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The Illusion of Autonomy in “Food” Litigation

Published online by Cambridge University Press:  06 January 2021

Paul A. Diller*
Professor of Law, Willamette University College of Law


Behavioral scientists have understood for decades that when it comes to food, we are anything but fully autonomous. One's choice of what and how much to eat is strongly influenced by environment and context. Give someone a larger bowl and serving spoon, and he will unwittingly eat more ice cream than if he used a smaller bowl and spoon. A person will eat more if out with friends, and may eat less if eating at a leisurely pace. The food industry has been fully aware of this science for decades; indeed, its scientists have been among the leading researchers in the area. Using this science to its advantage, the industry has manipulated the appearance, smell, taste, texture, and packaging of food to get Americans to eat more of the foods the industry sells, with often devastating consequences for the public health.

Copyright © American Society of Law, Medicine and Ethics and Boston University 2015

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1 It is often inaccurate—and unduly generous—to refer to many of the products churned out by the industries discussed in this article as “food.” See generally Michael Pollan, In Defense of Food: An Eater's Manifesto (2008) (distinguishing between real food and the “edible foodlike substances” so common in the American diet). For simplicity's sake, however, I will put quotations around food only in the article's title.

2 Hermans, Roel C.J. et al., Social Modeling Effects on Snack Intake Among Young Men. The Role of Hunger, 54 Appetite 378, 378 (2010)CrossRefGoogle ScholarPubMed (“[S]tudies have consistently shown that food intake and food choice are affected by where, when and with whom one eats.

3 Wansink, Brian et al., Ice Cream Illusions: Bowls, Spoons, and Self-Served Portion Sizes, 31 Am. J. Prev. Med. 240, 241-42 (2006)CrossRefGoogle ScholarPubMed; see also Wansink, Brian et al., Portion Size Me: Downsizing Our Consumption Norms, 107 J. Am. Dietetic Ass'n 1103 (2007)CrossRefGoogle ScholarPubMed.

4 Hermans, supra note 2, at 378 (“It has been found repeatedly that as the number of people present increases, the amount of food consumed increases.”).

5 See Rozin, Paul et al., The Ecology of Eating: Smaller Portion Sizes in France than in the United States Help Explain the French Paradox, 14 Psychol. Sci. 450, 453 (2003)CrossRefGoogle ScholarPubMed (suggesting that the more leisurely pace of eating in France is associated with lower obesity rates).

6 See generally Michael Moss, Salt Sugar Fat (2013) (arguing that the food industry's decades-long promotion of foods high in salt, sugar, and fat is partly responsible for the rise in obesity in the United States); Nicholas Freudenberg, Lethal but Legal 4-19 (2014) (explaining how food and beverage corporations appropriate science and technology to market overconsumption); see also Michael Pollan, The Omnivore's Dilemma 85-119 (2006) (describing the processed food and fast-food industries).

7 See generally Eric Schlosser, Fast Food Nation 119-29 (2001) (describing how fast-food companies employ teams of chemists and scientists to manipulate product taste); see also Benforado, Adam et al., Broken Scales: Obesity and Justice in America, 53 Emory L.J. 1645, 1695 (2004)Google Scholar (describing how restaurant chains use overhead speakers because “wafting music has been shown to increase overall spending,” and use “chemical flavor configurations … to induce a pleasurable response in consumers ….”).

8 Schlosser, supra note 7, at 42-57; Benforado et al., supra note 7, at 1700-07; Batada, Ameena & Wootan, Margo G., Nickelodeon Markets Nutrition-Poor Foods to Children, 33 Am. J. Prev. Med 48 (2007)CrossRefGoogle Scholar (discussing fast-food advertisements on Nickelodeon, as well as fast-food product tie-ins to Nickelodeon programming); see generally Jennifer J. Otten et al., Impact of San Francisco's Toy Ordinance on Restaurants and Children's Food Purchases, 2011-12, CDC, (last updated July 17, 2014) (discussing the one-billion-plus “meals” with toy giveaways sold to children by major fast-food chains in 2009).

