By Alberto Alemanno¹, Jean Monnet Professor of EU Law and Risk Regulation, HEC Paris

At a time when policy-makers want to change the behaviour of citizens to tackle a broad range of social problems, such as excessive drinking, obesity and crime, as well as climate change, a promising new policy approach has appeared that seems capable of escaping the liberal reservations typically associated with all forms of regulatory action.

Having relied on the assumption that governments can only change people’s behaviour through rules and regulations, policy-makers now seem ready to design policies that better reflect how people really behave, not how they are assumed to behave as rational agents. The approach, which stems from the increasingly ubiquitous findings of behavioural science², is generally captured under the evocative concept of ‘nudge’³. Inspired by ‘libertarian paternalism’⁴, it suggests that the goal of public policies should be to steer citizens towards making positive decisions as individuals and for society while preserving individual choice. Acting as ‘choice architects’ policy-makers organise the context, process and environment in which individuals make decisions. In so doing, they exploit some patterns of irrationality, often called ‘cognitive biases’, to manipulate people’s choices⁵. For example, inertia and procrastination are factors to be taken into account when designing “default rules” as people tend not to make affirmative choices. Behaviour patterns are also heavily influenced by the emergence of social norms as people are constrained by reputational forces and care about the perceptions of others. “Framing” and presentation of information are also strategic interventions to influence choices. Moreover, evidence suggests that salient and vivid warnings are more effective than statistical and abstract information⁶. Thus, rearranging the display of food makes it more likely that the healthy option is chosen. Indeed, small, insignificant changes in the context in which decisions are made may produce beneficial effects for the public.

It appears intuitive that this deferential approach, if applied to address individual risk choices, carries the potential to promote harm-reduction. This is because ‘nudging’, in line with those who support the principles of harm-reduction, seeks to reduce or mitigate the health risks associated with these risky behaviours, rather than to eliminate them.

Under both US President Barack Obama⁷ and UK Prime Minister David Cameron⁸, administrative agencies have been encouraged to draw on behavioural and social sciences insights in the design or implementation of new regulations⁹. In a wide range of policy fields not limited to health but also including energy, financial services and transport, nudge presents a set of options that public institutions could use in connection with more traditional regulatory tools to produce behaviour change. As a result, behavioural sciences are set to inform the underpinnings of public policy and are doing so at a global level. There are several reasons for the global diffusion of this paradigm of governance: nudging looks like a cheap and smart alternative to expensive regulatory strategies¹⁰; its “soft” and information-based nature is easy to implement without major changes to the rigid regulatory structure; and finally it complements a radical reconsideration of bureaucracies in the informational State¹¹ brought about by Information and Communication Technologies¹².

The global appeal of behaviourally-informed regulation is due to several factors: private commercial organisations, in particular the new actors of the digital economy, are using behaviourally-informed strategies to affect the behaviour of consumers; the use of behaviourally-informed regulatory strategies looks like a cheap and smart alternative to traditional expensive, yet often ineffective, regulatory measures¹³; it promises to be choice-preserving, by always enabling the addressee to opt out of the preferred policy option; its “soft” and information-based nature is easy to implement without major changes to the rigid regulatory structure; and finally it complements a radical reconsideration of bureaucracies in the informational State¹⁴ brought about by digital technologies which enable a more direct interaction between public administrations and citizens¹⁵.

As a result, the emerging behavioural model of policy-making is based upon the premise that any sensible regulation system must consider how the findings of cognitive research might alter our understanding of the behaviour of citizens. In particular, its inclusion into the regulatory process should prevent policy-makers from making irrational decisions, either because of their own misperceptions or unforeseen reactions from the public.

Under this emerging approach, behavioural analysis is perceived as an opportunity to improve the efficacy as well as the efficiency of regulatory intervention, especially when – as it is often the case - it aims at behavioural change¹⁶.

However, while behavioural research demonstrates the extent and limits of rational action, it does not provide regulators with a ready-made framework for incorporating its insights into policy-making¹⁷. It is also contended that the effectiveness of behaviourally-informed regulation is based on weak, almost anecdotal, evidence and its real impact may vary depending on the different cultural and social settings. Some scholars advocate the use of randomised trials to generate the evidence on which to ground the legitimacy of public interventions based on behavioural research¹⁸.

