Drugs, Guns, Cigarettes and Cheeseburgers
Last month, the House passed the so-called “cheeseburger bill,” which exempts fast food chains and food manufacturers from health related lawsuits. The bill was no doubt inspired by recent cases brought against McDonald’s claiming that the fast food chain is responsible for people being fat. While it’s difficult to empathize with people who can’t control their eating and then push the blame for their obesity onto someone else, I don’t think eliminating all liability is the correct solution.
It’s easy to oversimplify the world and assume that people always know what they are doing and therefore ought to always be held fully responsible for their actions. What I mean is that it’s easy to assume that if someone does something voluntarily, that he knows exactly what he’s getting himself into and that he and he alone is 100% responsible for the consequences. Libertarians are especially prone to this error, I think, because it makes the analysis so much easier.
In reality, of course, nobody really believes this. Children and the mentally insane provide examples that we all should be able to agree on. If you hand a machine gun to a lunatic, who is responsible for the massacre that follows? If you give your child the option of eating ice cream every day for dinner, who is responsible for him becoming overweight and ill? The answer in both cases is that it depends. It depends on how insane the lunatic is, and how adult and responsible the child is. The responsibility is shared.
In reality, the line between sane and insane, and child and adult is not well defined. We’re all a little immature and a little crazy. If you just got fired from your job and came home to see your wife sleeping with another man, you might be really crazy. If someone handed you a gun right then, isn’t he partially responsible for any resulting deaths? My point is that it’s all just shades of gray. Responsibility in these types of cases is always shared to some extent or another.
Another interesting example of shared responsibility is addictive drugs or cigarettes. If you are a drug dealer and encourage someone to experiment with heroin, just once, but he gets addicted, you are at least partially to blame. How much you are to blame depends on how much arm twisting you provided. It also depends on how aware the user was of what he was getting himself into. Was he really making a well informed cost/benefit analysis based on the potential for long term addiction and the associated health, monetary and other costs?
As an extreme example, imagine a “dealer” selling cans of cyanide and advocating that people drink them. Who is responsible if you drink one and die? You surely are a gullible person if you do something like this, but nonetheless, the dealer shares considerable responsibility for your death. I would assert that highly addictive drugs are only shades of gray away from this. Unlike cyanide, addictive drugs aren’t certain to cause death, but there is a considerable probability that the user will become addicted, with all the associated negative effects. Also, knowledge of the consequences of drug use is not totally lacking, although it is probably far from complete. All these shadings of gray do is change how responsible the dealer is, not whether he is responsible at all.
Now, the other side of the coin is the enjoyment the drug user receives. If the enjoyment is very great, it might make the whole thing worthwhile (that is, the risk of addiction, death, whatever). Looking at the transaction from an economic/utilitarian perspective, we would say it is an efficient one if the enjoyment from taking the drug exceeds the costs, including not just the price paid but also any future costs associated with addiction.
We can try to look at something like this one transaction at a time, or we could look at the big picture, which I think is easier. Imagine a drug kingpin someplace in Columbia pumping cocaine into the U.S. and becoming wealthy as a result. Typical free market transactions result in both parties being better off. If I sell you a widget for $10, it’s because the widget is worth more than $10 to you and the $10 is worth more to me than the widget. Do you think that’s the case with addictive drugs? It’s certainly not always the case in individual transactions. But how about the drug industry as a whole, or the drug kingpin in the example? What we’d like to know is whether the net utility (pleasure minus pain) resulting from the drugs he provides exceeds the profits he takes away. If it does, then his drug transactions with the U.S. are economically efficient and ought not to be discouraged.
The thing is, the drug kingpin does not need to take into account all the harm he is causing, so his business model really has nothing to do with efficiency. What we’d like to do is to make him be liable for all the harm caused by the drugs he sells. If he can pay off these liabilities and still make a profit, we know that his drug dealing is efficient. Any realistic plan for drug legalization would have to consider these types of issues.
Incidentally, I think this line of reasoning also applies to gun manufacture. The evidence strongly suggests that guns do far more good than bad in the hands of the general public. At present, gun manufacturers should be shielded from liability since the government has set up an extensive arrangement of hoops that must be jumped through by dealers and buyers before a gun can be sold. Absent all these hoops though, it would not necessarily make sense to shield dealers and manufacturers from all liability.
Finally, back to junk food. With all the above as a lead in, we could ask whether the existence of Oreo Cookies and the associated massive marketing campaign is a net good. Does the pleasure (and nutritional value?) of eating Oreos exceed the expense plus the cost in poor health and obesity? I really have no idea. At the individual level, how about the lady, too obese to walk, who rolls up to the McDonald’s counter in her Rascal Scooter and orders a Big Mac and Supersize fries? We can’t say for sure, but I’d imagine the psychological factors at work are not entirely different from those at work in the head of a drug addict. She pays money and suffers ill health. The nutritional value is non-existent because she’s obese anyway. All she gets is the raw pleasure of the consumption. It’s hard to imagine that it’s an efficient deal in the end.
Having said all this, I don’t really have a good suggestion for how to proceed. In theory, we’d like McDonald’s to be liable for damage it causes in its inefficient dealings. I personally like to eat at McDonald’s and I’m sure they would make plenty of money even after making a few payouts. Maybe they’d have a sliding price scale based on body mass index? Bars don’t sell more booze to people who are loaded; maybe McDonald’s would refuse to sell Big Macs to the obese? Who knows.
The problem is that I can’t really think of a good way to quantify the liability in the case of fast food or Oreos or any other junk food. I’m open to suggestions. What we really don’t want is for the government to get in on the act of suing fast food joints on some sort of bogus “public health” basis. All I can say is that in principle I’m not in favor of eliminating liability in the case of junk food any more than I am in the case of medical malpractice. In both cases it’s a mistake to overstate or misdirect liability. It’s also a mistake to eliminate it altogether.