Trans Fat Bans and Human Freedom - David Resnik, National Institutes of Health

The American Journal of Bioethics, 10(3): 27–32, 2010
ISSN: 1526-5161 print / 1536-0075 online
DOI: 10.1080/15265160903585636

  Target Article

       Trans Fat Bans and Human Freedom
                                            David Resnik, National Institutes of Health

A growing body of evidence has linked consumption of trans fatty acids to cardiovascular disease. To promote public health, numerous state and local governments in
the United States have banned the use of artificial trans fats in restaurant foods, and additional bans may follow. Although these policies may have a positive impact on
human health, they open the door to excessive government control over food, which could restrict dietary choices, interfere with cultural, ethnic, and religious traditions,
and exacerbate socioeconomic inequalities. These slippery slope concerns cannot be dismissed as far-fetched, because the social and political pressures are place to
induce additional food regulations. To protect human freedom and other values, policies that significantly restrict food choices, such as bans on types of food, should be
adopted only when they are supported by substantial scientific evidence, and when policies that impose fewer restrictions on freedom, such as educational campaigns
and product labeling, are likely to be ineffective.
Keywords: ethics, freedom, policy, public health, slippery slope, trans fats

Trans fatty acids (or trans fats) are unsaturated trans-isomer                          clude information about trans fat content (Food and Drug
fatty acids, which may be monosaturated or polyunsatu-                                  Administration 2006). The FDA estimates that trans fat la-
rated. Small amounts of trans fats occur naturally in meat                              beling could save up to 500 lives per year in the United
and dairy products, but the largest source of these lipids in                           States by reducing the incidence of cardiovascular disease
the human diet comes from artificial sources, such as par-                              (Food and Drug Administration 2006). Consumer groups
tially hydrogenated vegetable oils used in cooking and food                             and public health organizations have argued that product
preparation (Institute of Medicine 2002). Trans fats became                             labeling is not a sufficient response to the problem posed
popular with food manufacturers, bakeries, and restaurants                              by trans fats, and that there should be a ban on all arti-
in the 1960s, because they can enhance the taste of some                                ficial trans fats in food (Ban Trans Fats 2009; Center for
foods and help to preserve texture. Trans fats used in frying                           Science in the Public Interest 2008; American Medical Asso-
also are more durable than other types of oils and have a                               ciation 2008). Several major cities and counties (New York
neutral taste (Severson 2003).                                                          City, Boston, Philadelphia, King County, WA, and Nassau
     A growing body of evidence has linked consumption of                               Country, NY), the state of California, and Puerto Rico have
trans fats to cardiovascular disease (Woodside et al. 2008).                            heeded this call and passed laws banning the use of artificial
According to a meta-analysis of four prospective cohort                                 trans fats in restaurant food. More bans are likely to follow
studies, a 2% increase in energy uptake from trans fats                                 (Steinhauer 2008; Center for Science in the Public Interest
is associated with a 23% increased risk of cardiovascular                               2008).
disease. Trans fats are also associated with sudden death                                    While many view trans fat bans as an important pol-
from cardiac causes (Mozaffarian et al. 2006). Trans fats are                           icy tool for promoting public health, others are disturbed
thought to promote cardiovascular disease by increasing                                 by the government’s encroachment on freedom and auton-
levels of low-density lipoprotein (LDL or “bad”) cholesterol                            omy. ABC News’s John Stossell writes, “This week, New
in the blood and decreasing levels of high-density lipopro-                             York became the first big city to ban trans fats. Gee, I’m all
tein (HDL or “good”) cholesterol (Institute of Medicine                                 for good health, but shouldn’t it be a matter of individual
2002; Ascherio 2006). According to some experts, replacing                              choice?” David White (2007) expresses a similar sentiment:
artificial trans fats with healthier oils, such as olive oil or                         “Like smoking, the choice to eat high-calorie foods might
canola oil, could save 30,000 to 100,000 lives per year in the                          not always be prudent. But government prohibition of that
United States (American Medical Association 2008).                                      choice is a remarkable confiscation of freedom.” National
     In January 2006, the Food and Drug Administra-                                     newspaper columnist Walter Williams raises slippery slope
tion (FDA) required that nutrition labels on foods in-                                  concerns:

