Market nudges and autonomy

Abstract

Behavioural techniques or ‘nudges’ can be used for various purposes. In this paper, we shift the focus from government nudges to nudges used by for-profit market agents. We argue that potential worries about nudges circumventing the deliberative capacities or diminishing the control of targeted agents are greater when it comes to market nudges, given that these (1) are not constrained by the principles that regulate government nudges (mildness, sensitivity to people’s interests and public justifiability) and (2) are often ‘stacked’ – they come in great numbers that overwhelm agents. In addition, we respond to possible objections and derive several policy suggestions.

Full text

ARTICLE
Market nudges and autonomy
Viktor Ivankovi´c1and Bart Engelen2
,
*
1Institute of Philosophy, Zagreb, Ulica Grada Vukovara 54, 10000 Zagreb, Croatia and 2Tilburg University,
Center for Moral Philosophy, Epistemology and Philosophy of Science (TiLPS), Warandelaan 2, 5037 AB
Tilburg, the Netherlands
*Corresponding author. Email: b.engelen@tilburguniversity.edu
(Received 27 February 2021; revised 11 October 2022; accepted 26 October 2022)
Abstract
Behavioural techniques or ‘nudges’can be used for various purposes. In this paper, we shift
the focus from government nudges to nudges used by for-profit market agents. We argue
that potential worries about nudges circumventing the deliberative capacities or
diminishing the control of targeted agents are greater when it comes to market nudges,
given that these (1) are not constrained by the principles that regulate government
nudges (mildness, sensitivity to people’s interests and public justifiability) and (2) are
often ‘stacked’–they come in great numbers that overwhelm agents. In addition, we
respond to possible objections and derive several policy suggestions.
Keywords: Market nudges; government nudges; autonomy; nudge stacking; advertising
1. Introduction
Nudges, subtle tweaks to choice environments that predictably alter people’s
behaviour without restricting their option-sets or changing economic incentives
(Thaler and Sunstein 2008: 6), are often objected to on moral grounds for their
purported autonomy-undermining properties. Hausman and Welch (2010: 128),
for instance, object that nudging diminishes ‘the extent to which [individuals]
have control over their own evaluations and deliberations’. Nudges, in their view,
are no less autonomy-threatening than coercion, especially given their covert form
(Hausman and Welch 2010: 130).1Grüne-Yanoff (2012: 636) voices a similar
concern about nudges being ‘manipulative ::: because they deliberately circumvent
people’s rational reasoning and deliberating faculties, and instead seek to influence
their choices through knowledge of the biases to which they are susceptible’.
Rebonato (2014: 371) also criticizes nudges for entailing an ‘effective reduction
in decisional autonomy’.
© The Author(s), 2023. Published by Cambridge University Press. This is an Open Access article, distributed under the
terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits
unrestricted re-use, distribution and reproduction, provided the original article is properly cited.
1Like Hausman and Welch, we here focus on personal autonomy and not on moral autonomy. Whereas
moral autonomy revolves around people’s capacity to discover and do the right thing, personal autonomy
more broadly concerns people’s capacity to devise and pursue their own values and ends (Christman 2020).
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In most treatises on nudging, critics assume the role of nudger to be occupied
by the government. Nudging rose to popularity precisely because of the basic
insight that the same behavioural influencing techniques used by companies –
such as framing, increasing salience and triggering other cognitive heuristics –
can be employed by government agents for purposes other than profit
maximization. Inspired by this insight, Thaler and Sunstein, the original and
most prominent advocates of nudges, have been promoting these techniques as
a new form of public policymaking (Thaler and Sunstein 2008). Yet, although
the standard autonomy-based objections were raised in response to
government nudging, they seem to be morally applicable irrespective of who in
fact carries it out.
Thus, assessing the impact of government nudges on autonomy seems
insufficient. The policymaker’s infrequent exploration of his new behavioural
playground is a drop in the ocean of existing behavioural influences on people.
This is why we turn our attention to the permissibility of behavioural techniques
from a more common source –the market. In this paper, we argue that the oft-
neglected market nudges raise more autonomy-related worries than their public
counterparts. The purpose of advancing this argument is not to downplay the
threat that government nudges may pose to autonomy, but to point out a
potentially greater threat coming from market nudges that can be raised on
similar moral grounds. Our main claim is that the institutional structure under
which market agents operate provides greater incentives and, in some cases,
more resources to nudge individuals, thereby threatening the latter’s autonomy
more significantly.
The paper proceeds as follows. First, we analyse why market nudges have been
overlooked in debates on the ethics of nudging, and introduce a simple typology that
informs our ethical evaluation (section 2). Second, we claim that their use raises
significant autonomy concerns (section 3). We show that if critics are worried
about autonomy being vitiated by nudges, their worry about market nudges
should be greater, since market nudges (1) are not constrained by the principles
of government nudging (mildness, sensitivity to people’s interests as they see
them, and public justifiability) and (2) are often ‘stacked’in great numbers that
overwhelm people’s autonomy. Our verdict is that the use of nudges in
advertising, product selection and market interactions in general is morally far
more objectionable than government nudging. Third, we respond to objections
that could be raised against our view (section 4). Fourth, we present several
policy applications derived from our normative conclusions (section 5). Apart
from outright bans, we discuss two sets of regulative strategies in advertising
that relate to control of content and of public spaces. The final section concludes
(section 6).
2. What are Market Nudges?
2.1. Some conceptual preliminaries
The kind of nudges that critics have in mind when they raise autonomy-based
objections to government nudging are so-called ‘Type 1’nudges (Hansen and
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Jespersen 2013: 21; Baldwin 2014: 836).2These trigger or tap into cognitive
heuristics, (quasi-)automatic psychological mechanisms that help individuals
economize on their limited cognitive resources for careful reflection. To give a
few standard examples, a nudger can arrange food in a cafeteria so that people
are visually cued into picking healthier options, or she can set up defaults for
organ donation, counting on the psychological tendency of individuals to stick
to the status quo. Neither of these techniques induce reflection or offer reasons,
but aim at steering individuals in more automatic ways.
