Can the US government mandate what people are allowed to eat?

Question

Can the government have a food mandate, which decides what we can or cannot eat to "keep us healthy"?

Considering that 2/3 of Americans are either obese or overweight, a food mandate sounds like a great idea to keep people healthy. I can foresee people saying "how are they going to do that?", let's just assume there was a way to do it. Would the government be allowed to do it? And where does their mandate power stop?

I don't know if there's going to be different answers for state and federal governments, but if there was, both answers would be appreciated.

Answer 1

Theoretically, the Supreme Court has ruled that the federal government is limited in its power to mandate products. In practice... it depends.

Your hypothetical about whether the government can mandate healthy eating was actually a major talking point during the debate over the constitutionality of the Affordable Care Act's individual mandate (in a brilliant PR move, opponents asked specifically if the government could force you to buy broccoli... yuck!). Supporters of the bill varied in their response, with many arguing that there was something distinct about health insurance that separated it from other products. But there were a few prominent liberal law scholars who essentially answered that yes, the government can mandate that you buy certain products.

At a recent hearing of the Senate Judiciary Committee, for example, Senator Durbin asked Professor Fried the following, “[I]f the government can require me to buy health insurance, can it require me to have a membership in a gym, or eat vegetables?” Fried replied, “[T]hat would be a violation of the [Due Process Clauses] to force you to eat something. But to force you to pay for something, I don’t see why not. It may not be a good idea, but I don’t see why it’s unconstitutional.” Dean Chemerinsky likewise told Reason TV that while “what people choose to eat well might be regarded as a personal liberty” nonetheless “Congress could use its commerce power to require people to buy cars.”

But it's worth noting even these scholars argued that Congress didn't have the power to force you to actually use the products. So to partly answer your question, there is wide bipartisan consensus that Congress cannot make you eat vegetables.

Ultimately, the individual mandate was upheld by the court. But what's interesting was the the majority of justices actually agreed that it was a breach of the Commerce Clause for Congress to mandate that the population buy health insurance. From the Chief Justice's opinion:

The Affordable Care Act is constitutional in part and unconstitutional in part. The individual mandate cannot be upheld as an exercise of Congress's power under the Commerce Clause. That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it.

But the individual mandate was upheld because Chief Justice John Roberts held that it was an appropriate use of the taxing power.

In this case, however, it is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without health insurance. Such legislation is within Congress's power to tax.

So Congress does not have the ability to force you to buy a product. They do have the power to tax you for not owning that product. Some would call that a distinction in want of a difference (including quite a few angry Republican lawmakers) but that is that state of the law.

It's worth noting though that because of the politically charged nature of the case and the change of the composition of the court since then, it's not entirely clear that if a similar mandate came before the court today that it would be upheld on similar grounds (in fact, it was reported Roberts was poised to strike down the mandate, and switched sides at some point fearing the backlash to the court). It's probably unlikely that a broccoli mandate would survive judicial challenge today, and that the Court would set some limiting principle. But it's theoretically an open question.

Answer 2

As I noted in a comment above, saying "let's just assume there was a way to do it" can't really be answered because how it's done matters to the question. The U.S. government has restricted food before with the consent of the people, although unsuccessfully (see Prohibition and the 18th Amendment). New York City tried limiting how much soda can be served at restaurants but was struck down in court (see Sugary drinks limit). It should be noted the reason it was struck down was because the rule was being issued through a government agency that was seen as acting outside of the bounds of its authority, it was not attempted through legislation from the city council or through the mayor's executive authority. The government does place limits on what can be sold as food, or who it can be sold to, however.

Everywhere in the U.S., alcohol cannot be sold to persons under 21 years of age. Marijuana-containing food is illegal in many places, and the places that do allow it also have age restrictions. Milk has many requirements for how it is processed and what must be done to it in order to sell it for general use (see milk in the U.S.).

Answer 3

It is 100% established in law that the federal government has the power to ban the production and sale of unhealthy foods, such as bread made from flour laced with arsenic or chicken contaminated with salmonella. That’s a big part of what the FDA does. But it seems unlikely that it has the power to mandate which specific healthy foods you should buy and consume.