This article is not subject to U.S. Copyright.
Acknowledgments: This research was supported by the intramural program of the National Institute of Environmental Health Sciences
(NIEHS), National Institutes of Health (NIH). The views expressed in this article are solely the views of the author. They do not represent
the opinions of the NIEHS, NIH, or the U.S. government. I am grateful to Chris Portier and Bill Schrader for helpful comments.
Address correspondence to David Resnik, National Institutes of Health, National Institutes of Environmental Health Sciences, Mail Drop
NH 06 Box 12233, Research Triangle Park, NC 27709, USA. E-mail:

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The American Journal of Bioethics

    The nation’s food zealots have . . . started out with a small         that mandatory labeling of products with trans fats reduces
    target—a ban on restaurant use of trans fats. Here’s what I           consumption of trans fats, but there have been no studies on
    predict is their true agenda: If banning a fat that’s only two        the effects of trans fat bans (Niederdeppe and Frosch 2009).
    percent of our daily caloric intake is wonderful, why not ban         Trans fat bans could, paradoxically, reduce some unhealthy
    saturated fats, the intake of which is much higher? Then there’s
                                                                          behaviors but encourage others. Many food manufactur-
    the size of restaurant servings. Instead of a law simply requir-
                                                                          ers began using artificial trans fats in commercial products
    ing restaurants to label the calories in a meal, there will be laws
    setting a legal limit on portions. (Williams 2007)                    during the 1980s and 1990s to reduce the saturated fat and
                                                                          cholesterol content of food, because the medical consensus
    Should we embrace trans fat bans as a sound public                    at that time was that saturated fats and cholesterol are un-
policy or should we be wary of this strategy for controlling              healthy. As it turned out, trans fats are much worse for the
the human diet? Are trans fat bans the best thing since sliced            human heart than saturated fats; some saturated fats, such
bread or the road to food fascism? In this essay I examine                as those contained in peanut and canola oils, are good for
the ethical arguments for and against trans fat bans (i.e.,               you; and moderate amounts of cholesterol in the diet are es-
bans on trans fats in foods prepared by restaurants or other              sential to health (Severson 2003). While I am not suggesting
commercial food producers). I argue that while trans fat                  that there is no scientific basis for reducing the consumption
bans may help to improve public health, they represent                    of artificial trans fats, I do think that much more research is
a worrisome policy trend, because they open the door to                   needed on the public health effects of trans fat policies, so
further restrictions on food. Though few people will mourn                that we can avoid repeating the nutrition policy mistakes of
the loss of artificial trans fats from restaurant food, the issue         the past.
here is much larger than that. At stake is a freedom that
most of us exercise every day but often take for granted: the             Economic Cost-Savings
freedom to choose what we eat.                                            The second argument for trans fat bans is an economic one.
                                                                          According to this line of thought, bans on artificial trans fats
ARGUMENTS FOR TRANS FAT BANS                                              can save potentially billions of dollars in health care and
                                                                          related costs by reducing prevalence and severity of cardio-
