Ari Armstrong, Denver, Exclusives, Local, Uncategorized

Armstrong: Denver council misses opportunities to ‘nudge’ harder

Thank God for the Denver City Council. How would we possibly make our own decisions or live our own lives without politicians telling us what to do? On March 26 the Council unanimously passed Bill 24-0285 “to require food service establishments to offer healthy drink choices for children.” I would call that a good start!

To give you a sense of how relieved parents are that they will no longer have to decide for themselves whether to let their child order a soda for dinner, consider the enthusiastic reaction of Kelly Maher: “So glad there are people out there to protect me from my children asking for a Sprite as a treat when we’re out to dinner. Phew.”

Unfortunately, the ordinance merely dictates to restaurant owners how they present their menus. It does not absolutely forbid them to sell sugary drinks to children. What a missed opportunity!

Politicians know best

Here is the actual language, now Section 23-61 of the Denver city ordinances:

“(a) On and after July 1, 2025, a retail food establishment that sells a children’s meal shall make the default beverage sold with the children’s meal one of the following items: (1) Water, still or sparkling, with no added sugar; or (2) Dairy milk or non-dairy milk substitute with no added sugar.

“(b) Menus shall only list the beverages described in subsection (a) of this section in conjunction with children’s meals. Employees shall not offer any beverage other than the default beverage.

“Nothing in this section prohibits a retail food establishment’s ability to sell, or the customer’s ability to purchase, any other beverage that is available if requested by the purchaser of the children’s meal.”

What the heck, Denver? The Council set up these controls so beautifully and then in the end chickened out by letting parents order a soda after all. Obviously parents are too stupid and irresponsible to navigate restaurant menus on their own, so why should we trust them to decide what drink their child orders?

At least the ordinance makes it easier for parents to lie to their children, so that’s a good thing. Parents unable to explain to their children the health consequences of dietary choices or to simply tell their child “no” now can lie, “Look, Johnny, the menu says you can only have water, sparkling water, milk, or non-dairy milk substitute with no added sugar; my hands are tied! Politicians know best!” Indeed, in comments to the Denver Post, Councilor Serena Gonzales-Guitterez explicitly advocates such parental lying. Hey, sometimes you just have to lie to your children to get them to do the right thing.

I am a little disappointed that the Council did not allow a spinach smoothie to be offered as a default beverage. I mean, sure, a parent still could order their child a spinach smoothie, but would the thought ever enter their heads without politicians planting it? Get real; these are parents we’re talking about. What do they know about raising children?

Realistically, the Council also should have allowed restaurants to list quality, all-natural fruit juices. For example, I buy a cold-pressed 100% orange juice that my family sometimes has for breakfast. Even though this juice has 490 milligrams of potassium and 120 milligrams of vitamin C per serving, it also has 26 grams of natural sugar (usually I cut the serving in half).

Arguably, then, a small serving of this juice is healthy for growing children, but I see the council’s point in banning it from children’s menus. The slope is slippery, after all. First kids want a small portion of all-natural fruit juice, then they want a huge glass of it, and before you know it they’re asking for “fruit drink” with added corn syrup. How could parents possibly withstand the onslaught? It’s far better to eliminate juice altogether from the menu, and anyway that’s better for the dairy lobby.

I have a confession to make about an instance that reveals the weak-mindedness of parents such as myself. Recently I luckily won the lottery for Casa Bonita, so I was able to take my family and some friends. (I also happened to run into Mario Nicolais there, so I was able to shake his hand and thank him for courageously helping to advance the Trump ballot case.)

Anyway, my son’s friends all wanted to order Fanta, so of course my son also wanted a Fanta. So, even though I never buy soda for home, and even though I do make him spinach-and-fruit smoothies for breakfast sometimes, this one time I relented and let him order a Fanta. If only someone from the Denver City Council had been sitting nearby to set me straight.

Unfortunately, Casa Bonita, even though billed as a Denver attraction, technically is in Lakewood, so the Denver ordinance won’t apply. I live in trepidation that I might again get to visit Casa Bonita, where again I will have to parent all by myself, without the benevolent guidance of Denver city councilors.

Obviously, what we really need here is a state law about this, unless of course we can get a federal law instead. Gonzales-Guitterez already suggested state legislation to the Gazette. Denver is leading the way!

Leaning into the nudge

You can stand in awe of the Council’s wisdom yourself by opening the web document for the relevant session and turning to the 3:14 minute mark of the video.

I was initially fearful that Councilor Chris Hinds was on the wrong track. He started off saying, “We have a bill that is on consent tonight.” For a moment I had the blinding fear that the bill might actually recognize consent, as in people making voluntary choices. For example, if someone asked a restaurant owner to change the menu, the restaurant owner could consent to the request, or not, by choice. Parents could consent to go into a particular restaurant and consent to buy specific items from the restaurant, all without political interference. Terrifying!

