Ezra has a prima facie reasonable enough defense of New York’s transfat ban:
Restaurants don’t have labels. And they’re not one size fits, or serves, all. You could force a big sign in each establishment that uses the substances, or a little emblem next to each food that carries the fats, and that would be a perfectly acceptable solution. On the other hand, given that there’s no conceivable social good in consumption of the fats, and as Scott points out, no conceivable consumer restrictions caused by eliminating them, there’s really no sense in simply ensuring that only those without sufficient choices will continue consuming the stuff. Indeed, the ban simply decides that there’s no real reason to preserve the freedom of businesses to minimally cut costs by harming the health of their consumers, most of whom won’t know they’re being damaged till far too late.
Now, I have no problem with some sort of labeling requirement—making places print the transfat items in red with a little warning at the bottom of the menu or something. The question of what kind of information a seller is expected to volunteer about a product in order that buyers can give informed consent is fundamentally a political judgment call, and if we’ve decided information about transfat content is relevant, fine. No doubt a lot of places would just switch to other, presumably healthier, fats rather than trying to sell foods customers would be more prone to avoid.
If that’s the case, then why make a fuss about the ban? Admittedly, I’m probably not going to plant myself at the diner counter a-la Walter Sobchak hollering: “These are basic freedoms! This affects all of us!” Still, I think Ezra’s approach misses an important point which, just to annoy him, I’ll make by quoting Hayek: “If we knew how freedom would be used, the case for it would largely disappear.” Which is to say, we want to prefer informational over prohibitive solutions, even when there’s “no conceivable social good” precisely because market choice is the best vehicle for finding social goods we haven’t conceived.
If Ezra is right, we’ll probably get the same de facto outcome under a labeling-requirement regime: If transfat foods are really indistinguishable in taste and texture and only negligibly more expensive, relatively few people are going to prefer the WARNING! INSTANT ARTERY-CLOGGING DEATH! of the Day Special because it’s three cents cheaper, and they’ll mostly fade away. On the other hand, maybe ten years from now, a-la Sleeper, we learn that transfats, when combined with wheat germ and watermelon juice, are the key to eternal life. (Do I find it likely? No. But presumably neither would I have found it likely a few decades ago that we’d be concluding saturated fats are healthier than transfats after all.) Or maybe it turns out some people do taste a difference and want something transfatty now and again, as one of the myriad health/pleasure tradeoffs we all make all the time. Or maybe some future market fluctuation makes transfats significantly, rather than only marginally, cheaper than the alternatives. Or maybe none of those things happen, transfats really are the spawn of Satan, and banning them turns out to be harmless, but some equally unforeseen and unforeseeable fact holds for the other thing we banned on precisely equally plausible grounds.
The point is that we don’t and can’t know, but whatever turns out to be the the case, a less constrained market responding to people’s informed choices will have a better time adjusting to our changing knowledge and circumstances and preferences than some legislative body or regulatory bureau that needs to be cajoled into relaxing some hoary rule. And taking advantage of that means letting it operate without too many fetters as a matter of general principle, even when you think you know what the right result is. If you’re right—and maybe you’re most often right—it’ll usually get there on its own sooner or later. But if you’re wrong, you’ll probably never learn what you’re giving up.
Addendum: On the other hand, Ezra is dead on point here.