Public Health Promotion                                                   vascular disease (Ban Trans Fats 2009). In the United States,
The two main arguments for trans fat bans are consequen-                  over 80 million people (36% of the population) have car-
tialist in form. According to the first argument, trans fat bans          diovascular disease (American Heat Association 2009). The
are justified in order to promote an important social good,               direct and indirect costs of cardiovascular disease amount
public health. Trans fat bans can promote public health by                to an estimated $305 billion in the United States in 2009
reducing the consumption of trans fats, which could reduce                (Centers for Disease Control and Prevention 2009a). If a
the incidence and severity of cardiovascular disease. Ac-                 nationwide ban on artificial trans fats reduced the costs of
cording to one estimate, totally eliminating artificial trans             cardiovascular disease by only 10%, this would save $30
fats from the food supply in the United States would save                 billion per year.
50,000 lives per year (Center for Science and the Pubic In-                    The strength of the economic argument depends on the
terest 2008). Trans fat bans are cut from the same cloth as               empirical premise that trans fats ban will reduce the costs
other laws that safeguard the food supply, such as such                   associated with cardiovascular disease. This assertion, like
as quality and safety standards for restaurants and food                  the empirical premise in the public health argument, is also
manufacturers, regulation of food additives, and product                  highly plausible, given what we know about the effects ar-
labeling requirements (Fortin 2009). Food safety and qual-                tificial trans fats on human health, but it is not unassailable.
ity laws help to prevent food manufacturers from harming                  Consider the costs of smoking. For many years, health pol-
the public with unsafe or unhealthy products, and they can                icy analysts have assumed that smoking places enormous
assist consumers in making healthy choices. Recent events,                economic burdens on society by increasing costs related
such as adulteration of powdered milk in China with the in-               to lung cancer, pulmonary disease, cardiovascular disease,
dustrial chemical melamine, which killed five children and                and other health problems (World Bank 1999). Smoking
sickened over 300,000, and contamination of peanut butter                 costs the United States nearly $200 billion per year in health
with Salmonella in the United States, which killed nine peo-              care expenditures and lost productivity (Centers for Disease
ple and sickened over 570, illustrate the importance of food              Control and Prevention 2009b). A recent study examining
safety and quality as a public health matter (Barboza 2008;               the lifetime costs of smoking found that smokers actually
Martin 2009).                                                             cost society less than nonsmokers, because smokers die ear-
     The strength of the public health argument depends on                lier. The investigators examined the costs of three cohorts:
the empirical premise that trans fat bans will promote public             an obese cohort, a smoking cohort, and a healthy living co-
health. While this assertion is highly plausible, given what              hort. The healthy living cohort cost society the most money,
we know about the adverse effects of trans fats on the cardio-            because they lived an average of 7 years longer than the
vascular system, it is not indubitable. Because trans fat bans            smoking cohort and 4.5 years longer than the obese cohort.
have been in effect for only a few years, very little is known            During those extra years of life, people in the healthy liv-
about how they impact public health. One study has shown                  ing cohort had costs associated with various diseases of