Thankfully, that is not at all what Hinds was saying. When he said the bill was “on consent,” that’s just a technical term for the council fast-tracking a bill. The ordinance itself, I was relieved to learn, curtails consent of restaurant owners and parents.

Some people might imagine that the Council’s actions point to a paradox of consent. Isn’t it strange that the councilors get to consent to limit the consent of Denver residents? But that’s no contradiction. Obviously, the councilors are sufficiently intelligent and righteous to make such decisions on behalf of others, whereas restaurant owners and parents are too stupid and weak-willed to make their own decisions. So the Council must consent to force the rest of us to act the correct way. Our consent must be restrained so that the consent of the Council may be honored.

Hinds said, “We have a bill . . . that is talking about healthy drinks for Denver kids. And I am excited that it is on consent, thank you for my colleagues for keeping it on consent. I do want to say a little bit about it. I’m really excited that it’s here on final reading tonight, unless someone calls it off in the next few minutes, which is our prerogative, but please don’t. [At this point the council broke out in laughter.]

“We will become the largest city in Colorado to adopt this policy [Lafayette and Longmont also have it]. Don’t fret; there are many other cities throughout the U.S., and four states [California, Delaware, Hawaii, and Illinois], that already have the policy, but I’m very happy to see us move forward with this ordinance.

“This is a bit about nudge legislation. As in, we’re not taking away rights from people, regardless of what that media outlet and their friends think [maybe a reference to Fox News?]. The idea here is for us to nudge people into doing the right thing. And in this case, the idea is, instead of leading with soda, or orange juice, or sugar drinks, let’s put, on a kid’s meal . . . a healthy option, like water or unflavored milk.

“The idea here is to nudge kids into doing the right thing, nudge parents into helping kids do the right thing. But, at the end of the day, if a parent wants to give their kid soda or orange juice or flavored milk, they’re welcome to do that as well. Whatever the restaurant offers, they’re welcome to order.

“This is something I’ve worked on in the past. As you may recall, council member [Kendra] Black in the previous term and I sponsored the bag fee and also the ‘skip this stuff’ fee. So the idea behind both of those was, if you want a plastic bag at a grocery store, fine, just pay for it. And that reduced bag consumption, single-use bag consumption, by 80% in a lot of places. So we were nudging people into doing the right thing.

“And then the ‘skip this stuff,’ that’s, rather than having restaurants automatically offer sauce packets, or honey, or soy sauce, or plastic utensils or napkins, you just wait until someone asks for it. Of course, if you want a napkin, you’re welcome to ask for it, and you’re welcome to get it. But the idea is, let’s not have the restaurant give something to a customer that will immediately throw it away and end up in our landfills.

“The same idea here is, the recommended daily allowance for sugar for kids is six teaspoons. And one soda has ten teaspoons of sugar. And that is concerning. We have an obesity epidemic, we have a diabetes epidemic, . . . specifically in our kids. So let’s set our kids up for success. Let’s make sure that they can focus on learning, instead of being worried about health complications so early in their lives.”

Another epidemic that Hinds did not mention is that of poor mental health among children. I’m confident that we can improve children’s mental health through politicians more tightly controlling people’s lives and discouraging people from learning to make informed decisions for themselves.

Nudging at gunpoint

A classic case of a “nudge” is a private company setting up automatic payroll withdrawals to go into an investment account. A company could let employees opt-in to such investment, but setting the default as “in” and then letting employees opt-out if they want “nudges” them in the direction of investing more.

In a free market, a company is perfectly free to set up such “nudges” if they wish, and potential employees are perfectly free to seek work there, or not. There’s nothing compulsory about the arrangement.

Similarly, if restaurant owners voluntarily decided not to offer soda on children’s menus, or decided not to offer soda at all, then customers would be free to enter the establishment, or not. Again, that involves no compulsion. People voluntarily agree to enter into “nudging” arrangements all the time.

But obviously nudging by consent is inadequate. If Hinds just asked restaurant owners to please stop listing soda on children’s menus, they might say no! And we can’t have people making choices for themselves.

Instead, as the Denver City Council well-recognizes, we need nudges by force.

If the Council just passed a resolution asking restaurants to pretty please change their menus, with no enforcement mechanism, restaurants might decline. So Hinds has made sure to let restaurants know that they face the guns of government—ultimately, heavily-armed police officers—if they do not comply.