In this paper, we explore nudges as used by market agents (hereinafter,
‘marketers’), and label them ‘market nudges’. Some may object that we are using
the term ‘nudge’inappropriately here. According to its original conception, a
nudge is not only supposed to be ‘easy and cheap to avoid’(Thaler and Sunstein
2008: 6), but should make individuals better-off by their own lights (Thaler and
Sunstein 2008: 10). More often than not, market nudges will not satisfy these
conceptual conditions.
This is a terminological concern that is not central to our paper. On our
understanding here, nudges are techniques deliberately used to influence people’s
behaviour by tapping into or triggering cognitive heuristics. This is what sets
them apart from more traditional influencing techniques such as incentives,
coercion and rational persuasion. We take nudges to be more or less easily resistible
behavioural interventions that can be utilized by corporate and government agents
for different purposes (for example, to promote the interests of the nudgee, the
nudger or the general public).3
Those who want to define nudges more narrowly, as easily resistible influencing
techniques used by governments to promote the interests of citizens –like Thaler
and Sunstein (2008) do in their ‘libertarian paternalist’framework –can simply
imagine that we are using some other term that includes behavioural influences
used by other agents and for other purposes. Instead of asserting a ‘correct’way
of using the term ‘nudge’, we stick to it partly for reasons of brevity, and partly
to acknowledge the source of the original autonomy-related objections. Our
broader consideration of behavioural influences under a more inclusive ‘nudge’
label helps move the discussion away from the ‘paternalism versus autonomy’
debate, considers other ways in which influences can threaten autonomy, and
reveals that market influences are in fact more autonomy-threatening than
government influences. Limiting our considerations only to nudges, originally
conceived, would rob us of this pertinent and pressing ethical analysis.
2These terms refer to the vocabulary of dual-process theories. These theories distinguish between two
kinds of cognitive processes (or systems) –one quick, effortless, and operating at low capacity or fully
automatically, and the other slower and more controlled and conscious. We do not claim the
correctness of any version of these theories. We merely stipulate that some human reasoning does in
fact operate at low capacity, and that external parties can use findings about such reasoning to
deliberately and effectively influence others. It is these kinds of influences that we will focus on in this
paper. For detailed accounts of dual-process theories, see Evans and Over (1996) and Kahneman
(2011). For an extensive list of cognitive heuristics, see Gilovich et al.(2002).
3As some accounts show, nudges need not benefit targets, but can be utilized to promote prosocial, pro-
environmental and even moral behaviour (e.g. Guala and Mittone 2015; Nagatsu 2015; Schubert 2017b;
Capraro et al. 2019). Even Thaler and Sunstein’s organ donation example is obviously prosocial.
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2.2. Why market nudges have been largely overlooked
The possibility of market nudging is acknowledged in Nudge very early by Thaler
and Sunstein, when they argue that choice architects may simply utilize nudges to
‘Maximize profits, period’(Thaler and Sunstein 2008: 2). The book later sketches
how some heuristics can be profited on, without the advancement of the
targeted individual’s welfare (e.g. in the credit market; Thaler and Sunstein 2008:
132–144). Thaler and Sunstein go on to claim that:
the invisible hand will, in some circumstances, lead those trying to maximize
profits to maximize consumer welfare too. But when consumers are confused
about the features of the products they are buying, it can be profit maximizing
to exploit their confusion, especially in the short run but possibly in the long
run too. (Thaler and Sunstein 2008: 239)4
Still, in Thaler and Sunstein’s defence of government nudging, the purpose of
nudging is usually to counteract not the exploitation of biases by profit
maximizers, but biases in general. Their emphasis is on the failures of
individuals to get things right, and not on the tendency of marketers to
exacerbate this.
Similarly, McCrudden and King criticize Nudge and later work by Sunstein for
fixating on governments and consumers, while ignoring producers. They state that
in ‘prominent examples, Sunstein largely sets to one side the triangular relationship
of government, producer and consumer’(McCrudden and King 2016: 103;
emphasis in original). One such example in the literature, that of New York’s
former mayor Michael Bloomberg restricting the size of soda cups in the hope
of reducing obesity, is explained by Sunstein in terms of people tending to
choose drinks in large cups and the government engaging in paternalism to
counter their bias (Sunstein 2015a:75–76), rather than ‘seeing the soda cup ban
as restricting the harms caused by soda manufacturers’(McCrudden and King
2016: 103; emphasis in original).
Why have nudges from producers largely been overlooked? Multiple factors are
likely at play. First, scholars may have simply followed Thaler and Sunstein’s lead
and focused primarily on government nudges, since they were such a novel concern.
With this shift of academic attention, it is possible that the marketer’s psychological
techniques have, at least temporarily, gone off the radar. Second, this focus might
stem from slightly ideologized notions about government and business. Sometimes,
governments are seen as far more powerful than businesses, and their influence is
thought to pose greater threats to freedom and autonomy. Governments are often
viewed as huge, monolithic and monopolistic structures that can go unchecked
when they nudge, whereas marketers are viewed as much smaller, and their
influences scattered and contested by the competition that characterizes
decentralized markets. While these views are not shared universally, they explain
4For a sophisticated account of this tendency in some areas of market activity and additional ways of
addressing it, see Gaudeul and Sugden (2012). In their view, firms can exploit consumers’cognitive
limitations by introducing what they call ‘spurious complexity’, i.e. by packaging and pricing their
goods in specific ways so as to create unnecessary complexity.
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why laypeople and academics voice their worries when governments discover new
tools to exert power over their subjects. These worries are not always felt as strongly
about the realm of corporate power.
But this perspective is outdated. Particularly with the rise of new information
technologies, large companies such as Alphabet and Meta (owners of Google
and Facebook, respectively) tower over many governments of the world in terms
of knowledge, capacity, power and resources to steer the decision-making
processes of individuals (for a similar point, see Ruehle 2018). And even if we
disregard widespread online nudging, it is still the case that much more of our
day-to-day choices will be steered by powerful market agents, such as banks, fuel
companies or supermarket chains, than by government agencies. Marketers
invest significant resources when designing not only advertisement campaigns
(targeted or non-targeted), but also products, websites, apps and physical stores,
in the hope of influencing the decisions of consumers.