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Trans Fat Bans and Human Freedom

aging, such as bone fractures, arthritis, stroke, dementia,            on artificial trans fats do not have a major impact on food
urinary-tract infections, and loss of hearing and vision (van          consumers, since most people do not care whether they eat
Baal et al. 2008). Some authors have disputed the policy               products that contain these substances. People do not have
implications of this study because it does not take into ac-           a special fondness for artificial trans fats, but rather for the
count costs of quality-adjusted life years lost (McPherson             foods that contain them. Removing artificial trans fats from
2008). The debate over the costs of smoking suggests that              cookies, crackers, hamburgers, and French fries will make
we should be careful about making claims about the po-                 little difference to consumers as long as this does not affect
tential cost-savings of trans fat bans. While there clearly is a       how these foods taste, smell, look, or feel. Bans on artificial
factual basis for claiming that trans fat bans can save society        trans fats mostly affect food producers, not consumers.
a great deal of money, more research is needed on the effects               Second, even if some consumers have a strong prefer-
of these policies, including effects on the food industry.             ence for artificial trans fats, laws that ban commerce and
                                                                       trade in these substances can be justified to promote public
ARGUMENTS AGAINST TRANS FAT BANS                                       health. As noted earlier, trans fat bans fit into the safety and
                                                                       quality regulatory framework that operates in the United
Restrictions of Freedom
                                                                       States and other industrialized nations. Banning trans fats
The main ethical argument1 against trans fat bans is that              is no different, in principle, from banning food additives
these laws, whether at the local, state, or federal level, con-        that have been found to be unhealthy, such as cyclamate
stitute an unjustifiable restriction on the freedom to de-             (Henkle 1999). The reasoning that justifies food safety and
cide what one eats. One could argue that the ability to                quality laws is similar to the reasoning that justifies other
decide what one eats, though not important as freedom                  public health measures that restrict human freedom, such as
of speech or religion, is an important freedom nonetheless.            mandatory vaccinations, disease surveillance, and isolation
First, food has a significant impact on one’s quality of life.         and quarantine. Though freedom is an important value, it
People take great pleasure in eating, preparing, and serv-             can be overridden in some circumstances to promote impor-
ing food. Food is more than mere nutrition: it is one of               tant social goals, such as preventing people from harming
life’s simple pleasures. Second, food has considerable eth-            themselves or others, and promoting the health of the pop-
nic, cultural, and religious significance. Different ethnic and        ulation as a whole (Kass 2001; Childress et al. 2002; Gostin
cultural groups have their own cuisines and culinary prac-             2007; Buchanan 2008; Gostin and Gostin 2009).
tices. In any medium-sized city in the United States, one
can find restaurants that serve Chinese, Japanese, Italian,
French, Mexican, Indian, and Thai food. There are also many            The Slippery Slope
different foods associated with particular geographic re-              A critic of trans fat bans could acknowledge that not many
gions in the United States, such as Southern fried chicken,            people have a particular fondness for artificial trans fats
Texas barbeque, Boston baked beans, Philadelphia steak                 and that food safety and quality laws can be justified to
sandwiches, and so on. Food also has religious significance,           promote public health, but could maintain that there is a
as different faiths have various rules, customs, and teach-            larger issue at stake here: the continued erosion of dietary
ings related to food (Montanari 2006). Third, food plays an            freedom. Trans fat bans are very different from food safety
important role in family traditions and customs. Food takes            and quality laws because they aim to prevent consumers
center stage at family reunions and at gatherings associated           from making unhealthy choices, instead of preventing pro-
with particular holidays, such as Thanksgiving, Christmas,             ducers from causing harm. Requiring food manufacturers
and Independence Day. Families also have special recipes               to ensure that their products are not contaminated with
handed down from generation to generation. Thus, the free-             microorganisms that can cause severe illness or death is
dom to decide what one eats is an important freedom that               very different from preventing manufacturers from selling
should not be restricted unnecessarily.                                products that increase the risk of cardiovascular disease if
     A proponent of trans fat bans can acknowledge that the            consumed for many years, because most people will not vol-
ability to decide what one eats is an important freedom but            untarily choose to eat food that is contaminated or spoiled,
still maintain that trans fat bans are justifiable. First, bans        while people often choose to eat foods that can cause harm if
                                                                       eaten for many years. Bans on the use of trans fats in restau-
1. Mello (2009) has examined some of the legal issues concerning       rant food would lead to additional bans on trans fats, which
the trans fat policies adopted by New York City and other cities       would open the door to further restrictions on the human
and states, including preemption by federal laws and insufficient      diet, since there is no difference, in principle, between ban-
opportunities for public comment. According to Mello, one of the       ning artificial trans fats and banning other unhealthy foods,
problems with local policymaking on trans fats is that this could
                                                                       such as processed meats and sugared drinks. Today, trans
create a patchwork of rules that will create compliance problems for
                                                                       fats; tomorrow, hot dogs.
businesses and spark legal battles over preemption issues. Though
Mello raises some important legal issues, her analysis does not            Support for this empirical slippery slope argument
get to the heart of the matter, since she does not voice any ethical   comes from the following facts: (1) we already know about
objections to trans fat laws. Rather, her article supports the view    the adverse health effects of many foods and science is likely
that trans fat policies should be made at the federal level, not the   to discover more; (2) health advocates are likely to continue
local or state level.                                                  to push for additional regulations; and (3) health-conscious

