How Bloomberg's soda ban is a classic example of 'choice architecture'

Before you park yourself with a Big Gulp and a sign to fight against Nanny Bloomberg, see why no one's liberty is at stake
New York Bloomberg soda protest
A hard-hitting sign against the proposed 'soda ban' that New York City mayor Michael Bloomberg has suggested. Photograph: Andrew Burton/Reuters

A general piece of advice for people organising public protests: don't use the word "million" if you're not fairly sure of getting at least a few thousand people to show up. Sadly, this tip comes too late for the mysterious body calling itself NY Liberty HQ, which – according to The Atlantic Wire – mustered a mere 50 people to yesterday's Million Big Gulp March in Manhattan yesterday, to protest Mayor Michael Bloomberg's proposed ban on the sale of sugary drinks in containers larger than 16 fluid ounces. (Oh, and the crassness of echoing the title of the Million Man March in your noble struggle for the rights of America's beverage conglomerates? Let's not go there.)

"If you want to kill yourself, I guess you have a right to do it," Bloomberg observed laconically to reporters, reconfirming his place as America's most weirdly likeable obnoxious politician. "We're trying to do something about that … in New York City alone, we're going to spend $4bn of your money to treat obesity-related diseases. If somebody wants to have a march, I suppose it's funny, but it's so tragic that the humour escapes me."

The ineptitude of the march mirrors the drinks industry's more broadly inept efforts, thus far, to create the impression of a grassroots uprising against the "soda ban". If the pictures of anti-ban activists at New Yorkers for Beverage Choices aren't from stock photo libraries, I'll drink four Dr Peppers in a row. The site also features a slick video in which an actor with a Noo Yawk accent protests that "this is New York City! No one tells us what neighbourhood to live in, what team to root for, or what deli to eat at. And don't even try to tell the city that never sleeps that it's bedtime." That line's the giveaway. I've never heard a real resident of New York – or "the Big Apple" as I like to call it in order to sound like an insider – call it "the city that never sleeps".

On Twitter, meanwhile, the pro-Big Gulp campaign seems to consist mainly of tweets from people with handles like SonyaSCocaCola. (Also: "Hey #KatieHolmes enjoy your newfound freedom with a beverage of your choice!")

Ridiculous as all this is, it's worth briefly recapping why it makes no sense to see Bloomberg's policy as an incursion on anyone's liberty. The proposal is a classic example of a "nudge", as defined by Cass Sunstein and Richard Thaler in their famous book of that name. It doesn't stop you guzzling as much Coke as you like, but it modifies your "choice architecture" – the context in which you decide how much Coke to guzzle – so as to guide you towards the healthier option. Likewise, as Sunstein and Thaler explain, you can transform the dietary choices of school pupils by making salads slightly easier to reach for than fries; nobody's deprived of their right to fries. You can transform savings habits with bank accounts that move a portion of wages into a separate account unless the user opts out.

To see this intrinsically as a restriction on liberty is to misunderstand "choice architecture". We take all our decisions in contexts that exert subliminal influences on our choices; having no choice architecture at all isn't an option. The money that Coke spends on advertising and sponsorship surely shape that architecture far more powerfully than anything Bloomberg could ever do. And it's no response to say that it's far more sinister when it's governments doing the shaping. Maybe that's true – but governments shape choice architecture with their every policy.

If you think there are plenty of things that governments ought to stay out of, like I do, you have to make the case on the merits – not by appealing to some imagined default state of uninfluenced choice. And in the case of massive bottles of sugary soda, the merits just aren't very persuasive. Obesity is a major health crisis, and it's hardly controversial to believe that government has a role in addressing major health crises. (Whether nudge policies always work as claimed is a very different matter.)

Even more deeply entrenched in the anti-nudge position is the idea that we humans – if only meddlesome politicians would back off – would make purely conscious and rational, fully informed decisions in response to objective data. The problem with the nudgers, Brendan O'Neill argued in a 2010 broadside against the UK government's "behavioural insight team", is their belief that "much of our behaviour takes place 'outside conscious awareness'". Wherever could they have got such a crazy idea? Well, decade upon decade of psychological research, for a start. Our decisions just are influenced by countless factors of which we're not consciously aware. We ought to be debating how choice architecture's shaped, and who gets to shape it. Instead, the Million Big Gulpers just insist that it shouldn't get shaped at all. This is as wrong-headed as the very existence of Vanilla Coke.

UPDATE: On Twitter, @cjsnowdon draws to my attention the intriguing fact that Richard Thaler, back in May, decisively distanced himself from the idea that the soda ban could be characterised as a nudge. (This will please some commenters!) I should therefore clarify that he shouldn't be blamed or credited for my applying the concept he co-created to Bloomberg's policy, and maybe I need a new word. But I don't agree with Thaler that this policy can't be categorised as a nudge simply because it's a "ban". The ban is not on drinking certain quantities of soda; it's on (some) stores selling soda in certain sizes. It would become a bit harder, but absolutely by no means impossible, or in any way illegal, to choose to drink very large amounts of Coke in New York City – and a bit easier to choose to stick to smaller sizes. I'd be sincerely interested to understand why Thaler thinks that doesn't count as a nudge.