According to the World Health Organization, obesity is one of the greatest public health challenges of the 21st century, and unhealthy diets seem to be partially to blame for this.

Public health officials have been trying to counteract this pandemic through a range of health interventions such as information campaigns and educational programs aimed at advising consumers on healthy eating habits. They soon arrived at the perception, however, that eating is not only an individual choice, but that is also influenced by the decisional context of consumers. In its turn, such a context is strongly influenced by a food marketing that drives consumers to opt for low nutrient and calorific foods instead of healthier ones.

In this context, and over the years, governments and representatives of the food industry have launched several initiatives to improve nutritional labels.

Regulation (EU) No 1169/2011 (Food Information to Consumers Regulation) requires most pre-packed foods to bear a nutrition declaration, but it is usually provided for in the back of food packages, going easily unnoticed by traditionally distracted and hurried shoppers. Front-of-Package nutrition labelling systems thus started to be deemed as more consumer-friendly, at-a-glance, summary, and simplified information.

Within the EU “Farm to Fork” Strategy, launched in May 2020 as part of the European Green Deal, the European Commission announced that it intends to submit, by the end of 2022, a proposal for harmonised mandatory front-of-package nutrition labelling.

Nearly 40 stakeholders from across the spectrum called the European Commission to opt for Nutri-Score, an approach for applying nutrient profiling criteria for front-of-package labelling schemes that uses an algorithm to derive a consolidated score representing a product’s overall nutritional profile through a scale of 5 colours from green to dark orange and 5 letters from A to E to represent, respectively, best to worst nutritional quality.

The Nutri-Score has been officially endorsed in France, Germany, Belgium, the Netherlands, Luxembourg, and Spain and in other European countries they have been voluntarily used by large, private retail corporate groups.

Given its underlying aim of helping curbing obesity and nutritious calory intake, Nutri-Score may be classified as a health nudge and one offering great potential for the health policy toolkit: as compared to traditional regulation, nudges are low-cost interventions which generate less resistance from consumers.

“Nudge” was a term coined by the US scholars Richard Thaler and Cass Sunstein, who defined it as “any aspect of the choice architecture that alters people’s behaviour in a predictable way without forbidding any options or significantly change their economic incentives” (Thaler and Sunstein, Nudge: Improving Decisions about Health, Wealth, and Happiness, 2008).     

Nudges may be seen as a transition from “fast” to “slow” thinking, in the terminology which was popularised by Daniel Kahneman (Thinking Fast and Slow, 2012). They are policy design choices or actions that apply insights from behavioural science and aim to improve the typical biased and often rule-of-thumb-based consumer decisions.

At the heart of nudging is a philosophy entitled “libertarian paternalism”, an expression coined in a paper published by Sunstein and Thaler in 2003 at the American Economic Review.

On the one hand, the nudge is paternalistic, as it stimulates choices that are seen as welfare enhancing for the individual; on the other hand, the nudge is libertarian, because according to its supporters’ claim, it does not constrain the freedom of the agent, who is the one deciding on the course of action he or she ultimately will take.

Nudges are, however, subject to criticism.

It is argued that the way individuals answer to nudges depends on their cultural, economic, social, institutional context, and that the values we aim to protect are as important as health or the environment, harder tools might need to be used.

Most critics to the concept of nudge point to their lack of transparency and related potential for manipulation. By taking advantage of consumers’ behaviour vulnerabilities to steer their choices in an intentional and hidden way, nudges would be against the individuals’ autonomy to decide for their own about their course of action.

It was traditionally argued that a transparent approach would affect the efficacy of a nudge as, by informing consumers about the non-conscious processes which are placed at the service of behaviour change, this would lead them to resist to compliance.

Recent studies (such as one published in 2018 by Bruns et al. at the Journal of Economic Psychology) show, however, that when made transparent nudges are still found to be acceptable by the agents whose behaviour is being changed.

As for the impact of nudges – and more specifically paternalistic ones - in individuals’ autonomy, while some authors consider that nudges have several degrees and that only nudges of a certain degree would affect the autonomy of the consumer (see, for example, Robert Baldwin’s paper in The Modern Law Review, 77(6) 2014), some others argue autonomy is a quintessential domain of liberal thinking according to which individuals are, in principle and within certain limits, always entitled to demand that they be allowed to make their own choices for themselves (John Stuart Mill, On Liberty, 1859). 

The impact of nudges in consumer’s autonomy is thus a field which requires further legal research. As shown particularly by the recent proliferation of uncoordinated nationally developed COVID tracing apps (see paper by Josephine van Zeben and Bart Kamphorst, European Journal of Risk Regulation, 11(4) 2020), the EU legislature must step up to the challenge of coordinating public health measures and ensuring these are used in an autonomy preserving way.

March 2021