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The American Journal of Bioethics

consumers and politicians are likely to be receptive to            the distinction between foods and food additives is not as
additional regulations. For example, consumption of red            clear as one might think. Many substances added to im-
meat and processed meat increases the risk of colon cancer         prove the taste, texture, flavor, color, or freshness of food,
(Johnson and Lund 2007), and consumption of sugared                such as sugar, corn syrup, yeast, citric acid, and vitamins,
drinks, especially those high in fructose, increases the risk of   might also be viewed as foods. It is not at all obvious how
obesity, diabetes, and heart disease (Brown et al. 2008). Em-      one could make a conceptually stable distinction between
boldened by victories against trans fats, health advocates         artificial trans fats and other lipids added to foods. A policy
could go after red meats, processed meats, sugared drinks,         framework that focused on specific kinds of fats defined as
and other unhealthy foods (Chan 2008).                             “food additives” could collapse under social and political
     The social consequences of sliding down the slope to-         pressure for additional food regulation. Second, although
ward additional food regulation could outweigh any pub-            there are powerful forces that would resist attempts to ex-
lic health gains that might result. Since restrictions on the      tend the scope of food regulation beyond trans fats, it is
human diet can impact quality of life, family traditions,          not clear to me that these forces would be able to hold the
and cultural, ethnic, and religious practices, wide-ranging        line. Restaurants and food connoisseurs who opposed trans
attempts to control food choices could have adverse conse-         fats bans in New York City, California, and other jurisdic-
quence on society. Few people would want to live in a world        tions could not resist effective campaigns by public health
in which government health experts dictate what is on the          organizations and consumer groups.
menu or how it should be prepared.
     Additionally, increased regulation of the human diet
could lead to social and economic injustices. Policies that        TOWARD RATIONAL FOOD POLICIES
make it more difficult to obtain affordable nutrition, such        The empirical slippery slope argument developed in the
as taxes on food, can exacerbate socioeconomic inequali-           previous section cannot be easily dismissed as a flight of
ties (Caraher and Cowburn 2005). For example, hot dogs,            fancy, since it is firmly rooted in existing political, social,
bologna, and other processed meat products provide an              economic, and biological realities. To avoid the undesir-
inexpensive form of protein, but they also are high in satu-       able outcomes that could occur from excessive government
rated animal fat, the consumption of which contributes to          control over the human diet, food policy decisions should
cardiovascular disease (Woodside et al. 2008). If the gov-         be made with an eye toward not only promoting public
ernment taxes or bans these foods on the grounds that they         health but also preserving human freedom. One of the cen-
contribute to heart disease, then low-income people might          tral dilemmas in public health policy is how to balance
need to seek other, more expensive sources of protein.             health promotion and other important values, such as free-
     A standard response to an empirical slippery slope argu-      dom and justice (Kass 2001; Childress et al. 2002; Gostin
ment is to assert that the slide toward undesirable outcomes       2007).
can be avoided by implementing rules, procedures, or def-               To develop food policies that appropriately balance pub-
initions designed to stabilize policy and practice (Lewis          lic health and freedom, and therefore address slippery slope
1999). A proponent of trans fat bans could claim that so-          concerns, it will be useful is to establish a set of conditions
ciety can avoid excessive food regulation by distinguishing        that must be met to restrict human freedom. These condi-
between bans on food additives and bans on foods. A food           tions can help to ensure that policy decisions will not be
additive is a substance added to food to improve taste, tex-       made willy-nilly, but will be appropriately articulated, re-
ture, flavor, color, or freshness. Bans on cyclamates, which       viewed, and justified (Kass 2001). The following are some
are food additives that enhance sweetness, have not led            conditions that can be applied to proposed policies that re-
to bans on foods that enhance sweetness, such as sugar             strict human freedom to promote public health (Childress
(Henkle 1999). By limiting the scope of trans fat bans to          et al. 2002):
prohibitions on food additives, such as artificial trans fats,
society can promote public health while safeguarding other         r Effectiveness: there must be substantial scientific evidence
values.                                                                that the policy is likely to be effective at achieving an
     A proponent of trans fats bans could also point out that          important pubic health goal.
there are social and economic forces in place that would           r   Necessity: there must be substantial scientific evidence
counteract a move from trans fat bans to bans on other foods.          that the policy is necessary to achieve the public health
For example, tobacco companies, automobile manufactur-                 goal.
ers, and many other corporations have mounted influential          r   Proportionality: the potential public health gains of the
(and often successful) campaigns against government regu-              policy must outweigh the adverse social impacts and
lation. The food industry would be a powerful opponent of              other moral considerations.
any attempt to extend the scope of food regulation beyond          r   Least infringement: the policy must impose the least re-
trans fats.                                                            strictions on freedom necessary to promote the public
     While I appreciate the merits of these critiques of the           health goals.
empirical slippery slope argument, I am not convinced that         r   Publicity: the policy must be justified to the public, with
they defuse concerns about excessive food regulation. First,           the reasons for restricting freedom clearly explained.