We argue that it is morally erroneous to ignore the activities of marketers in
ethical debates on behavioural influences, for four reasons. First, marketers have
a much greater cumulative capacity compared with governments to steer
behaviour. The vast resources and omnipresence of companies should give us
pause regardless of our previous reasons for fixating on government nudges.
Second, they are, on average, much more experienced in, and had been
familiarized with influencing decision-making long before behavioural findings
were picked up by policymakers. Third, marketers have stronger incentives to
use nudging techniques. For one, unlike governments, they cannot rely on more
coercive measures such as laws or taxes to get individuals to do what they want
them to do. All marketers can do is try to inform, persuade, seduce and nudge
consumers to buy their products, services, or do whatever makes them money.
Fourth, as we will argue in more detail, market nudges are not constrained by
principles of benefitting those they target or helping to preserve their autonomy.
Yet, they influence people in areas where decisions are considered by most to be
non-trivial. As Posner (2013: 212) states: ‘Businesses know, and economists are
learning, that consumers are easily manipulated by sellers into making bad
choices –choices they would never make if they knew better –in borrowing and
investing, and in buying goods and services, such as food, health care, and
education’.
2.3. Nudging-to-sell vs. selling-a-nudge
Marketers use behavioural influences in different ways. Our focus in the paper will
be entirely on nudges they use to steer consumer behaviour; we will not go into
techniques that companies use to influence their employees. Note that the
examples below are only a snapshot of a plethora of influences marketers have
utilized over the years.
The most widespread kind of market nudging, and centrally relevant for
considerations of personal autonomy, is nudging-to-sell. Nudging-to-sell denotes
the marketer’s use of heuristic triggers to make it more likely that consumers
will pick a particular product or service (for a host of examples, see Ang 2020).
The understanding that marketers possess of behavioural influencing may often
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be non-scientific and cultivated through market experience, but their techniques
may often be more effective than those devised by behavioural scientists (even if
it is not specified or clear how exactly they exploit cognition or whether they
have been tested in controlled environments).5
It is important to distinguish nudging-to-sell from selling-a-nudge, the practice of
presenting some behavioural aspect of a product or service as a selling point. Take
wearable activity trackers that induce you to exercise regularly by providing salient
and timely feedback on your (in)activity. Or take HelloWallet, a finance aid that
helps users stick to their commitment to improve savings by appealing to
defaults, peer effects and frames. Such behavioural designs are used to convince
customers to buy this product or service instead of an alternative without that
feature. We do not focus on this category in what follows, since we believe there
is nothing wrong with selling-a-nudge. In such cases, a nudge is sold as a
commodity to informed and consenting customers.
2.4. Nudging-to-sell in three domains: practices and examples
Before analysing the extent to which nudging-to-sell threatens personal autonomy,
we first want to distinguish between three domains of market interactions in which
it can be expected. The first is in direct dealings with salespersons. From
telemarketing to real estate, salespersons know how to trigger heuristics in verbal
exchanges in order to make sales. In car dealership, for instance, salespersons
often make some information more or less salient: drawing the customer’s
attention on additional but largely irrelevant components, or zooming in on the
price of monthly payments, while distracting from the length of payment, fuel
prices, etc. (Akerlof and Shiller 2015:62–63). Or take the practice of haggling, in
which salespersons rely on anchoring. The initial price stated by the salesperson
will often set the tone for the interaction and influence the final price.
Second, nudging-to-sell also occurs when companies deliberately frame different
options, either online, in brochures or in physical choice environments. Take Dan
Ariely’s well-known example, which describes three options for purchasing
subscriptions for The Economist: web-only for $59, print-only for $125, and a
print/web subscription also charged $125. As anticipated, hardly anyone picks
the print-only subscription, which is only there to frame the print/web option as
‘a bargain’(Ariely 2008:2–3). When the print-only option was included, 84 out
of 100 students chose the print/web subscription, while only 16 students picked
the web-only option. Without the print-only ‘decoy’, only 32 picked the more
expensive print/web deal and the majority (68 of 100 people) picked the cheaper
web-only option (Ariely 2008:5–6). Techniques using anchors and decoys are
ubiquitous in market settings. Restaurants, for instance, use decoys in the form
5Exploiting cognition may entail triggering a heuristic, but also preying on cognitive mistakes. In such
cases, marketers profit from cognitive mistakes without inducing them. For example, a podcast episode
of Planet Money from 2014 (Episode 590: The Planet Money Workout; NPR 2014) claims that one
gym had 6000 long-term subscribers, but the capacity for only 300 people to exercise. The reason why
it accepted so many subscribers was the expectation that many of them would hardly ever go, which
proved correct. While preying on cognitive mistakes is morally objectionable in its own right, we
maintain our focus here on cases of heuristics-triggering.
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of particularly expensive meals, so that slightly less expensive (but still profitable)
dishes get picked more often.
Both online and offline, choice environments, i.e. ways in which options and
information are framed and presented are inevitable. That said, companies can
deliberately design them to maximize their profits. In fact, a handsome amount
of resources nowadays is spent on determining exactly how shelf placement best
captures the consumer’s eye.6Or consider the strategies of supermarkets to put
temptation items like confectionery, magazines and cigarettes at the counter,
while placing milk and eggs in the back so that you have to traverse the entire
store in order to get to them (and presumably, buy more items as you go)
(Akerlof and Shiller 2015: 21).7
And then there’s the third, and perhaps the most obvious domain in which to
expect nudging-to-sell: advertising. Certain forms of advertising have for some
time been flagged for their potential to override autonomy (Crisp 1987). Ads
effectively utilize heuristics, including positive and negative frames, statistical
frames, zero-risk bias, salience, priming, the bandwagon effect and anchoring.
Akerlof and Shiller (2015: 45) note that advertisers have not only been honing
their skills at utilizing behavioural techniques, but have developed sophisticated
methods to measure their success.8
To further stress the importance of this analysis, we should realize that these
techniques are not aberrations to how markets work. In fact, one may wonder
whether markets are conceivable without them. Market interactions seem
impossible without salespersons, advertising and deliberately presenting
(information about) different choice options. In all of these cases, companies
should be expected to be biased towards selling. If we are not arguing against
markets themselves, which are more reliable than other economic systems at
producing efficiency and economic growth, what is the point of criticizing
market nudges that markets simply cannot do without?9Furthermore, even if it
is conceded that advertising indeed has the capacity to undermine autonomy
(which we will argue below), it might only be pro tanto wrong given that the
harm can be outweighed by its positive social function to inform consumers and
thus increase their choice range.