9 See Pollan, supra note 6, at 15-119 (discussing, at length, the ubiquity of corn in the American dietary landscape); Andrew Schmitz et al., Agricultural Policy, Agribusiness, and Rent-Seeking Behavior 54 (2d ed. 2010) (noting that the American Sugar Alliance, which includes “sugar-beet producers, corn farmers, sugar and corn processors … and others dedicated to preserving a strong domestic sweetener industry … has a significant influence on U.S. farm policy”); Foster, Julie, Comment, Subsidizing Fat: How the 2012 Farm Bill Can Address America's Obesity Epidemic, 160 U. Pa. L. Rev. 235, 238 (2011)Google Scholar (“Commodity production is at the core of the obesity epidemic because highly processed foods and meats are mostly comprised of subsidized corn, soy, and cereal grains.”); see also Marion Nestle, Food Politics 95-110 (10th ed. 2013) (explaining how the food industry influences federal agricultural policy through lobbying and campaign donations).

10 See, e.g., Pollan, supra note 6, at 105-06 (discussing how David Wallerstein, a former board member of McDonald's, came up with the idea of “supersizing” as a means to allow consumers to buy more food without feeling “piggish” for “[g]oing for seconds”).

11 See, e.g., Inst. of Med., Accelerating Progress in Obesity Prevention: Solving the Weight of the Nation 167 (Dan Glickman et al. eds., 2012) (identifying sugary drinks as “the single largest contributor of calories and added sugars to the American diet”); Malik, Vasanti S. et al., Intake of Sugar-Sweetened Beverages and Weight Gain: A Systematic Review, 84 Am. J. Clinical Nutrition 274, 274 (2006)CrossRefGoogle ScholarPubMed (“The weight of epidemiologic and experimental evidence indicates that a greater consumption of [sugar-sweetened-beverages] is associated with weight gain and obesity.”); Woodward-Lopez, Gail et al., To What Extent Have Sweetened Beverages Contributed to the Obesity Epidemic?, 14 Pub. Health Nutrition 499, 505 (2010)Google ScholarPubMed (concluding that sweetened beverage intake “has made a substantive contribution to the obesity epidemic experienced in the USA in recent decades”). Obesity is not the only health problem associated with soda consumption; dental disease is as well. Heller, K.E. et al., Sugared Soda Consumption and Dental Caries in the United States, 80 J. Dental Res. 1949, 1951 (2001)CrossRefGoogle ScholarPubMed (finding significant associations between soda consumption and decayed, missing, or filled surfaces of teeth for persons over twenty-five years of age).

12 See Moss, supra note 6, at 107 (describing 1980 as a “watershed … for America's obesity rate” because it was the year Coke switched from table sugar to high-fructose corn syrup, “which was less expensive and blended more readily with [Coke's] flavoring concentrate ….”).

13 See generally Jennifer L. Harris et al., Rudd Ctr. for Food Policy & Obesity, Sugary Drink F.A.C.T.S. 2014 (2014), (detailing the myriad ways the beverage industry markets sugary drinks, including soda, to children); see also Moss, supra note 6, at 111-12 (discussing Coca-Cola's strategy of marketing to teens and young adults); Nestle, supra note 9, at 197-219 (describing the efforts of major soda companies to target sales and advertising to children, particularly in the school setting).

14 See, e.g., Moss, supra note 6, at 98-99, 111-16 (discussing the “supersizing” phenomenon and major soda companies' intense focus on expanding their presence through “corner” or “convenience stores”); Schlosser, supra note 7, at 54 (“The fast food chains also benefit enormously when children drink more soda.”); Joy Nielsen, Samara & Popkin, Barry M., Patterns and Trends in Food Portion Sizes, 1977-78, 289 JAMA 450, 452 tbl.2 (2003)Google Scholar (showing an increase in the average portion size of soft drinks at fast-food establishments from 10.9 fluid ounces in 1977-1978 to 17.7 fluid ounces in 1994-1996); Young, Lisa R. & Nestle, Marion, Portion Sizes and Obesity: Responses of Fast-Food Companies, 28 J. Pub. Health Pol'y 238, 244 (2007)Google ScholarPubMed (noting that McDonald's largest soda size increased by 457% from 1955 to 2007).