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Trans Fat Bans and Human Freedom

How might these conditions apply to trans fat bans? The              food producers to follow specific rules, and impose penal-
trans fat bans enacted by state and local governments may            ties for noncompliance. Bans on particular food items are
meet three of these conditions. Trans fat bans probably may          the most restrictive methods of promoting public health,
be effective, because, as mentioned previously, trans fat bans       because bans prevent people from making some types of
may help to promote public health, though more research              dietary choices and they prevent food producers from sell-
is needed. Trans fat bans may also meet the proportional-            ing particular types of foods.
ity condition as well, because the public health gains could             Thus, although trans fat bans probably will help to pro-
outweigh adverse social impacts and other moral consid-              mote public health, a convincing argument can be made
erations. Because few people have special preference for             that governments have enacted these policies without de-
artificial trans fats, trans fats bans probably do not have a        termining whether other policies, which do not significantly
significant impact quality of life, cultural, ethnic, or religious   restrict human freedom, are effective at promoting public
traditions, or family values. Trans fat bans will not exacer-        health. A better way of dealing with the trans fat problem
bate socioeconomic inequalities by increasing the price of           would be give education and product labeling a chance to
food, though more research is needed to verify this point.           work, before resorting to the extreme measure of banning
Trans fat bans also meet the publicity condition, because            trans fats. By enacting food policies that limit the freedom
they have been discussed and debated government hear-                to choose what one eats only as an option of last resort, the
ings, public comment meetings, and other public forums               government can strike a fair balance between promoting
(Mello 2009).                                                        public health and protecting human freedom (Wikler 1978;
     The trans fat bans that have been enacted thus far may          Mytton 2007).
not meet the other two conditions, however. The bans may
not meet the necessity condition, because a combination of           CONCLUSION
other policies, such as education and mandatory labeling,            While it is clear that consumption of artificial trans fats
may be equally effective at achieving public health goals.           poses a significant risk to human health, it is not clear how
Proponents of trans fat bans have asserted that they are             societies should respond to this risk. Numerous state and
necessary, because the other methods for promoting public            local governments in the United States have banned the use
health are not effective enough, since consumers may not             of artificial trans fats in restaurant foods, and other bans
understand the risks of trans fats or heed warnings or advice        may follow. Although these policies may have a positive
(Ban Trans Fats 2009). However, this claim rings hollow, be-         impact on human health, they open the door to excessive
cause bans have been imposed before public education and             government control over food, which could restrict dietary
food labeling have been given a chance to work. Trans fats           choices, interfere with cultural, ethnic, and religious
have only been on the public’s radar screen since about              traditions, and exacerbate socioeconomic inequalities.
2001. Prior to this time, people were more concerned about           These slippery slope concerns cannot be dismissed as
saturated fats in the diet (Severson 2003). FDA labeling and         far-fetched, because the social and political pressures are
voluntary labeling by fast food restaurants began in 2006,           in place to induce additional food regulations. To protect
but the movement to ban trans fats began before then. Ad-            human freedom and other values, policies that significantly
mittedly, educational campaigns and product labeling may             restrict food choices, such as bans on types of food, should
prove to be ineffective, but then again, they may not. The           be adopted only when they are supported by substantial
important point is that we simply do not have enough ev-             scientific evidence and when policies that impose fewer
idence at this time to declare that educational campaigns            restrictions on freedom, such educational campaigns and
and product labeling will fail and that some other policies          product labeling, are likely to be ineffective. 
are necessary.
     If it turns out that other methods of decreasing the con-
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