These are all noteworthy points. The success of any normative argument we
make here about the capacity of the market to undermine autonomy would have
6For a review of eye-movement studies that explore consumer behaviour at the point of purchase, see
Wedel and Pieters (2008).
7Another strategy in supermarkets is the placement of fruits and vegetables at entry points, due to their
short expiration dates.
8Another domain worth mentioning, which runs across the already mentioned three, is pricing. Think of
portioning the price into a base price and various surcharges so as to obscure the total price (Sugden 2018:
157). Or consider again how anchoring works. When companies can succeed in instilling high numbers in
consumers’minds, consumers are more likely to be willing to pay more. While even completely irrelevant
numbers, such as people’s social security number, have this effect (Ariely et al.2003: 77), this definitely
occurs with sales pricing, in which the original, higher price is still mentioned to both vividly remind
people of their ‘gain’and provide a high anchor. For more insights into the science behind pricing –
e.g. why ‘charm prices’such as $99 work so well –see Poundstone (2011).
9We elaborate further on the conceivability objection in section 4.4.
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somewhat indeterminate policy implications. Our policy decisions may often favour
current market practices, if alternatives only seem worse or more uncertain. For
example, if we cannot yet think of ways to regulate the interaction between
salespersons and consumers without paralysing business operations, then we
should hold off on regulation. Still, we can respond to these worries by making
two points. First, some policy ideas are available for tackling at least some
heuristic exploitation. We might think that the way supermarkets or option
menus are arranged should not be completely at the discretion of the seller. We
might also think that the ways in which we organize public spaces determines,
at the very least, the extent to which the population is exposed to advertising;
ousting advertising from some public spaces, for instance, would seem an
available policy option. Second, it would be normatively sufficient to offer a
strong autonomy-based argument against market nudges, and claim that it
should guide future policy engineering. The argument would not be undermined
just because there is no readily available policy formula. These two points do not
have the capacity to protect consumers from autonomy-undermining influences
entirely, but could shorten the range of threats, which consumers can then
overcome more easily. We will tackle these concerns more extensively in section
4of the paper and will now turn to detailing our argument pertaining to autonomy.
3. How Market Nudges Threaten Personal Autonomy
We turn now to outlining the threat that market nudges pose to personal autonomy.
We test whether market nudges disrupt or undermine the processes of, on the one
hand, setting our ends and value commitments, and on the other hand, pursuing
them (Engelen and Nys 2020). Following DesRoches’arguments, we start from
the assumption that individuals (1) have at least some value commitments that
are ‘normative, affective, and stable’(DesRoches 2020: 563) (for instance, a
person may be committed to her health) and (2) will derive preferences from
these value commitments. Market nudges, we will argue, have the capacity to
reduce the control of affected agents over the formation of these preferences.
3.1. Considerations of personal autonomy
While there are many conflicting accounts of personal autonomy, quite a few of them
revolve crucially around the control agents have over the formation of their preferences.
According to these accounts, autonomy concerns how agents make such choices and
whether they, in some sense, are in control. To specify this vague notion of control,we
take cue from Christman’s two conditions for personal autonomy:
(i) Person A acting on a preference P is autonomous if A did not resist (or
would not have resisted) P’s development when attending to this process of
development;
(ii) The lack of resistance to the development of P did not take place (or would
not have) under the influence of factors that inhibit self-reflection.
(Christman 1991a: 11)
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Take someone who enters a cafeteria and buys a piece of confectionery. How did
her apparent preference for something sweet come about? Did the nudge-enhanced
design of the cafeteria interfere with the formation of the preference? According to
Christman, the person is autonomous if nothing inhibits her capacity to reflect on
her preference formation, and if she would not have resisted the formation of her
preference had she attended to it.
According to the objections to government nudges posed at the outset, nudges
may arguably inhibit self-reflection, and undermine the capacity of individuals to
resist the development of a preference as a result. Notice, however, that
Christman’s account allows that people willingly subject themselves to nudges
while retaining their autonomy. First, they may attend to but not resist how
these nudges shape their preferences. Second, if they do not attend to nudges
influencing their preference formation (which happens a lot), their autonomy is
only undermined if they, hypothetically, would have attended to and resisted
this formation process.
Not resisting the development of a preference and manifesting only minimal
rationality in the process of self-reflection is fully compatible with Christman’s
view on autonomy (Christman 1991b: 347). Christman’s autonomous agents are
not expected to assume full reflective control, making his account plausible in
light of behavioural findings. Christman (1991a: 20) acknowledges ‘that people
often subject themselves, in ways and under conditions that manifest autonomy,
to factors and influences that severely undercut their reflective capacities’.In
short, these two key capacities –being able to attend to and resist the development
of a preference –preserve autonomy, but autonomy is not necessarily undermined if
agents decide against or neglect to pay attention to their preference formation
processes.10
People may not pay this kind of attention, for instance, if they do not care about
being nudged in the market setting, if they believe their particularly strong
preferences will remain unaffected,11 or if they would rather save up their
limited ‘mental bandwidth’(see Mullainathan and Shafir 2013) for reflecting on
decisions they deem more important. For many, the market is exactly the setting
where they wish to invest little cognitive effort.12 Customers in a supermarket or
restaurant are often willing to go along with the nudged choice environment
because many decisions there have small stakes for them.
While we do believe that our personal autonomy is generally safeguarded when
we allow ourselves to be steered in market settings, we should be careful not to
10Throughout the paper, we also take autonomy to be a scalar, rather than a binary property of agents. On
this view, nudges can ‘undermine’autonomy by ‘reducing’the control agents have over the development of
their preferences, but their control (or their autonomy) is not thereby cancelled completely.
11Individuals with a strong commitment may have an easier time resisting behavioural influences. Saghai
(2013: 489) makes the point that influences produce a feeling of dysfluency when they are at odds with
strong settled preferences.
