In this case, I mean “bad” as in “poorly written”.
The big news last week was the McDonald’s Happy Meal Toy Ban that went into effect in San Francisco. The law forbids restaurants from providing toys to children in connection with a purchase unless certain minimum nutrition standards are met. McDonald’s seeks to avoid liability under the law by selling its Happy Meal toys for a token amount and donating the proceeds to its local Ronald McDonald House.
Whilst guest-blogging at Reason, my good friend Baylen had some fun with this whole drama by likening the Ordinance and McDonalds’ response to the chase scene in “Bullit”. I suggested that if he wanted to pile on, the Bullit scene could have been more applicable if it had been scored with “Yakety Sax“. Because Benny Hill music makes everything funnier, you see.
Michele Simon has a lengthy and thoughtful public policy argument in favor of the toy ban over at Grist. She is tough to argue with in principle – it is no surprise that we are in fact drowning in salt and excess calories. In practice, however, coercively compelling individual food choices through the law is not an easy way to correct the problems she cites.
McDonald’s is not evading the law so much as they are being cute at the expense of lousy drafting. Read the whole Ordinance here, but pay close attention to Section 471.4: “A restaurant may not provide and incentive item linked to the purchase of a single food item…(italics mine)”. “Provide” is an awfully ambiguous word on which to pivot the ambitions of the Healthy Foods Incentives Ordinance. “Provide” may include McDonald’s tactic of selling a toy in an independent transaction for a token amount with proceeds going to charity, but we’d be guessing because the drafting of the law is not that tight. 471.1 (18) suggests that the ordinance is directed at those incentives that are “given out” by restaurants to compel a certain menu choice, which leads us to believe that the ordinance is meant to cover only the free stuff. In that case, McDonald’s tactical response, selling the toys for a donation, is OK. Ambiguities in the law are generally decided in favor of the criminal defendant.
These are the kinds of issues food activists will run into when they try to repair our wretched food system by altering consumer behavior. First, telling consumers and businesses what to eat and sell exposes activist to the schoolyard taunt of nanny-statism. That may be a one-dimensional and juvenile rebuttal, but it has traction. Nobody likes to be told what to do. Secondly, and more practically, the Healthy Food Incentives Ordinance shows the difficulty of drafting laws that regulate how consumers respond to the choices presented to them. They are just tough to draft.
Most of these unhealthy menu choices are actually a product of federal subsidy policy. Food corporations like McDonald’s are merely trying to efficiently and amorally create products using the mountains of cheap commodities produced as a result of national agricultural policy. San Francisco is powerless to stop federal agricultural policy, so they try and regulate only what they can, namely the behavior of its businesses and its citizenry. That is a lousy choice, but it is the only thing they can do to correct the negative, local effects of national food policy.
The next step is to put the law to the test – some city inspector will issue a ticket to a McDonald’s within city limits and then it is game-on!