Commanding to 'Nudge' via the Proportionality Principle?

This piece assesses whether nudging techniques can be argued to be a less restrictive but equally effective way to regulate diets in EU law. 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, may be less restrictive but equally effective when contrasted to information-related over content-related regulation. With reference to recent CJEU case law that such a claim needs to 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. From the evidence presented the proportionality principle may in some cases require EU policy makers to primarily use nudges instead of information-related regulation.

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