12Individuals could also be completely indifferent in certain cases of decision-making (imagine
consumers with no strong preferences, having to choose between ten nearly identical kinds of toilet
paper). We take it that in most situations of this kind, individuals would not expend finite reflective
resources, and that the cultivation of preferences by market nudging for these individuals would not be
autonomy-undermining.
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assume too readily what decisions individuals deem important, and to what extent
they would accept influences by third parties interfering with their preference
formation.13 In order to assess whether and when market nudges lead to
preference formation processes that threaten the autonomy of consumers, we
believe we need to focus more on the latter’s underlying ends and value
commitments, which are more fundamental than the preferences they form on
the fly.
We attend to the above two autonomy-related processes in reverse order. We first
evaluate the threat of market nudges to autonomously pursuing our ends and value
commitments, and then turn to the more mysterious relation between market
nudges and autonomously setting those ends and commitments in the first place.
3.2. First threat: market nudges can make people deviate from their ends
Objections to government nudges that we mentioned at the start of the paper state
that nudges can bypass reasoning, and could thereby diminish the control
individuals have over their deliberations, evaluations and actions. Given that
market nudges seem to trigger the same kinds of cognitive processes as
government nudges (bypassing reflection and reducing control), market nudges
seem just as worrying as government nudges with regard to autonomy. We call
this the similarity argument.
We claim, however, that market nudges turn out to be much more worrying for
personal autonomy than government nudges. This a fortiori argument, as we call it,
rests on two counts, which we elaborate in the following two sub-sections.
3.2.1. First count: principled constraints on government nudging do not apply to
market nudging
First, in the absence of regulation, market nudging is not constrained by the same
principles that regulate government nudging in liberal democracies like ours.
Whenever government or public agencies implement nudges, in ways envisioned
by Thaler and Sunstein (2008: 6), these are standardly constrained by the
following three principles: (1) resistance-enabling mildness (cheap and easy to
avoid), (2) a sensitivity to nudgees’views about their own interests (promoting
what nudgees themselves judge is best for them), and (3) public justifiability.
While these principles constrain government agents engaged in nudging, we
stress that, importantly, they do not inform market agents in devising nudge
strategies. Let us go into each of these constraints.
As for the first, governments employ nudges as one of many tools at their
disposal (informing, campaigning, incentivizing, sanctioning, coercing, etc.). If
they believe nudges lack effectiveness in influencing people’s behaviour, they
may often justifiably revert to legal stipulations, sanctions, taxes, etc. But when
they do nudge, most proponents agree governments should make sure that
13Additionally, because some market decisions (to take on a job, buy a house or a car) carry significant
weight for people’s livelihoods and are made very rarely, there is good reason to give most regulatory
attention to these domains of market decision-making. We do not explore this idea further here, but it
can be assumed to complement our policy recommendations later in the paper.
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nudges are easy and cheap to avoid. To achieve this, some believe that governments
should employ nudges transparently, so as to make citizens watchful (Bovens 2009;
Ivankovi´c and Engelen 2019) or to reduce the control governments have over
citizens (Schmidt 2017).
By contrast, since marketers cannot coerce consumers into buying their products
or services, they have an incentive to steer consumers in ways that go unnoticed but
have a bigger impact than people might expect and want (were they to attend to the
formation of their preferences). While advertising is often presented as a means of
informing consumers (Bagwell 2007), it is typically enhanced by whatever
psychological tricks marketers have up their sleeves. Moreover, marketers have
strong reasons not to make consumers alert to nudging at all. In contrast to
policymakers, they will not give people hints about how they are using their
techniques,14 or subscribe to any rule that prohibits exploiting their cognitive
weaknesses. In short, given the circumstances they operate in, marketers will
typically have no reason to ensure that their nudges are mild and easy to resist.
In addition, government and market nudgers also differ with respect to their
commitment to promote people’s interests, as people themselves understand
these (second constraint; interest sensitivity), or to promote the public interest
(third constraint; public justifiability). As a matter of principle, governments that
nudge should at least try to serve the interests of their citizens, either directly by
paternalistically making ‘choosers better off, as judged by themselves’(Thaler and
Sunstein 2008: 5), or indirectly by serving the public interest (Guala and Mittone
2015; Moles 2015).
While this may paint an optimistic picture of governments, it is at least how
government nudges were envisioned by Thaler and Sunstein15 and how they
have been justified on a democratic basis (Sunstein 2015b; Schmidt 2017). In
addition, institutional mechanisms are in place that hold liberal democratic
governments accountable and incentivize them to act on these principles. Think
here of fair, free and regular elections, legal and deontological codes for public
servants, the public and transparent nature of discussions and decisions made by
political bodies (which incentivize politicians not only to talk the talk –and
defend positions that they deem publicly justifiable –but also to walk the walk16),
public scrutiny from independent organizations and a free press, etc. When
governments design so-called ‘dark nudges’(Petticrew et al.2020) that are at
odds with people’s interests (in their own lights) and/or lack transparency or
public justification, they will likely be called out and possibly face consequences,
such as electoral failure. While nudges implemented by governments can and
sometimes do undermine people’s autonomy by bypassing reflection and
14In fact, Wendel (2016: 98) notes that ‘companies and marketing agencies that apply behavioural
techniques ::: are often under nondisclosure agreements about their work’, making these techniques
more difficult to study and track than government nudges.
15Aside from the worry that government agents may want to promote their own interests, this paternalist
justification has also been criticized by Sugden (2018: Ch. 4) who argues that it unrealistically assumes that
people have ‘true’or ‘latent’preferences that they fail to satisfy, but that governments can help satisfy by
redesigning choice environments.
16Elster (1998: 111) speaks of the ‘civilizing force of hypocrisy’in this respect: ‘Publicity does not
eliminate base motives, but forces and induces speakers to hide them’.
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reducing control, policymakers and bureaucrats have good reasons to ensure that
people can notice and resist such influences (first constraint; see also Ivankovi´c
and Engelen 2019) and that nudges are in line with people’s interests (second
constraint) or publicly justifiable in some other way (third constraint).
To be clear, we do not deny that policymakers and bureacrats can (be
incentivized to) employ nudges that ‘realize their own intermediary goals (on
their way to re-election)’(Schubert 2017a: 515). They may nudge to serve their
own interests instead of the public good and may do so covertly instead of
transparently. Starting with Buchanan (1987), public choice theorists have
stressed that political behaviour is as self-interested as market behaviour and
that there is no reason to assume that government agents are any more
benevolent or public-spirited than market agents (Tresch 2015:15–17).
