A Rarely Discussed Ethically Powerful Idea: the Burden of Suffering

Professor Resnik fairly acknowledges that the trans fat ban is effective, proportional, and publicly justified. Instead, he challenges the ban because it is not necessary and is not the least restrictive alternative. This represents a fundamental misapplication of the ethics framework. These two criteria cannot apply to all public health interventions, but only to those that pose significant limits on freedom, such as a deprivation of liberty or invasion of bodily integrity. That has long been the position of the Supreme Court in reviewing health and safety regulation (Gostin 2008). If public health officials had to demonstrate that every intervention must meet these criteria (think about surveillance, vaccines, occupational safety, and food regulation), it would thwart effective public policy. Furthermore, bioethicists often misapply the leastrestrictive-alternative test. The test does not require policymakers to adopt alternative policies that are less costeffective. Although labeling and education, for example, are less restrictive and partially effective, they would not save as many lives as a trans fat ban and would probably be more expensive to implement.