on that population due to the prevalence of obesity in low-income communities. (5) Food justice activists, meanwhile, aim to bring a certain type of food to low-income communities--the whole, unprocessed food that Michael Pollan and other popular figures view as optimal. (6) Their rhetoric is rights-based and equality-based: they argue that everyone has an equal right to fresh, healthy food regardless of income. (7) While the goals of these three groups are similar enough that they often co-exist peacefully, (8) recent disputes have exposed important philosophical differences. (9) These disputes offer a glimpse into contemporary debates not only about the food system, but also about issues as fundamental as the proper role of government, the value a society should place on autonomy, and the meaning of justice and equality.

Anti-obesity advocates, seeing government regulation as one important tool for combatting a public health threat such as obesity, have proposed a range of government interventions to reduce consumption of unhealthy food, particularly in low-income communities. (10) Two such initiatives that gained the support of local governments are discussed here: Los Angeles's decision to zone a low-income part of the city so that new fast food restaurants cannot be built (11) and New York City's proposal, which was rejected by the Department of Agriculture, to make it so that food stamps (now called SNAP benefits (12)) cannot be used to purchase sweetened beverages. (13)

Anti-hunger activists, who are strong supporters of many government programs, (14) appear to have drawn a clear line in the sand with respect to these sorts of proposals that single out the poor for paternalistic (15) government intervention in a way they view as discriminatory. They have been particularly vocal in their opposition to New York City's SNAP initiative, as well as to similar proposals that would limit the use of SNAP benefits. (16) Other commentators have also opposed these two initiatives on the grounds that government paternalism toward the poor raises unique concerns not raised by paternalistic policies that sweep more broadly. (17) The debate around this point has received considerable attention, and the arguments that have been made suggest important questions not only about food policy, but also about when it is appropriate for government to treat different groups differently. (18) But this discussion has so far received very little scholarly attention, and the arguments advanced on both sides have often been superficial.

The food justice movement, which represents an important emerging voice in the increasingly loud debates about food policy, (19) has largely stayed out of this conversation. (20) When movement leaders have participated, they have struggled to reconcile their interest in healthy eating, which these proposals aim to promote, with their concerns about equal treatment of the poor. (21) Food justice scholarship--which so far is almost entirely non-legal (22)--does not provide guidance for addressing these difficult issues. Indeed, the attempt to find such guidance in the current literature reveals how superficially the food justice movement has thus far used terms such as "justice" and "equality." By way of contrast, the environmental justice movement, upon which the food justice movement patterns itself, (23) has generated a tremendous amount of scholarship about the similar issue of how to respect the autonomy of low-income communities when such communities decide to take on environmental burdens for the sake of economic gain. Indeed, environmental justice scholars have used that difficult question to challenge and refine their movement's definition of justice. (24)

This Article argues that the food justice movement's silence on the proposals discussed here, and its more general lack of a coherent vision of equality and justice that can guide these sorts of difficult inquiries, is a major failing. The Article takes one step toward addressing this failing by articulating a series of questions that can be used--by the food justice movement or by other groups--to analyze paternalistic government policies that target marginalized groups such as the poor. These questions can guide an exploration of whether a given proposal of that type is at odds with the ideal of equality. Rather than addressing the well-covered topic of whether or not government paternalism is ever justified, (25) these questions focus on the specific issues that are raised by government paternalism that singles out marginalized groups--a type of paternalism that the Article asserts is not inherently incompatible with equality, though it certainly can be discriminatory in some contexts. This type of targeted paternalism is particularly interesting because of its tendency to cause disagreement between groups that are in many ways ideologically similar. (26)

The questions set forth in this Article do not purport to yield a yes/no answer as to whether a particular policy is at odds with the ideal of equality; to the contrary, they highlight the ways in which different conceptions of equality will lead to different views on a given proposal. This reinforces the conclusion that the food justice movement's failure to articulate a clear vision of equality leaves the movement unable to rigorously analyze these types of proposals. This is particularly problematic because many emerging food policy issues include some element of paternalism that either targets marginalized groups such as the poor or disproportionately affects such groups. (27) Moreover, the broader question that targeted paternalism raises for the food justice movement--the question of how to balance substantive goals relating to food consumption with goals such as autonomy and dignity--arises in still more contexts. (28) In order for the food justice movement to have a sustained impact on scholarship and policy, it needs to offer a coherent vision of equality and justice that allows it to address these sorts of issues. This Article does not attempt to articulate that vision, but it provides a window onto different ways of conceptualizing it. It also constitutes a call for further legal scholarship on these topics.

Part I of the Article describes the anti-hunger movement, the anti-obesity movement, and the food justice movement and the different narratives they offer regarding food in low-income communities. Part II examines the proposals in Los Angeles and New York City and the debates about paternalism toward the poor that have surrounded both proposals. Part III explores existing legal scholarship about paternalism, which has occasionally, though rarely, examined the issue of paternalism toward the poor. Based in part on that scholarship and in part on the debates described in Part II, Part III develops a series of questions for assessing proposed government policies that are paternalistic toward marginalized groups such as the poor. The goal of this exercise is to facilitate a more thoughtful and reasoned analysis of whether such proposals are at odds with the ideal of equality. Part IV assesses the Los Angeles proposal and the New York City proposal through the lens of the questions set forth in Part III, thus expanding and deepening the current...