Obviously, governments have their own interests that they can try to promote by
nudging individuals in different ways. Electoral cycles and other aspects of the
institutional framework under which they are operating (like a commitment to
economic austerity) can incentivize them to opt for nudges instead of less
popular and more costly measures such as subsidies or the enforcement of legal
constraints. In the nudge literature, this point has forcefully been made by
Schubert (2017a) as part of his ‘political economy of nudging’. In fact, it dates
back to Jolls et al. (1998: 1545) who already claimed that ‘behavioural
bureaucrats’can cause government interventions to ‘make things worse’rather
than better.
Three remarks are in order here. First, the extent to which government agents
actually employ hard-to-resist, self-serving and publicly unjustifiable nudge
policies is an empirical question that cannot be decided on the basis of blanket
generalizations or assumptions (which can be too naive but also too harsh).
Policies should be informed by empirical findings about the biases, preferences
and motivations of those being nudged and of those doing the nudging (in both
markets and politics). Second, as mentioned, our main claim and argument here
is comparative in nature, namely that government agents are governed by
principles and constraints that are largely absent for market agents. The three
aforementioned constraints can be expected to govern public policymaking in
well-functioning liberal democracies in ways not applicable to market agents.
When public agents use nudges that are hard to resist, insensitive to people’s
interests and/or lack public justification, they will likely be blamed for violating
principles they are supposed to uphold. Companies doing the same may face
backlash as well, but are, importantly, not expected to uphold such principles in
the first place. In other words, if government nudges raise concerns about
undermining personal autonomy, market nudges should raise greater concerns
in this respect. Third, our approach is in fact in line with Buchanan’s: instead of
assuming that government agents are more benevolent than market agents, we
claim the main difference lies in the institutional framework in which they operate.17
17Cf. Buchanan (1987: 245–246): ‘The differences in the predicted results stemming from market and
political interaction stem from differences in the structures of these two institutional settings rather
than from any switch in the motives of persons as they move between institutional roles.’
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Because the above three principles do not regulate market settings, market
nudges are more likely to be detrimental to people’s autonomy, i.e. to the level
of control people have over their preference formation processes. Marketers are
simply not constrained in the same ways that policymakers are. Surely, they may
take mildness, interest-sensitivity and public justifiability into account, but only
when and to the extent that this coincides with their economic incentives. And
while there are some legal regulations in place, such as forbidding fraud, there
are no principled reasons and no corresponding institutional mechanisms for
market agents to constrain themselves to easily resistible nudges that have
people’s private and public interests in mind.
Market nudges do seem more tolerable when they prod people to act in line with
their value commitments. Many market nudges are designed with such purposes in
mind. Following Beggs (2016: 127), market nudges that both maximize profits for
marketers and promote the interests of consumers can be called ‘Pareto nudges’.
Conversely, some techniques exploit biases in order to maximize profits for
marketers, but run counter to the benefit of consumers (Beggs 2016: 138). Call
these exploitative nudges.18 Although Pareto nudges are not constrained by
mildness in principle, and may influence individuals when they would rather not
be influenced, they are at least more respectful of personal autonomy than
exploitative nudges. If the market provided enough incentives for marketers to
carefully gauge the value-based preferences of customers and stick to Pareto
nudging, market nudges would raise fewer autonomy worries. While companies
often do aim to engage in Pareto nudging, they will only do so when this fits
into a broader profit strategy. Sadly, it will often be more profitable for
marketers to tempt weak wills instead, and lure people into decisions they have
reason to avoid and regret. In so doing, they undermine the synchrony between
individuals’first-order preferences, as shaped by the exploitative market nudges,
and their underlying value commitments.
Some will no doubt suggest that a healthy competitive market will punish such
exploitation. If consumers’cognitive weaknesses are exploited by marketers, they
would claim, consumer demand will go to other, more trustworthy suppliers.
Sugden (2018), for example, argues that the market is essentially about mutual
advantage, offering participants both opportunities and incentives to mutually
benefit each other. Businesses will not make profits if they fail to provide
products and services that consumers are willing to purchase (and that
willingness arises from the perceived advantage). Even if consumers are initially
misled, claims Arrington (1982: 8), the product is unlikely to be purchased
again, forcing businesses to withdraw deceptive advertisements. This boils down
to claiming that competitive markets incentivize Pareto nudges and restrict
opportunities for exploitative nudges.
18We take both concepts to be intention-based, meaning that market nudges are designed intentionally to
promote either long-term interests, or exploit short-term temptations. Many designs of this kind will fail.
Some Pareto nudges will fail to promote ends and commitments, and some exploitative nudges will not
successfully reap profits for marketers. But in that case, they should be treated as failed Pareto nudges
and failed exploitative nudges.
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However, the expectation that businesses will stick to using Pareto nudges and
that consumers will flock to these businesses is too optimistic about consumer
behaviour. Consumers may sometimes forget about a particular purchase. They
may also fail to notice that they have been nudged by marketers, and even if
they do notice, they may not recognize this influence as decisive in producing
their actions. Their failures in both cases may be caused by an undue optimism
that they are immune to market influences such as advertising, or at least
significantly more resistant than others (Berger 2017). In addition, consumers
have been shown to rationalize post hoc whatever they ultimately decide to do,
which is known as ‘post-purchase rationalization’(Mather et al.2000). This casts
doubt on whether consumers would end up blaming nudgers for bad decisions, and
not themselves.
Generally, nudges can be said to run across three spectrums: (1) easily versus
hardly resistible, (2) more or less sensitive to people’s interests, and (3) more or
less publicly justifiable. Our claim is not that government nudges occupy the
positive side of each spectrum, whereas market nudges occupy the negative side,
and our aim here is not to redeem government nudges. Rather, we suggest that
the placement of nudges on these spectrums mostly depends upon institutional
mechanisms that are in place when liberal-democratic governments consider
nudging, but that are largely lacking when it comes to companies. While
governments may try to implement forceful and self-serving nudges that are not
publicly justifiable, these mechanisms will help detect and criticize those
practices, as they are clearly at odds with how liberal democratic governments
justify themselves. Companies, on the other hand, are not faced with the same
kinds (or the same level) of demands for justification.