Answer 4

The simple answer: in context of your question, nothing

First of all, the U.S. government never mandated masks. This is really important. It recommended masks, but there was never a federal mandate. Why? Because of the 10th Amendment.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. (Source)

There is nothing in the Constitution that specifically allows the federal government power over health care issues, nor anything that specifically prohibits the States from power over health care issues. The Federal government literally does not have the authority to mandate masks or to mandate what food anyone eats.¹

I am by no stretch of the imagination an attorney, but I wouldn't be surprised that one of the reasons the Affordable Care Act (ACA or Obamacare) can exist is because it doesn't address health care — it addresses insurance premiums. This is really important. The U.S. Constitution, Article I, Section 8, states:

To regulate Commerce with foreign Nations, and among the several States... (Source)

In other words, the Federal government cannot force the individual to live a healthy life, but the Federal government can use the Commerce clause to create an economic path to healthy living. It was a neat trick of the law. But it's (generally speaking and without specific argument) Constitutional.

Therefore, the federal government cannot force any individual to do anything unless that specific authority is granted to the federal government in the Constitution. Mandating masks and food are not, so the government cannot mandate either.

But then there's that pesky Commerce clause...

Theoretically the feds could use the Commerce clause in a way similar to the ACA to forbid anyone from transporting unhealthy foods across state lines — such as candy. They could use it to forbid the transport of raw materials that would make unhealthy foods across state lines — so long as it could be proven the raw material is good for nothing other than unhealthy food (good luck with that... too much sugar is unhealthy, but what's "too much sugar?").

Of course, all this could be circumvented with an Amendment...

Finally, as was pointed out in another question — the government has tried simply amending the Constitution to force people to live healthier lives. The 18th Amendment, also known as "prohibition." The idea was was politically so strongly supported that it was made a Constitutional Amendment, which means it didn't need to abide by either the Commerce clause or the Tenth Amendment — it was a law to itself, equal with all the others. It failed so miserably that another amendment (the 21st) was created to nullify it.

The fundamental problem with any kind of mandate like these is that what you perceive to be a reasonable morality is almost certainly going to be rejected as such by someone else. That, of course, is what it means to be free.²

---

_{¹ Thank goodness. The idea that anyone should have the right to tell me that I can't get fat is so utterly repellent to the idea of a free society that, as silly as it may sound, I'd be willing to fight to stop anyone from asserting that authority. Now... making the public pay increased insurance premiums or emergency hospital bills because I'm not willing to live a healthy life and can't afford to pay for it... that's an entirely different issue.}

_{² And here is where we follow up from that first footnote. There's the old adage, "your right to swing your fist ends at the tip of my nose." From the perspective of mandates, your right to live your life any way you want ends at my pocket book. That, of course, is the Conservative interpretation. The Liberal interpretation is that your right to live your life any way you want should be protected even if someone's pocket book must be dipped into. Oh, what an argument those last few sentences could start! But I hope you can see my point. What right does the federal government have to mandate what I eat? Well... if my choices cause other people some kind of distress (hitting their nose, so to say), then the government may have the right to restrict my choices. But what is distress? Should an obese person have the same rights to emergency medical care that a slender person has? If each is paying for it themselves, certainly. But what if neither can afford it? What if it's a life saving necessity? Who gets to draw the line? That, my friend, is the nature of diplomacy, politics, and society.}

Answer 5

Not unless the products are literally poisonous. However, with better regulations, they can hurt the sale of certain products by better informing the general population.

Full text: A review of nutrition labeling and food choice in the United States (2019)

2.2. FOP label

In late 2009, Dr. Margaret A. Hamburg, the then commissioner of FDA, wrote an open letter to the food industry highlighting the importance of providing nutrition information that consumers could rely on.36 She also expressed concerns about unauthorized health and nutrient content claims in addition to the unauthorized use of terms such as “healthy.”36 The letter also discussed making nutrition labeling a priority for the FDA, which was also supported by the then First Lady Michelle Obama Let's Move! initiative. Both the FDA and the first lady asked the industry to develop an FOP labeling system that would assist consumers in making more informed decisions.36

In response, the Grocery Manufacturers Association and the Food Marketing Institute developed the voluntary front‐of‐pack nutrition labeling system Facts Up Front (formerly called Nutrition Keys).37 Facts Up Front summarizes important nutrition information in an easy‐to‐use label on the front of food and beverages packages.