15 The Board of Health is part of the City's Department of Health & Mental Hygiene. N.Y.C., N.Y., Charter § 553 (2004), available at The Board has the power to amend the city health code that the Department enforces. Id. § 558.

16 N.Y.C., N.Y., Health Code § 81.53(b) (2013); see also N.Y.C. Dep't of Health & Mental Hygiene, Notice of Adoption of an Amendment (§ 81.53) to Article 81 of the New York City Health Code 1 (2012), available at

17 Id. at 2 (“The purpose of the amendment is to address the obesity epidemic ….”).

18 Id.

19 Memorandum from Susan Kansagra, Assistant Comm'r, N.Y.C. Bureau of Chronic Disease Prevention & Tobacco Control, to Members of the N.Y.C. Bd. of Health (Sept. 6, 2012), available at (noting that the Board received comments from rule supporters emphasizing oral health benefits of the rule).

20 N.Y.C., N.Y., Health Code § 81.53(b) (2013) (limiting the individual serving size for “sugary drinks” that food service establishments may provide).

21 In response to comments on the proposed rule, the New York Department of Health & Mental Hygiene noted that “customers overwhelmingly gravitate toward the default option.” N.Y.C. Dep't of Health & Mental Hygiene, supra note 16, at 6.

22 The New York Department of Health & Mental Hygiene cited seminal behavioral economics studies in other contexts, such as retirement savings and organ donation, when responding to comments on the rule. Id. at 6 nn.38-40. For more on behavioral economics generally, see Posner, Richard A., Rational Choice, Behavioral Economics, and the Law, 50 Stan. L. Rev. 1551, 1553 (1998)CrossRefGoogle Scholar (“Behavioral economics rejects the assumption that people are rational maximizers of preference satisfaction in favor of assumptions of ‘bounded rationality,’ ‘bounded willpower,’ and ‘bounded self-interest.’”).

23 Grynbaum, Michael M. & Connelly, Marjorie, 60% in City Oppose Soda Ban, Calling It an Overreach by Bloomberg, a Poll Finds, N.Y. Times, Aug. 23 2012Google Scholar, at A19, available at (discussing the American Beverage Association's “big-budget public-relations effort” against the rule).

24 In challenging the rule, the beverage industry joined forces with other groups, including unions and ethnic trade associations. See New York Statewide Coal. of Hispanic Chambers of Commerce v. New York City Dep't of Health & Mental Hygiene, No. 653584/12, 2013 WL 1343607 (N.Y. Sup. Ct. Mar. 11, 2013) (order denying preliminary injunction) (listing plaintiffs).

25 See Soda Jerk!, N.Y. Post, Feb. 24, 2013, at 1, available at; Real Time with Bill Maher: Episode 275 (HBO television broadcast Mar. 15, 2013), available at; The Daily Show with Jon Stewart: Drink Different (Comedy Central television broadcast May 31, 2012), available at (mocking the Portion Cap Rule (PCR)).

26 See New York Appellate Court Upholds Ruling Invalidating New York City's “Soda Ban,” New York's Highest Court Will Now Review, U.S. Chamber of Commerce Litig. Ctr. (last visited May 5, 2015), (“The U.S. Chamber of Commerce led a large, diverse business coalition in support of a legal challenge against New York City's so-called ‘soda ban’ ….”).

