02/20/2013 11:10 am ET Updated Feb 20, 2013

Scaring Smokers and Soda Scales

Do the graphic warnings the Food and Drug Administration would like to require on cigarettes -- which depict, for instance, a woman crying uncontrollably -- violate the free speech clause of the Constitution? The federal appellate courts are split. The Sixth Circuit covering Michigan, Tennessee, Ohio, and Kentucky thinks the warnings are fine; the D.C. Circuit has struck them down under the First Amendment. Given the disagreement, it seems likely the issue will wind up before the Supreme Court.

One way to think about the question is to ask whether the warnings are a kind of "notice" -- merely providing information about the dangers of smoking -- or a "nudge." Coined by Richard Thaler and Cass Sunstein in a best-selling book, a nudge happens when the government uses what it knows about psychology to drive down a behavior it does not like, or encourage one it does. Officials often like nudges and notices better than laws because rules outlawing conduct entirely (no smoking!) can be hard to pass and enforce. Think of how Prohibition fared. But if the FDA is forcing tobacco companies essentially to nudge away their own consumers, then it turns out the First Amendment may have something to say about.

Notice and nudge are two of the more popular ways of influencing citizen behavior short of making it illegal. The third is architecture or "code." Popularized in another book by Larry Lessig, code refers to changing an environment to make conduct harder, or hard to get away with. Speed bumps provide a classic example. Together, code, nudge, or notice are perhaps the ascendant regulatory alternatives of our time.

So how should we think about the FDA and others regulating in this way? We know Americans have a weight problem; New York City took the political heat and banned sugary drinks over 16 ounces in response. But could the city instead require a scale on vending machines: no soda if your body mass index is about 29? Could it mandate the display of pictures of body parts infected due to diabetes? And why don't the ingredient list and nutrition label have more of an impact?

I take up these issues in a new essay entitled "Code, Nudge, or Notice?" I end up defending interventions that use information, psychology, or architecture -- or all three -- as long as the regulator's aim is to help citizens make decisions, not hinder them from the decisions they have already made. Trying to influence citizens without recourse to laws should not be done lightly. But careful regulators can have their soda and drink it too.

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