Figure 3 Facts Up Front front‐of‐pack nutrition labeling system

Figure 4 Examples of front‐of‐package labels worldwide

That HIGH sugar traffic light symbol would probably hurt the sale of many empty calorie foods, ice creams, etc. It would be a happy day :)

Answer 6

That said, in general matters of public health emergency, the (usually state) government has the ability to exercise sweeping powers. This doesn't quite answer your question, in Jacobson V. Masachusetts, 197 U.S. 11 (1905), SCOTUS upheld the state's authority to enforce compulsory vaccination. Under condition of great danger to the public at large, the Fourteenth Amendment guarantee of liberty is not violated by such an order.

Answer 7

Directly, not really (state governments can sometimes have these powers to an extent, not so much the federal government these days -- I imagine that the repeal of Prohibition set a precedent for certain types of future federal attempts). That's all covered well in the other answers here.

Indirectly, though, there are ways to achieve similar end effects -- in that, while a mandate would not be established, more people would be putting more (or less) of certain foods in their bodies (which would be similar to the realistic result of a mandate).

For example, the FDA can't tell you what to eat directly, but they can dictate what foods are available to you at stores, as well as what information is made available to the consumer of said foods. This affects the convenience of your options, and probably affects the decisions that you make.

The other indirect route is if the FDA or HHS or some other organization (e.g. the USDA, AHA, etc.) makes certain recommendations or claims, it can affect your choices through a number of routes. These can range from directly affecting your decisions, to more subtle effects like affecting advertising and industry or social norms that can affect your behavior without you necessarily making a conscious change.

The success of the Got Milk? campaign is an example of the indirect effect an organization can have on general dietary practices. While it isn't the best example (the "drink your milk" ethos goes back much further than that campaign), and it wasn't initiated by a government body, it was the first thing that popped into my head; and a government-initiated social campaign could conceivably have a similar effect. In that case, milk wasn't mandated, but lots of people were drinking it, which, at the end of the day (as far as people putting milk inside themselves goes), is similar to the intent of a mandate.

If / when the US government wants to get as close as it possibly can to dictating dietary choices, I hypothesize that one of those indirect choices would be the preferred strategy, as (anecdotally) those seem to be the most effective strategies given US culture (US citizens tend to not respond well to mandates, but generally respond well when the choice is [or appears to be] their own).

A good example of both aspects of that last paragraph is Prohibition -- the resistance was heavy when it was in effect (resistance to mandate) and the end result was still only partial compliance (e.g. speakeasies were common) but the dry counties that do remain are relatively calm (acceptance when it's voluntary).

Answer 8

OK, so it's been established that within the law as it stands US government agencies can't legally require you to consume a specific diet.

That doesn't of course mean they can't try (there have been many attempts at legislation or executive orders by governments to do things that on scrutiny turned out to have been in violation of existing laws up to and including constitutional law.

But they have other options, and some countries (especially in Europe and Australia) are considering those, to control peoples' diets.

These include but aren't limited to governments putting in place punitive taxes for entire categories of foods (for example the Netherlands did this with drinks containing more than a set amount of sugar, including fruit juices), laws and regulations making life hard on farmers (again the Netherlands, they're planning to put in place regulations that would force farmers to half their herds, meaning many would have to stop farming because it would no longer be profitable, Australia I believe is doing similar things).
Other measures (complementary) may be to introduce subsidies on "healthy food choices", reducing their price in comparison to "unhealthy food choices".
All such measures end up pushing consumers towards a certain desired behaviour by making anything else prohibitively expensive.
In other areas we see this already with the subsidies on electric cars in combination with ever increasing taxes on gasoline for example.

None of this is in any way outside the legal framework within which the US government can operate, though it may in part be up to the states (but states are easily swayed to do such things by making federal funding dependent on their actions).