27 The New York State Conference of the NAACP filed amicus briefs opposing the PCR in the appellate litigation. See, e.g., Brief for N.Y. State Conference of NAACP et al. as Amici Curiae Supporting Respondents, New York Statewide Coal. of Hispanic Chambers of Commerce v. New York City Dep't of Health & Mental Hygiene, 23 N.Y.3d 681 (2014) (No. 653584/12). Then-president-and-CEO of the NAACP, Benjamin Jealous, publicly opposed the rule. Sal Gentile & Allison Koch, NAACP President Comes Out Against Blocked NYC Soda Ban, (Mar. 16, 2013, 12:18 PM),

28 See Michael M. Grynbaum, In N.A.A.C.P., Soda Industry Finds Ally, N.Y. Times, Jan. 24, 2013, at A20, available at (noting “ardent[] oppos[ition]” to rule from “several members of the City Council's Black, Latino, and Asian Caucus”); Marion Nestle, Soda Industry Exploits NAACP and Hispanic Federation in Soda Cap Lawsuit, Food Politics (Jan. 25, 2013),

29 See Confessore, Nicholas, Bottlers and Minority Groups, Soda War Allies, N.Y. Times, Mar. 13, 2013Google Scholar, at A1, available at (“Dozens of Hispanic and African-American civil rights groups, health advocacy organizations and business associations have joined the beverage industry in opposing soda regulation around the country in recent years, arguing that such measures … are discriminatory, paternalistic or ineffective.”).

30 Id. at A21 (chronicling the decades-long financial relationships “between soda companies and [Hispanic and African-American] nonprofit organizations”); Grynbaum, supra note 28, at A20 (discussing the NAACP's “close ties to big soft-drink companies” like Coca-Cola, which has “donated tens of thousands of dollars to” NAACP projects); Grace Elizabeth Hale, Op-Ed., When Jim Crow Drank Coke, N.Y. Times, Jan. 29, 2013, at A23 (describing the NAACP's opposition to PCR as a “favor for a stalwart ally—Coca-Cola alone has given generously to support N.A.A.C.P. initiatives over the years”), available at

31 Grynbaum & Connelly, supra note 23.

32 See, e.g., Frederick A. Brodie, States Debate Required Use of Seat Belts, Wall Street J., Jun. 12, 1984, at 1, available at PROQUEST, Doc. No. 397863297 (describing those opposed to mandatory seatbelt laws as “highly vocal individuals who don't want the government protecting them from themselves …”); McGovern, Jim, Inkeeper Wants to End Smoking Ban, 24 Vermont Bus. Mag., Apr. 1, 1996, at 10Google Scholar, available at PROQUEST, Doc. No. 200602605 (describing resistance from restaurant owners against 1995 Vermont indoor smoking ban on the basis that the ban “pits the state against the rights of private business owners and … restricts an individual's freedom of choice”).

33 Examples of such interventions include the federal government's efforts to make school lunches more nutritious, and the efforts in San Francisco and Santa Clara County, California, to restrict toy giveaways with fast-food children's meals. For more on the controversy surrounding each, see Confessore, Nicholas, How School Lunch Became the Latest Political Battleground, N.Y. Times Mag. (Oct. 7, 2014)Google Scholar, (discussing federally-funded school lunches); see also Diller, Paul A., Why Do Cities Innovate in Public Health? Implications of Scale and Structure, 91 Wash. U. L. Rev. 1219, 1239-40 (2014)Google Scholar (discussing “Happy Meal Bans”).

34 Diller, supra note 33, at 1229.

35 Id. at 1230, 1230 n.50.

36 Id. at 1238; John Tierney, Op-Ed., One Cook Too Many, N.Y. Times, Sept. 30, 2006, at A15, available at (describing New York City's trans fat ban as “the biggest step yet in turning the Big Apple into the Big Nanny”); see also Brittany Schaeffer, No Fries for You!, Willamette Week (Oct. 25, 2006, 12:00 AM), (noting “[f]ears of overzealous government regulation” and warning readers, disingenuously, to “[e]at your doughnuts while you still can” while Multnomah County, Oregon, considered banning added trans fats in restaurant food).

37 Leon Stafford, Soda Wars: Cities Seek Restrictions, Taxes to Curb Obesity, (Nov. 12, 2012, 6:32 AM), (noting that officials in Washington, D.C. and Cambridge, Massachusetts, were considering emulating New York City's PCR).

