Permit But Discourage: Regulating Excessive Consumption

Permit But Discourage: Regulating Excessive Consumption, by W.A. Bogart is the first book to focus on problem gambling and its regulation and to situate this analysis in the larger context of regulating excessive consumption. This work analyzes the effectiveness of law in controlling excessive consumption. It engages theoretical discussions concerning the effectiveness of legal intervention, especially regarding "normativity", the relationship between law and norms. It also argues that various forms of over consumption (alcohol, smoking, non-nutritious eating) can be more effectively controlled by altering norms regarding them so that such excesses can be suppressed to a greater extent. Regulatory efforts are aimed not at forbidding consumption but at suppressing excessive aspects. In the case of tobacco this means zero consumption since there is no safe level of smoking. In contrast, in terms of alcohol, this means encouraging consumption of only moderate amounts. Addictive drugs are, generally, prohibited, and their use is criminalized. But there is a significant measure of public opinion that prohibition does more harm than good; that permit but discourage would produce better results. The battle against obesity, a contested concept, focuses on encouraging eating nutritious foods and being physically active. The book then focuses on one form of consumption that is associated with major social issues: problem gambling. Regulation, to date, has been mostly on ensuring honesty regarding the various games and in promoting revenue enhancement for owners (often governments). However, in the face of the mounting evidence regarding the damage caused by those with impaired control, there are increasing calls for the regulatory frameworks to make "harm minimization" and related concepts a priority. "Harm minimization" brings permit but discourage to the fore in terms of gambling and problem gambling. Permit But Discourage examines a variety of legal interventions that could be used to address problem gambling.

Table of Contents:
TABLE OF CONTENTS INTRODUCTION PART ONE - A PREFACE TO REGULATION: THE STORY OF ALCOHOL CHAPTER ONE: Alcohol - Many Attitudes, Much Law, Mixed Results I. Introduction II. Alcohol and Public Health III. Regulating Consumption from the 19th Century to Prohibition: The Separation of Drugs and Alcohol IV. Prohibition and Unintended Consequences V. Regulating Alcohol: After Prohibition and Into the 21st Century a) Approaches to Control 1930-2000 b) Contemporary Strategies for Regulating Alcohol VI. Conclusion: "The Power of Law to Correct All Evils"? PART TWO - REGULATING EXCESSIVE CONSUMPTION: NORMATIVITY CHAPTER TWO: Legal Intervention, the Regulatory Mix, and the Impact of Law I. Introduction II. From Soft Intervention to the Heaviest Machinery of the State a) The Range of Tools b) Taxes c) Is Litigation a Tool? d) An Example of Legal Intervention and of the Regulatory Mix: The Suppression of Smoking III. The "New Governance" and the Regulatory Mix a) Is There a New Governance? b) The Changing Emphasis: Two Examples c) The New Governance and Regulation of Consumption IV. The Impact of Law a) Introduction b) Determining Impact c) Assessing the Regulatory Mix d) Assessing Before Implementing?; Ex Ante Efforts - Regulatory Impact Assessments V. Conclusions CHAPTER THREE: Excessive Consumption and Normativity I. Introduction II. What Are Norms? III. Who are the Normativists? a) Law and Economics Encounters Law and Socioeconomics b) Some Examples of Normativists' Work IV. A Theory of Normativity? a) Three Accounts: Signalling, Reciprocity, and Esteem b) Things are Clearer Looking Back V. Normativity a) Excessive Consumption and Norms b) Excessive Consumption and Normativity VI. Conclusions CHAPTER FOUR: Permit But Discourage I. Introduction II. Consumption: A Loyalty Test for Market Economies? III. Marketing Excess a) Paths to Excess b) Creating Demand: Manipulating Choice IV. Law's Intervention: Permit But Discourage a) Introduction b) Permit: A Turning from the Heaviest Hand of the Law c) Discouraging: Can Law Offset the Market? Can Normativity? V. Recreational Drugs: The Outliers? VI. Conclusions PART THREE - WHAT ARE THE ODDS?: REGULATING PROBLEM GAMBLING CHAPTER FIVE: Gambling, Problem Gambling and Normativity I. Introduction II. "One Vast Casino": Gambling in England into the Nineteenth Century III. Twentieth Century Canada: From Crime to Harm Minimization a) Introduction b) Canada: Three Stages of Regulation IV. The Sudden Rise of Legalized Gambling a) Gambling and the Economy b) Benefits and Costs of Gambling V. Problem Gambling a) Prevalence b) What Constitutes a Problem Gambler? c) Factors Associated With Those Most at Risk for Problem Gambling VI. Norms, Gambling and Problem Gambling a) Introduction b) Historical Shifts in Norms and Attitudes c) Ambivalent Attitudes Towards Gambling and Problem Gambling d) Influence of Family and Peers e) Conclusion VII. Conclusion: "This Dreadful Vice" CHAPTER SIX: Regulating Moderation in Gambling? - 1 Overarching Considerations I. Introduction II. Regulating Moderation?: Promoting Cure? Avoiding Excess? III. Overarching Considerations a) Frameworks for Intervention - General Agreement but the Devil is in the Details b) Three Concepts Designed to Promote Intervention c) Independent Authority to Oversee Regulation of Gambling and Prevention of Problem Gambling d) Independent and Well Funded Policy and Research Programs IV. The Rise of Internet Gambling a) Introduction: Untamable Cyberspace? b) Internet Gambling and Its Proliferation c) Problem Gambling and the Internet d) Regulating Internet Gambling e) Regulating Problem Gambling on the Internet? V. Conclusion CHAPTER SEVEN: Regulating Moderation in Gambling? - 2 Specific Interventions I. Introduction II. The "Mix" a) Enforcing Existing Law b) Some Kinds of Gambling are Worse Than Others: Restricting EGMs (Especially VLTs) c) Saying "No"!: Excluding Problem Gamblers d) The Hope of Litigation?: Suing the Providers e) Refereeing Information f) A License to Play? III. Effectiveness of the Mix: "There Must be Some Impact" IV. Conclusions CONCLUSION INDEX

