Lis On Law:Drawing the Line at the French Fry

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As Americans, we know the value of a good slice of pizza or apple pie. And for those of us in New York, we are privy to some of the best slices in the world. Yes, I know it's not the healthiest choice on the menu or even on the sidewalks, where vendors line the street with scores of culinary enticements, but at least it's my choice whether to indulge.

In New York City, the Health Department recently proposed a plan to ban all city restaurants from selling food containing trans fats. Experts say New York City will have taken the boldest step yet if the Board of Health approves the plan to eliminate any dish containing more than just a trace amount of artificial trans fatty acids. Other cities, like Chicago, and small towns, like Tiburon, California, have also considered giving up the oils. But I think this goes too far in micromanaging our culinary rights.

What, exactly, is so bad about trans fat that warrants Big Brother's involvement? Doctors don't like trans fat because it wreaks havoc with cholesterol, and studies show that it may contribute to many heart disease deaths. Others say trans fat is no worse for you than old-fashioned saturated fat in butter and other cooking oils. Trans fats are mostly used to increase shelf life and stabilize the flavor of foods. They are added to French fries, shortenings, potato chips, and other foods made with or fried in partially hydrogenated oils, which are turned into solid fats.

The way I see it, your rights end at my nose. In other words, you can do what you want as long as it doesn't hurt me. For example, when New York City first imposed the smoking ban on restaurants and bars, the city went through a period of adjusting to this infringement on our right to light up. But second hand smoke kills innocent bystanders, and the smoking ban protects those of us who don't want to ingest smoke as a result of someone else's bad habit. So, I support a ban on public smoking because passive smoke harms nonsmokers, but I have to draw the line at the French fry. People should have the right to choose what kind of food they eat at a restaurant. After all, the government doesn't have the right to prohibit me from eating a doughnut instead of whole-wheat toast for breakfast.

Dr. Thomas Frieden, New York City's health commissioner, says the food would taste the same if restaurants eliminated trans fatty acids. He analogizes the fight on fat to Manhattan's ban on lead paint. Dr. Frieden says that artificial trans fat in food is invisible and dangerous, just like lead paint. But I fail to see how lead paint and trans fat play on the same field. Can we really liken a child eating a lead paint chip to a child licking the frosting off a cupcake?

Even if restaurants did comply, the simplest way to adhere to the new restrictions would be to go back to using saturated fats, so the food would not be any healthier. What's more, this type of legislation opens up a host of lawsuits.

Legal experts say fast food companies that use trans fats to prepare French fries, muffins, and doughnuts could sue, claiming local regulations violate constitutional restrictions on federal interstate commerce. Some chains prepare their foods in other states — using the trans fat in the process — before freezing them and shipping them to New York.

Lawsuits aside, this is a matter of principle. Let's be Crisco clear — the government can certainly offer suggestions to keep America heart happy, but suggestions are not law. “Politicians have enough to legislate, they should leave restaurants alone. People know what they're doing — If they want to eat a hamburger, they should be able to eat a hamburger without politics in the way,” said George Lemperis, owner of The Palace Grill in Chicago.

Richard Lipsky, a spokesperson for Neighborhood Retail Alliance, warns of slippery slope greased oil. “The concern is that there are a number of things that people decide to do that may not be best for their health. When we start to restrict people's choice, we start dictating in a free society. The choice should be in the hands of the consumers themselves.”

If the Health Department mandates a ban on trans fats, in their crusade to stop the battle of the bulge, what's next? Elimination of pizza, cake and French fries?! The government can make restaurants tell us what's in our food, but forcing us to not eat it really takes the cake.

The previous bans on smoke and lead paint protect innocent victims from the hazards created by others, but the chefs at the Health Department should let us decide what to eat. Americans have been making that choice for years. As for me, I'll make the choice to have my pie and eat it too — make that with ice cream on top.


Action on Smoking and Health

Ban on trans fats may not have a place at city's tables


Lis Wiehl joined FOX News Channel as a legal analyst in October 2001. She is currently a professor of law at the New York Law School. Wiehl received her undergraduate degree from Barnard College in 1983 and received her Master of Arts in Literature from the University of Queensland in 1985. In addition, she earned her Juris Doctor from Harvard Law School in 1987. To read the rest of Lis's bio, click here.