38 For the seminal case illustrating the states' authority to impose public health regulations, see Jacobson v. Massachusetts, 197 U.S. 11 (1905) (upholding local health department's requirement of smallpox vaccination pursuant to a state statute delegating such authority).

39 See id.

40 See Wiseman, Samuel R., Liberty of Palate, 65 Me. L. Rev. 737, 746 (2013)Google Scholar (“[T]here is no general, fundamental right to food liberty ….”).

41 See Williamson v. Lee Optical of Okla. Inc., 348 U.S. 483, 488 (1955) (“The day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought.”).

42 The lead plaintiffs retained Latham & Watkins to challenge the PCR. New York Statewide Coal. of Hispanic Chambers of Commerce v. New York City Dep't of Health & Mental Hygiene, 16 N.E.3d 538, 540 (N.Y. 2014) (listing counsel of record); Stendahl, Max, Law360 Names Law Firms of the Year, Law 360 (Jan. 1, 2014Google Scholar, 10:09 AM), (describing Latham as a “white-shoe law firm” and a “legal powerhouse[]” with over 2000 lawyers). Indeed, for the appellate litigation, Latham brought in numerous lawyers from its office in Washington, D.C.. The lead lawyer was Richard P. Bress, a high-profile appellate litigator with a national practice. See Kurt Orzeck, Appellate MVP: Latham & Watkins' Richard Bress, Law360 (Nov. 30, 2013, 4:19 PM), Two other lawyers from Latham's D.C. office were former U.S. Supreme Court clerks: Lori Alvino McGill, a clerk to Ruth Bader Ginsburg in 2005-2006, and Michael E. Bern, a clerk to Sonia Sotomayor in 2011-2012. Kurt Orzeck, Rising Star: Quinn Emmanuel's Lori Alvino McGill, Law360 (April 16, 2014, 4:36 PM),; Michael E. Burn Profile, Latham & Watkins LLP (last visited May 5, 2015),

43 Super, David A., Against Flexibility, 96 Cornell L. Rev. 1375, 1387, 1387 n.32 (2011)Google Scholar (contrasting New York and federal constitutional approaches to delegation); Funk, William, Rationality Review of State Administrative Rulemaking, 43 Admin. L. Rev. 147, 162 n.97 (1991)Google Scholar (“Unlike the federal system … the antidelegation doctrine stands as a significant limitation [in New York].”); see also Greco, Gary J., Standards or Safeguards: A Survey of the Delegation Doctrine Among the States, 8 Admin. L.J. Am. U. 567, 578, 581 (1994)Google Scholar (including New York among a “minority of states [that] still adhere to a strict non-delegation policy”).

44 Boreali v. Axelrod, 517 N.E.2d 1350, 1355 (N.Y. 1987).

45 N.Y.C., N.Y., Charter § 556 (2004).

46 New York Statewide Coal. of Hispanic Chambers of Commerce v. New York City Dep't of Health & Mental Hygiene, 16 N.E.3d 538, 543 (N.Y. 2014).

47 See Brief for Paul A. Diller et al., as Amici Curiae Supporting Respondents, New York Statewide Coal., 16 N.E.3d 538 (N.Y. 2014) (No. 653584/12), available at; Diller, Paul A., Local Health Agencies, the Bloomberg Soda Rule, and the Ghost of Woodrow Wilson, 40 Fordham Urb. L.J. 1859, 1874-77 (2013)Google Scholar (criticizing Boreali and its application to the PCR by the trial and intermediate appellate courts).

48 New York Statewide Coal., 16 N.E.3d at 542.

49 See Brief for Paul A. Diller et al., supra note 47.

50 Indeed, the court noted that “cost-benefit analysis is the essence of reasonable regulation ….” New York Statewide Coal., 16 N.E.3d at 697.

51 Id. at 547 (emphases added).

52 Id.

53 Id. at 547-48 (discussing window guards, drinking water, lead paint, and calorie labeling); id. at 556 (Read, J., dissenting) (discussing the Board's 2007 trans fat ban, which was followed by city council legislation).

