WASHINGTON – Because the possibility of effectively supervising government varies inversely with government’s size, so does government’s lawfulness. This iron law of Leviathan is illustrated by a dispiriting story that begins with the American Recovery and Reinvestment Act of 2009, aka the stimulus, that supposedly temporary response to an economic emergency.

Because nothing is as immortal as a temporary government program, the Communities Putting Prevention to Work (CPPW), a creature of the stimulus, was folded into the Patient Protection and Affordable Care Act of 2010, aka Obamacare. And the Centers for Disease Control and Prevention (CDC), working through CPPW, disbursed money to 25 states and the District of Columbia to fight, among other things, the scourge of soda pop.

In Cook County, Ill., according to an official report, recipients using some of a $16 million CDC grant “educated policymakers on link between SSBs [sugar sweetened beverages] and obesity, economic impact of an SSB tax, and importance of investing revenue into prevention.” According to a Philadelphia city website, a $15 million CDC grant funded efforts to “campaign” for a “two-cent per ounce excise tax” on SSBs. In California, an official report says a $2.2 million CDC grant for obesity prevention funded “training for grantees on media advocacy” against SSBs. A New York report says a $3 million grant was used to “educate leaders and decision-makers about, and promote the effective implementation of … a tax to substantially increase the price of beverages containing caloric sweetener.” The Rhode Island Department of Health used a $3 million grant for “educating key decision-makers to serve as champions of specific … pricing and procurement strategies to reduce consumption of” SSBs. In government-speak, “educating” is synonymous with “lobbying.”

Clearly some of the $230 million in CDC/CPPW anti-obesity grants was spent in violation of the law, which prohibits the use of federal funds “to influence in any manner … an official of any government, to favor, adopt, or oppose, by vote or otherwise, any legislation, law, ratification, policy, or appropriation.” But leaving legality aside, is such “nutrition activism” effective?

Not according to Michael L. Marlow, economics professor at California Polytechnic State University, and Sherzod Abdukadirov of the Mercatus Center at George Mason University. Writing in Regulation quarterly (“Can Behavioral Economics Combat Obesity?”), a publication of the libertarian Cato Institute, they powerfully question the assumptions underlying paternalistic policies such as using taxes to nudge individuals to make consumption choices that serve their real but unrecognized interests – e.g., drinking fewer SSBs.

Paternalists wield two weapons, mandating the provision of more information (e.g., calorie counts for restaurant menu items) and increasing the cost of bad decisions, meaning those the paternalists disapprove. Marlow and Abdukadirov respond:

“Most obese individuals know they are heavy, and that many of the foods they eat are high-calorie. They also face the stigma often linked to obesity. They hardly need the government to give them additional incentives to lose weight. People aware of their mistakes also have strong incentives to correct them.”

Research indicates that overweight individuals have “reasonably close” to accurate estimates of the increased health risks and decreased life expectancy associated with obesity. Hence the weakness of mandated information as a modifier of behavior. A study conducted after New York City mandated posting calorie counts in restaurant chains concluded that while 28 percent of patrons said the information influenced their choices, researchers could not detect a change in calories purchased after the law.

Other research findings include: A study of nearly 20,000 students from kindergarten through eighth grade found that among those with easy access to high-calorie snacks in schools, 35.5 percent were overweight – compared with 34.8 percent of children in schools without such snacks. Nutrition policy is replicating a familiar pattern: Increased taxes on alcohol and tobacco mostly decrease consumption by light users, not the heavy users who are the social problem, and whose demand is relatively inelastic.

The robust market in diet books, weight loss centers, exercise equipment, athletic clubs, health foods – between 1987 and 2004, 35,272 new food products were labeled “no fat” or “low fat” – refutes the theory that there is some “market failure” government must correct. But as long as there are bureaucrats who consider themselves completely rational and informed, there will be policies to substitute government supervision of individuals for individuals’ personal responsibility.

As the soft paternalism of incentives fails, there will be increasing resort to the hard paternalism of mandates and proscriptions. Hence the increasing need to supervise our supervisors, the government.

© 2012, Washington Post Writers Group