Legislating about Unhealthy Food: A Millian Approach

Tackling food-related health conditions is becoming one of the most pressing issues in the policy agendas of western liberal democratic governments. In this article, I intend to illustrate what the liberal philosopher John Stuart Mill would have said about legislation on unhealthy food and I focus especially on the arguments advanced by Mill in his classic essay On Liberty ([1859] 2006). Mill is normally considered as the archetype of liberal anti-paternalism and his ideas are often invoked by those who oppose state paternalism, including those who reject legislation that restricts the consumption of unhealthy food. Furthermore, his views have been applied to related policy areas such as alcohol minimum pricing (Saunders 2013) and genetically modified food (Holtug 2001). My analysis proceeds as follows. First, I show that Mill’s account warrants some restrictions on food advertising and justifies various forms of food labelling. Second, I assess whether and to what extent Mill’s ‘harm principle’ justifies social and legal non-paternalistic penalties against unhealthy eaters who are guilty of other-regarding harm. Finally, I show that Mill’s account warrants taxing unhealthy foods, thus restricting the freedom of both responsible and irresponsible eaters and de facto justifying what I call ‘secondary paternalism’.