54 Id. at 547 (emphasis added).

55 Id. at 549 (emphasis added).

56 Id.

57 See Freudenberg, supra note 6, at 4-19.

58 N.Y.C., N.Y., Health Code § 81.53(b) (limiting the individual serving size for “sugary drinks” that food service establishments may provide).

59 New York Statewide Coal., 16 N.E.3d at 548.

60 Id.

61 See id. at 547-48.

62 Id.

63 Id. at 560.

64 Pelman v. McDonald's Corp., 237 F. Supp. 2d 512, 533 (S.D.N.Y. 2003) (“Nobody is forced to eat at McDonald's…. Perhaps even more pertinent, nobody is forced to supersize their meal or choose less healthy options on the menu.”).

65 For criticism of the trial court's reasoning in Pelman, see Diller, Paul A., Combating Obesity with a Right to Nutrition, 101 Geo. L.J. 969, 1004-07 (2013)Google Scholar; Benforado et al., supra note 7, at 1796-98 (noting that the trial court judge, Robert Sweet, wrongly “comes to the pro-industry position that … the plaintiffs' acts were fully volitional and informed”). After two failed attempts, the plaintiffs were finally permitted to proceed to discovery on claims of deceptive advertising under New York's statute prohibiting deceptive trade practices. Pelman v. McDonald's Corp., 452 F. Supp. 2d 320, 328 (S.D.N.Y. 2006). After the district court denied the plaintiffs' motion for class certification four years later, the plaintiffs voluntarily dismissed their remaining claims against McDonald's. Pelman v. McDonald's Corp., 272 F.R.D. 82, 84 (S.D.N.Y. 2010) (denying class certification), appeal dismissed per stipulation, No. 1:02CV07821 (S.D.N.Y. Feb. 25, 2011).

66 R.J. Reynolds Tobacco Co. v. FDA, 696 F.3d 1205, 1207, 1211 (D.C. Cir. 2012).

67 Id. at 1216-17 (“These inflammatory images … cannot rationally be viewed as pure attempts to convey information to consumers. They are unabashed attempts to evoke emotion (and perhaps embarrassment) and browbeat consumers into quitting [smoking].”). The D.C. Circuit has since backtracked from the R.J. Reynolds panel's analysis on a separate point. See Am. Meat Inst. v. USDA, 760 F.3d 18, 22-23 (D.C. Cir. 2014) (overruling R.J. Reynolds insofar as it might be read to hold that the government may only compel factual speech when it has an interest in correcting deception).

68 R.J. Reynolds, 696 F.3d at 1212 (“[H]ow much leeway should this Court grant the government when it seeks to compel a product's manufacturer to convey the state's subjective—and perhaps even ideological—view that consumers should reject this otherwise legal, but disfavored, product?”); see also Mermin, Seth E. & Graff, Samantha K., The First Amendment and Public Health, at Odds, 39 Am. J.L. & Med. 298, 300-01 (2013)Google ScholarPubMed (debunking the “myth of the rational consumer” upon which First Amendment commercial speech jurisprudence is predicated).

69 See generally Lochner v. New York, 198 U.S. 45 (1905) (ushering in a period of Supreme Court jurisprudence known for striking down any regulation that impeded laissez-faire economic policy).

70 See Leib, Ethan J., Adding Legislation Courses to the First-Year Curriculum, 58 J. Legal Educ. 166, 168 n.9, 188 (2008)Google Scholar; see also Manning, John F. & Stephenson, Matthew, Legislation and Regulation and Reform of the First Year, 65 J. Legal Educ. __ (forthcoming 2015)Google Scholar.

71 For an example of such a course offering, see Claire A. Hill, Introduction to Behavioral Law and Economics, in Univ. of Minnesota Presents: The Thirty-Second Annual Summer Program of Continuing Legal Education Seminars 7 (2011),

72 Or, as the FDA put it, it must combat tobacco marketing by “bringing a butter knife to a gun fight.” R.J. Reynolds, 696 F.3d at 1221.