3.2.2. Second count: nudge stacking
The second, and possibly graver count of the a fortiori argument, on which market
nudges seem far more threatening to autonomy than government nudges, is what
we call ‘nudge stacking’. Coons and Weber (2013:21–22) have pointed out that, in
any given choice environment, there could be more or fewer nudges at play, and if
there were more, this would likely constitute a stronger influence on individuals. To
the extent that government choice architects in liberal democracies uphold the
aforementioned principles, they have reasons to refrain from excessive nudging.
After all, the worry here lies not with this or that nudge or with the underlying
end it promotes, but with their sheer volume. While the exact effect of increasing
the volume of nudges is uncertain (e.g. perhaps some nudges would cancel each
other out) and should prove a fruitful area for empirical investigation, it seems
at least likely that the more nudges there are (in any particular choice environment
and across different environments), the more personal autonomy is under pressure
(ceteris paribus). The more environments are flooded with nudges, the less likely it
seems that people will successfully navigate and resist all of them, even if every single
nudge is mild.
In market settings, nudges seem likely to be excessive in number. Competitive
markets produce strong incentives for the many agents operating in them to
nudge if they want to keep up with competitors. In fact, it seems at least that
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the healthier the market competition, the more marketers there will be to engage in
nudging, making it more likely that market nudges will be stacked and,
consequently, the more difficult it may become for consumers to navigate the
behavioural landscape.
In addition, interactions between marketers and consumers are increasingly
occurring online. The advancement of new and expanding communicative
channels provides new opportunities for effective market nudging (Yeung 2017).
If marketers indeed enjoy a continuously expanding platform for behavioural
influencing, and are incentivized in doing so to keep up with their competitors,
then market nudges are likely to become stacked, which poses the threat of
additive harm. In other words, even if a singlemarketnudge(onesubway billboard,
one deliberately designed search result, one physical store) does not gravely threaten
autonomy, the more significant threat may come with their ever-greater numbers.
To employ so much nudging also gives marketers ample opportunity to polish their
methods. Abdukadirov (2016: 182) has offered an effectiveness-based claim that
markets are better for coming up with and updating nudge techniques than
government policy, given the greater feedback from targeted individuals. As a result,
however, autonomy might be impacted to a greater extent. If stacking nudges will
upgrade the marketers’know-how for steering behaviour, then this will also increase
their capacity for undermining autonomy.
Finally, market nudge stacking raises concerns not only because it threatens
consumer autonomy, but because different people’s autonomies may be affected
very unequally. Mullainathan and Shafir (2013) have argued convincingly that
scarcities of all kinds occupy people’s attention and reduce their capacities for self-
control. Because the attention of the poor and the deprived is occupied by more
than one of such scarcities, they generally find it harder to resist temptation. Since
market nudges are often designed to tempt weak wills (or in the case of the poor –
weakened wills), their effects may disproportionately threaten the autonomies of the
poor. If this turns out to be empirically correct, then allowing uninhibited market
nudging would raise justice concerns on top of autonomy concerns.
We should reiterate that the empirics are still lacking. Neuroscientists and
behavioural scientists should investigate how our brains process environments
stacked with market nudges. Do we suppress some of the advertising into the
background and succeed in not noticing it? Or do we become overwhelmed, so
that greater impact results from greater numbers? These questions caution us
against making hasty judgements about how exactly nudge stacking relates to
personal autonomy.
That said, we want to make three careful, yet commonsensical suggestions. First,
nudge stacking in markets seems relevant for autonomy because it increases the
likelihood that individuals will be steered in directions that go against their
values and ends. After all, the more nudges there are in the market, the more
likely it seems that some effects will go unchecked. Second, an abundance of
market nudges entails more temptation in areas where individuals often feel
weak (think of our predilection for sugary and fatty foods and drinks that fast-
food marketers exploit). Crucially, our attempts at resisting these nudges,
through learning where to anticipate them and being on the lookout for them,
will require cognitive effort (or mental bandwidth) that individuals can no
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longer expend on other purposes (Mullainathan and Shafir 2013). Third, nudge
stacking is likely to have effect not only on whether we succeed in pursuing our
ends and value commitments but on how we set them. We turn to this in the
following sub-section.
3.3. Second threat: market nudges can unduly intervene in people setting
personal ends
So far we have established that market nudges can inhibit consumers in pursuing
their values and ends, for example by playing into their weakened wills. Here, we ask
whether there is a more fundamental kind of influence that marketers can have,
namely whether they can interfere in how people come to adopt their underlying
value commitments and ends (Engelen and Nys 2020). If market nudges succeed in
changing our behaviour, they may be able to do the same to our values and
conceptions of the good life (see for example Schor 1998; George 2001;
Lindstrom 2011). If marketers successfully nudge us into trying out a new fast-
food restaurant (or any brand of car, clothing, etc.), we may end up, well, loving it.
Discovering and acquiring new tastes can be perfectly compatible with consumer
autonomy. However, consumers may also be unaware of and unwilling to
acknowledge the extent to which market nudges non-reflectively influence their
conceptions of the good life. Thus, it is possible that they come to adopt some value
or end but would, hypothetically, have resisted this formation process had they
attented to it.
While the influence of market nudges on day-to-day preferences, when entering
supermarkets or shopping online, is fairly straightforward, the process of setting
one’s values and ends is much more intricate. As a result, justifying the claim
that market nudges unduly intervene in this process requires more than just
showing that market nudges take part in changing people’s values: one should
also show that they have made it very difficult for consumers to reflect upon the
formation of their values and ends.
