Ever since the right to privacy went down on sheepskin, there’s been a cornucopia of confusion about whether or not American law should regulate personal choices, and what those “personal choices” are. As law makers get more and more worked up over “the epidemic of obesity”, and their constituents’ new interest in food, they look to legislate people’s eating habits from both the consumer (taxes on soft drinks, calorie counts in fast food) and the producer ends. As I listen to pizza makers bemoan the loss of transfats, community activists struggle to increase access to fruits and vegetables in poor neighborhoods, and local curb-sitters mark the price of a smoke in NYC, I get to wondering where all of this interest in our personal  habits comes from, and whether the government really has the right to legislate it in the first place.

I asked my brother, the recent law school grad (though not yet lawyer) to dispel some of the mists of obscurity surrounding civil rights in general. What follows is a highly simplified version of his explanation, as filtered through my not-too-legal mind.

My brother explains that the federal government has power only over those areas explicitely or implicitely controlled by the constitution, according to which, all Americans have certain fundamental rights. These include things like private property, free speech, and equal treatment regardless of race and religion, but conspicuously don’t include things like equal access to an education or a nutritious food supply.

Whatever rights are not referenced in the constitution are under the control of the states, which delegate further laws on down through counties, municipalities and so forth. This design makes national law more locally answerable and more flexible to needs and desires of individual people and communities. It also means that unless we can prove discrimination on the basis of race or religion, states and cities can make any personal behavior illegal – unless it violates those interest groups, or one of the other fundamental rights specified in the constitution. As an example, take soft drinks: the proposed NYC soft drink tax is perfectly legal unless the cola cult can prove that it impinges on their constitutional right to bathe in 400 gallons of coke during their high holy days. That’s not to say legislating food is always a good idea. I, for one, would not look kindly on any lawmaker who banned fried chicken.

So now that we’ve talked about why these laws are (generally speaking) legitimate, we can talk about why they’re effective, too.  It took decades of scientific studies and legal battles, and millions of dollars in ads to make cigarettes a public concern, yet it’s former NY Health Comissioner and new Director for the Center for disease control and prevention Thomas Friedan, who is credited for the enormous plunge in smokers in his city. Friedan led the charge to raise taxes on cigarettes to the point where, currently, a pack of Newport Lights sets you back ten bucks. Under Friedan, the city outlawed smoking in all bars, restaurants and nightclubs. Nowadays, if you want to so much as bum a smoke, you have to smoke outside like a bum. People crammed wet and shivering against the wall of a nightclub in a New York November no longer exuded that certain something the old Kools ads promised. Smoking in the city has decreased by 350,000, according to the White house, and teen smoking has gone down by half.

Can food regulations have the same effect? Friedan thought they might. He supported a tax on soda, a ban on trans fats, and introduced highly visible nutritional information in all chain restaurants in the city. Nowadays, a reduced fat blueberry muffin at Double D is the obvious choice for the calorie-conscious breakfast cake enthusiast. Subway ads give dire calorie assessments to the usual office-worker lunch. Finally, in a much envied move (by yours truly, who ate a hell of a lot of institutional fried chicken patties in her NYC public school days) all city institutions, from soup kitchens to prisons, to schools, hospitals and parks now serve only whole grains, at least two servings of vegetables, and 100% fruit juice, among other healthier foods (“ier” being an important suffix, and “where appropriate” being an important phrase in the guidelines themselves).

Of course, taxes, regulations and standards, even information, don’t force people to change their habits. My partner, a teacher, reports that her students regularly dismiss their still pretty nasty lunchroom fair and eat chips and soda instead. What would they do if there was a soda tax, you ask? Nicholas Kristoff at the NY Times thinks they’d ditch the bubbly (but then, he also thinks that ancient man never shook a coconut).

I disagree. While Friedan desrves credit for his accomplishments in curbing smoking, they didn’t occur in a vaccuum.The smoking taxes and bans came in conjunction with a massive effort to counter cigarette ads using new, anti-cigarette ads. These highly produced tv spots targeted the same populations, using the same marketing ploys. Simultaneously, restrictions on pro-cigarette advertising, both subtle and overt, effected pop culture on every front. The restrictions included smoking in movies and on tv, and a ban on cigarette ads  in many print publications.

On top of that, the anti-smoking message is pretty simple: don’t smoke. I can tell you as an ex-adolescent female that the “don’t eat” line has been tried before, and it doesn’t work so well. In the good foods movement, we’re asking people to, as Michael Pollan famously said, “eat food, not too much, mostly plants.” Yet that admirably simplified message is also quite incomplete, particularly the “mostly plants” part – for example, by mostly plants we do not mean mostly corn, nor GMO plants, nor conventionally grown plants, nor even organic plants imported from thousands of miles away on an airplane, nor plants grown or sold by underpaid labor. It takes some explaining to convey the message in it’s entirety. To make matters worse, the simpler the message, the more open it is to attack, as the buy-local and organic backlash continues to show us.

Soda’s a little more straight forward, it’s one thing you can ‘just say no’ to.  But what would kids do with a soft drink tax right now? Maybe pay more, since hundreds of shiny advertisements tell them to, and maybe ditch the chips to makelunch more affordable. Maybe they’d go to hundreds of non-carbonated, but just as nasty corn-syrup and food coloring concoctions. Clearly, one answer is to combine legislation with marketing, thereby influencing people economically and culturally to make more sound nutritional and environmental choices. Something like that is happening in the US right now, but it’s not working out quite as smashingly as the anti-smoking push. With greenwashing, and the difficulty of prioritizing one’s daily food choices, we’re still not getting our complex message across.