The bill itself does not list the penalties for noncompliance. For that you have to turn to the city ordinances for Section 23, specifically Sections 23-3 through 23-11. For starters, the ordinances give “the manager of public health and environment of the City and County of Denver and the manager’s authorized representative” an absolute “right of entry” into licensed restaurants.

Further, “The manager may order the licensee, agent of the licensee, or the person in charge of any food establishment to effect such cleaning, repair operations, changes in procedures or such other actions as are necessary to bring the establishment into conformity with the requirements of this chapter 23 and promulgated rules and regulations.” And, “Any person who violates any provision of this chapter, including the promulgated rules and regulations, shall also be subject to a civil penalty of not more than two thousand dollars ($2,000.00).”

What happens if a restaurant declined to pay the penalty? “If a person fails to pay a civil penalty and charges assessed, the manager may refer the matter for collection by any and all means available to the city. . . . The city may also petition the district court for the issuance of a preliminary or permanent injunction, or both, as may be appropriate, restraining any person from continued violation of this chapter, including the promulgated rules and regulations.”

In the case of the menu ordinance, the gun is well-hidden, but it is still there, as restaurant owners fully realize. The city has made restaurants an offer they cannot refuse.

The Colorado Restaurant Association was “neutral” on the bill, Alex Edwards reports for the Gazette. But it is clear that the Association feared an even more intrusive bill. Consider what Colin Larson said on behalf of the group: “While we are not yet entirely in agreement, we are grateful for the stakeholder work that’s gone into this policy so far and we look forward to continuing the conversation. Denver restaurants are eager to be a partner in helping to combat childhood obesity. We have been successfully engaged with the council members running this measure to make sure this policy didn’t unfairly penalize restaurants.”

The council used a carrot along with a stick. Joe Rubino reports for the Post, “Financial support also would be offered to offset the costs of updated marketing materials. According to the presentation, restaurants would be able to request as much as $2,000 for those purposes.”

In other words, the council will force taxpayers to subsidize restaurants because the council is forcing restaurants to change their menus.

Why stop there?

I find it disappointing that the Denver City Council has taken such a weak approach to the pressing matter of obesity. If the Council is justified in forcing restaurants to change their menu for children, then surely the Council is justified in “nudging” people in many other ways as well.

According to recent statistics, 19.7% of children and adolescents are obese. But the problem is much worse among adults—41.9% are obese. So why is the council content only with nudging parents to get children to “do the right thing”? Obviously the council needs to nudge adults to do the right thing as well.

The council should force restaurants to change menus for everyone, not just kids. Sure, adults can ask for a soda with their meal, but restaurants should not be able to offer sodas. If it’s bad for a restaurant to offer someone a napkin, as it obviously is, surely it is radically worse for a restaurant to offer an adult a soda. So why is Hinds so limited in his thinking? Doesn’t he care about all the obese adults in Denver?

Further, restaurants should not be able to offer sugary desserts on menus. I guess if they want to offer something like a small cup of unsweetened blueberries, fine. But some restaurants offer huge, sugary desserts that that can only contribute to the obesity epidemic. I guess if people want to ask for a dessert, we’ll let them. We must preserve freedom of choice, after all! But people should not have to face the temptation of walking into a restaurant and seeing a yummy picture or description of a dessert on the menu.

We should also require restaurant staff to issue a stern warning to customers who foolishly request a dessert. A waiter should have to recite something like the following: “Sugary desserts have been found by the City Council of Denver to contribute to adult obesity. Are you sure you still want to order the dessert?” I frankly think this would only improve the ambiance of restaurants, to constantly be reminded of how dearly the city council cares for people in Denver.

Not only poor diet but lack of exercise contributes to obesity. So obviously the Council should impose a fat tax on people. We should require people to get their BMIs measured annually and pay a tax for each extra pound. People can still be as fat as they want, only they’ll be nudged toward weighing less. Freedom of choice!

And we need a tax on people who fail to exercise enough. Denver councilors should set a standard of 10,000 steps per day or the equivalent. We can make special accommodations for people with physical challenges, but very few people would need to be exempted completely. If you log the exercise, you pay nothing extra. If you don’t, obviously you need a little nudging. We must compel people to do the right thing! And it is the job of politicians to do the compelling.

If unhealthy foods are a problem, obviously unhealthy information is much more of a problem. So Denver needs to implement a far-reaching system of nudges to cut down on the misinformation and wrong ideas to which people are continuously exposed. How can we be expected to do the right thing if we don’t even think the right thing?

Considering Hinds’s policy and the possibilities for expanded nudges, I found that I loved Big Nanny.

Ari Armstrong writes regularly for Complete Colorado and is the author of books about Ayn Rand, Harry Potter, and classical liberalism. He can be reached at ari at ariarmstrong dot com.


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