About the Author :
W. A. Bogart received his B.A. and LL.B. from the University of Toronto and his LL.M. from Harvard University. He is University Professor and Professor of Law at the University of Windsor, Ontario, Canada. He co-teaches a first year course in Access to Justice. He is the author of several books, including, most recently, Good Government? Good Citizens? : Courts, Politics, and Markets in a Changing Canada. Professor Bogart was A Virtual Scholar in Residence for the Law Commission of Canada during the years of 2002-2003. He has been a frequent consultant to government and other public bodies regarding legal policy.

Review :
"Permit But Discourage is an engagingly written examination of a hugely important question: How can laws best be used to protect individuals and societies against out-of-control consumption of such things as alcohol, junk foods, sodas, and other unhealthy indulgences, without doing more harm than good? The book clearly and compellingly argues for a mix of laws that permit consumption but discourage excesses, and for finding that mix through trial and error. This fascinating book is a must read for anyone who cares about promoting health as well as human rights in a market-driven economy." --Marion Nestle Professor of Nutrition, Food Studies, and Public Health at New York University "W.A. Bogart provides a masterful treatment of an extremely complex issue: What role can law play in limiting or discouraging rather than forbidding behavior? How can law regulate indulgences? Can it help control gambling and drug abuse, what a person eats, how much a person drinks or recreates, discourage activities such as smoking? Using the concept of normativity as a central framing device to account for decisions to consume, Bogart succeeds in providing new insights on the limits of the law as a mechanism of control. Permit But Discourage: Regulating Excessive Consumption is an important book for anyone concerned about what law can and cannot do." --Herbert M. Kritzer Marvin J. Sonosky Chair of Law and Public Policy University of Minnesota Law School "Excessive consumption constitutes the primary 21st Century public health challenge, and this wide-ranging, well-reasoned book illuminates some of the most significant, harmful, out of control appetites and their consequences. Bogart examines the excessive consumption of alcohol, tobacco, 'junk food' and gambling from a variety of academic perspectives. He brings a scholarly, legal mind to various measures to tame massive harm associated with each of them. The central message of 'permit but discourage' is the approach likely to bring success. I highly recommend this publication to all people interested in this extremely challenging area, irrespective of their academic or professional background." --Max Abbott Professor, Pro Vice-Chancellor and Dean, Faculty of Health and Environmental Sciences Director, Gambling and Addictions Research Centre Auckland University of Technology "In this timely, intellectually powerful series of interconnected essays Professor Bogart explores the interaction of law, normative forces and psychological drives to control excessive consumption, particularly gambling, alcohol, smoking, recreational drugs, and food intake leading to obesity. The regulation of consumption must be measured in relative terms, and Bogart conscientiously analyzes why this is so by drawing upon historical examples and social science research across different domains and experiences from the United States, Canada and various European countries. Bogart's thoughtful analysis and wise insights will greatly benefit legislators, government officials, scholars, students and interested laypersons alike." --Neil Vidmar, Ph.D Russell M. Robinson II Professor of Law, Duke Law School and Professor of Psychology, Duke University "Harmful forms of overconsumption present significant challenges for a liberal society which values the individual pursuit of the good, but also seeks to constrain negative social impacts through government intervention. Permit But Discourage provides a valuable exposition of the normative, legal, and practical complexities associated with targeting overconsumption and developing constructive approaches to restrict associated harms. Professor Bogart illustrates that the government's toolkit for intervention is limited, and care is required in choosing how to use those tools in a dynamic cybernetic environment." --Edward A. Morse, Professor of Law, Creighton University School of Law. "This is a good book that should be recommended to anyone interested in these particular issues, the complexities of constructing coherent public policy, or general notions regarding the effects of law and society and society on the law." --Richard L. Pacelle, Jr., Department of Political Science, Georgia Southern University The Law and Politics Book Review