In the light of the above, it is worth asking what behavioural science has to offer to science-based policy-making, and in particular, to harm-reduction approaches. More importantly how could it be integrated into policy-making? Would it be appropriate to develop administrative requirements prompting policy-makers to consider the findings of behavioural analysis while regulating?

This brief contribution tries to address these questions by providing some reflections on how behavioural research can be integrated into public health policy-making and, vice versa, on how public health policy-making can be adapted to the control of a “nudging” State. By revealing as too narrow and ineffective regulatory techniques such as command-and-control to manage the state’s increasing dependence on non-state actors, the emerging behaviorally-informed policy-making promotes a diverse view of state authority and its relationship with civil society and the business world¹⁹.

Behaviorally-informed regulatory approaches are an attractive tool for public authorities for two basic reasons. They seem not only to lead to the design of more effective regulatory policies but also to preserve choice. While this is an important requirement for all policy interventions aimed at individual behaviours, it is particularly crucial in harm-reduction approaches as these do not mandate a particular behaviour but merely suggest a possible alternative. Second, their implementation being low-cost, they tend to be cheap. Yet, despite these promising qualities, these approaches are insidious.

Indeed, there is a the risk that without a rational mechanism to integrate behavioural research into policy-making the wealth of knowledge of this science will continue to have only a haphazard, anecdotal and small effect on the activities of public health authorities. At the same time, given the significant legal concerns raised by behaviourally-informed approaches, such as default rules and disclosure requirements, on citizens’ rights vis-à-vis the Regulatory State, such a framework may also be needed to create a more transparent and accountable process for their incorporation into public health decision-making. Indeed, by their nature, behaviourally informed regulations present a dual quality: they both preserve and compromise freedom at the same time.

As witnessed by the US pioneering precedent, a general requirement imposed on public administrations could serve to accommodate in a more principled and consistent way the insights of behavioural science into policy-making while at the same time protecting them from possible abuses. In particular, it seems that the privileged framework for incorporating behavioural considerations into the regulatory process could be offered by regulatory impact assessment. Within this process of regulatory analysis, behavioural considerations may allow policy-makers not only to consider a broader set of regulatory options but also to empower citizens to have a say, thus increasing the accountability of the regulatory outcome.

Unfortunately the European Commission’s proposal for a revised tobacco products directive only partly embraces behaviourally-informed approaches in its provisions. While most of the proposed tobacco control tools, such as combined graphic and health warnings, no longer aim to inform the public about the adverse effects of consumption but to change social norms, adjusting the ‘choice environment’ to de-normalise tobacco, they do fall short with respect to the use of behavioural findings to promote harm-reduction approaches²⁰.

While the proposal focuses predominantly on tobacco, it also extends the directive’s scope to include products that do not contain tobacco, but nicotine, such as electronic and herbal cigarettes. Their marketing material must now carry health warnings. In addition, e-cigarettes are subject to the same authorisation required for medicinal products. It also maintains the ban on oral tobacco products with the usual exception for snus in Sweden.

This stance on alternative products favours an abstinence-only policy and de facto rejects a risk-reduction policy of encouraging smokers to switch to nicotine-delivery products that carry less risk. This approach may appear understandable (the fear of its proponents is that these products might become a gateway for future consumption). It also seems somehow inevitable, since Big Tobacco has earned mistrust. Nonetheless, it ignores millions of addicted smokers: they are left with only one choice – to continue to consume nicotine by smoking or not to consume nicotine at all.

Given the promises of behaviourally-based approaches to nudge smokers away from conventional tobacco products towards less-hazardous alternatives, the European Commission’s abstinence-only approach is questionable.

While it is true that the science behind these ‘safer products’, such as snus and electronic cigarettes, still needs to be strengthened, it would be a shame should the ideologically-driven ‘denormalisation’ imperative currently animating the public health community deprive society of the rationally-based, potential gains stemming from harm-reduction.

It against this backdrop that I believe that behavioural science may contribute to help shift from a morals-based discussion about harm-reduction to where it belongs: its scientific origin.

