Commanding to “Nudge” via the Proportionality Principle? A Study on Diets in EU Food Law

This chapter assesses whether nudging techniques can be argued to be a less restrictive but equally effective way to regulate diets in EU law, when contrasted to classical information-related or content-related regulation. It has been argued that nudging techniques, due to their freedom-preserving nature, might influence the proportionality test in such a way that authorities need to give preference to nudging techniques over content-related or information regulation. We will illustrate on the example of EU food law how behavioural sciences have first altered the EU food law’s goal from the mere provision of safety to also steering behaviour towards healthier diets. In line with this development, the regulatory toolbox advanced beyond the traditional dichotomy of content-related vs. information-related regulation, eventually adding nudging as a third way to regulate. Drawing on previous works of legal scholars we will then present the hypothesis that nudging techniques, according to their choice preserving nature on the one hand and steering character on the other, may be less restrictive but equally effective when contrasted with information-related or content-related regulation. With reference to recent CJEU case law that such a claim would better be backed up by scientific evidence, we will evaluate several nudging studies in the area of food that test the effectiveness of this approach. We will illustrate that, while nudging indeed has a choice-preserving nature and therefore might be less restrictive, it may also be classified under certain circumstances equally effective to information-related regulation. The EU judiciary has introduced an interpretation of the proportionality principle which requires a general preference for information-related rules. The evidence presented, however, may call for a different interpretation of the proportionality principle in some cases to the end that it may require policy makers in the EU to primarily use nudges instead of information-related regulation.