REFERENCES IN THIS ARTICLE

^{1) Jean Monnet Professor of EU Law and Risk Regulation, HEC Paris; Scholar at O’Neill Institute for National and Global Health Law and Adjunct Professor of Global Risk Regulation at Georgetown University Law Center. Contact: This email address is being protected from spambots. You need JavaScript enabled to view it., HEC Paris – Law Department, 1 rue de la Libération, F-78351 Jouy en Josas.
2) Daniel Kahneman, Thinking, Fast and Slow (New York, NY: Farrar, Straus and Giroux 2011).
3) Richard H. Thaler & Cass R. Sunstein, Nudge: Improving Decisions About Health, Wealth and Happiness, (London: Yale University Press 2008).
4) Cass R. Sunstein & Richard H. Thaler, “Libertarian Paternalism Is Not an Oxymoron”, 70 U. Chi. L. Rev. (2003), pp. 1159–1202.
5) See, e.g., Jonathan Baron, Thinking and deciding (Cambridge, MA: Cambridge University Press 2007); Dan Ariely, Predictably irrational: The hidden forces that shape our decisions (New York, NY: Harper Collins 2008).
6) For a complete and detailed analysis of the several findings of behavioural sciences relevant for regulatory policy: C. Sunstein, Empirically informed regulation, 78 UNIV. OF CHICAGO LAW REV. 1349 (2011).
7) Memorandum of January 30, 2009, Regulatory Review, Federal Register, Vol. 74, No. 21 Tuesday, February 3, 2009; Executive Order 13563 -- Improving Regulation and Regulatory Review.
8) The UK Government of David Cameron has established a Behavioural Insight Unit: http://www.cabinetoffice.gov.uk/content/applying- behavioural-insights (accessed on the 23 March 2012).
9) Richard H. Thaler & Cass R. Sunstein, Nudge: Improving Decisions About Health, Wealth and Happiness, Yale University Press (2008).
10) K. Yeung, Nudge as a Fudge, 75 MODERN LAW REV. 122 (2012)
11) S. Braman, Change of State. Information, Policy, Power; MIT Press, (2007)
12) B.S. Noveck, Wiki-Government. How technology can make government better, democracy stronger and citizens more powerful, Brookings Institution Press (2009).
13) K. Yeung, Nudge as a Fudge, 75 MODERN LAW REV. 122 (2012)
14) S. Braman, Change of State. Information, Policy, Power; MIT Press, (2007)
15) Social networks are for example changing information flows “in” and “out” of government. Under the various Open Government initiatives, public administrations are experimenting the leveraging of crowdsourcing and other features of the Web 2.0 economy. The literature on this aspect is vast. For a general treatise of the subject, B.S. Noveck, Wiki-Government. How technology can make government better, democracy stronger and citizens more powerful, Brookings Institution Press (2009).
16) Christine Jolls et al., A Behavioral Approach to Law and Economics, 50 Stanford Law Review 1471, 1508-45 (1998).
17) This is the outcome of the Report on Behaviour Change published by the Science and Technology Select Committee of the UK House of Lords, July 2011. See also A. Alemanno, O. Amir, L. Bovens, A. Burgess, O. Lobel, K. Whyte and E. Selinger, Nudging Healthy Lifestyles – Informing Regulatory Governance with Behavioural Research, European Journal of Risk Regulation, Vol. 3, No. 1 (2012).
18) M. Abramowicz, I. Ayres, Y. Listokin, Randomizing Law, 159 UNIV. OF PENN. LAW REV. 929 (2011); this point has also been re-affirmed by Cass Sunstein who also proposes the use of retrospective studies to assess the effectiveness of the deployed techniques: cfr. supra 4 at 1349 ss.
19) See, Karen Yeung, “The Regulatory State”, in Baldwin, Cave and Lodge, Oxford Handbook of Regulation (OUP : 2011), pp. 80-81.
20) Alberto Alemanno, Nudging Smokers - The Behavioural Turn of Tobacco Risk Regulation European Journal of Risk Regulation, Vol. 3, p. 1, 2012.}