As a general claim about nudges, this is too strong. While we are surely nudged to
buy stuff we do not need (Schor 1998), typically this does not inhibit us to take a
break every now and then, ask what it is that we need and set our own priorities in
life (Engelen and Nys 2020). In specific instances, however, this claim is very
plausible. First, think of nudges that trigger or play into addictions. As Schüll
(2012) details in her ethnography Addiction by Design, casinos are deliberately
designed –using physical architecture, colors, and sounds –to ensure that
people keep gambling. Such ‘dark nudges’(Petticrew et al.2020) play into
people’s addictions and vulnerabilities without enabling control or reflection over
them. Second, market nudges, especially when stacked, can induce a lot of small
changes in people’s behaviour, that in the long run and in combination with
other non-reflective processes such as cognitive dissonance reduction, lead to
non-autonomous changes in people’s values (Engelen and Nys 2020: 149). While
it is hard to imagine how a simple market nudge could manipulate us into
revising our fundamental value commitments, a more subtle, indirect and long-
term impact of a flood of nudges steering us in one direction is surely conceivable.
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4. Objections
We have claimed that market nudges have the capacity to undermine personal
autonomy, and may in fact pose a more considerable threat to it than
government nudges. This claim is not without opposition. First, we address the
claims of White (2013), whose arguments run in the opposite direction to ours
and who claims that market nudges, unlike government nudges, are not
disrespectful (4.1) and are easier to expect (4.2). We then attend to further
objections to our claim that market nudges should be constrained, namely that
this is too demanding (4.3), inconceivable (4.4) and that market nudges do not
gravely infringe personal autonomy (4.5). In our view, these objections partly
explain why nudge theorists have shied away from ethically evaluating market
nudges. Addressing these objections will also inform our short overview of
policy suggestions in section 5.
4.1. Market nudges are not disrespectful
In his book The Manipulation of Choice, White (2013) offers a moral claim opposite
to ours –that government nudges are by far more objectionable than market
nudges. White’s reasons for favouring market influences build on his prior
objections to government influences. At the centre of his objections is the so-
called knowledge problem, referring to the inability of government agencies to
track the interests and values of citizens (as they themselves understand them),
and, thus, to nudge them towards options these citizens would choose by their
own lights (see also Rizzo and Whitman 2009). Since governments lack
knowledge about people’s interests and values, any government nudging aiming
to promote these is presumptuous about their content. This is why, White
believes, government nudging is marked by a disrespectful attitude that offends
against the personal autonomies of its targets (White 2013: 117).
As we noted earlier, however, there are both normative principles that
governments are expected to uphold and institutional mechanisms that
incentivize them to do exactly this –nudge only in easily resistible, interest-
promoting, transparent and publicly justifiable ways. When they do, government
nudging would not be so obviously offensive to autonomy, since people’s
capacity to consent to or reject the presumptions of government would be
strengthened. But let’s imagine, for the sake of White’s argument, that such
transparency is not feasible and that governments will do at least some tenuous
approximations of people’s interests and values. White believes this is offensive,
or at least more offensive than how businesses operate:
Although the government ::: presumes to promote your interests, businesses
have their own interests –primarily, to maximize profit. Businesses are
interested in your interests only insofar as those interests lead you to buy
their products, not for your good. Whatever you think of the profit motive,
the advantage of the single-minded purpose behind much business behavior
is that they’re not presuming to make decisions for their customers in their
own interests. (White 2013: 108–109)
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Assume that White’s claim is always true –governments always nudge in line with their
approximation of the nudged person’s interests and values, while marketers nudge
without regard for those and for their own benefit. What makes the first attitude
disrespectful, as compared with the second attitude? White is not explicit about this.
He explains that the first attitude is disrespectful because it is presumptuous
about the nudgee’s interests and values. But would it follow that the second
attitude is respectful, because it is, presumably, not presumptuous? Attitudes can
be disrespectful for other reasons.
While one could argue that behavioural influencing is known, by consumers, to
be part of the marketers’modus operandi, and that marketers are honest about their
profit-seeking motivations, their attitude might still be quite disrespectful in its own
way. It is characterized by an objectionable indifference to the value of citizens’
autonomous pursuits compared with one’s own, and the readiness to use
heuristic triggers to gain at their expense without providing them with any help
to opt out. Arguably, this seems a disrespectful attitude. Once again, marketers
will often have an incentive to nudge customers in line with their perceived
interests and action plans, but this is entirely contingent upon their short-term
or long-term profit strategy. The regard for the customer’s interests and values is
purely instrumental for marketers within a market rationale.
Additionally, even if motivational honesty about one’s ends somehow were
sufficient for being respectful towards nudgees, it is not obvious that marketers
will predominantly be the honest, whereas governments the dishonest party. We
agree with White that, as a rule, companies are in the business of making
money. But this also means they are willing to go the extra mile to distract their
customers from this general fact –by convincing them that they ‘care about’
and ‘respect’whatever they think their customers care about (their own welfare,
environmental benefits, or what have you). As for government agents, whether
we expect them to be honest about their motivations will often depend on the
level of trust we put in governments. In liberal democracies, such expectations of
government agents will tend to be higher, but so will the institutional pressures
placed upon them to uphold transparency about their motivations and their
policies. In these circumstances, it is reasonable to expect governments to be
pressured into motivational honesty. Hence, White’s notion of honest businesses
and dishonest governments is exaggerated.
4.2. Market nudges are easier to expect
Another suggestion by White for why market nudges might be less detrimental to
personal autonomy is that, unlike government nudges, we learn to expect them:
We know businesses do whatever they can –hopefully within the law and other
ethical norms of their industry –to make money, and we fully expect them to
do whatever they can to make money, even if we’re not aware of what exactly
they do. It doesn’t take an extreme belief in caveat emptor (‘let the buyer
beware’) to realize that consumers should expect businesses to manipulate
their behavior to some degree and to guard themselves against it to
whatever extent they can. (White 2012: 109–110; emphasis in original)
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Expectations of consumers seem to be relevant for the preservation of autonomy in
the face of interferences that could divert them from pursuing their ends. If we
expect to be nudged in the market setting, this can help us fend off some
autonomy-undermining influences. But this general expectation is not sufficient
for protecting autonomy in most instances. Transparency about the fact that
nudging techniques can and will be used –what Bovens (2009: 216) has called
type interference transparency –is insufficient, for it tells us very little about the
specific kinds of techniques in use, in what way these techniques are deceptive,
how numerous they will be, whether they are resistible, etc. For instance, as
Bovens (2009: 216) states, governments could be transparent in this general way
about the use of subliminal advertising, but that would hardly render it permissible.
In order to protect their autonomies, consumers need to be able to access the
more fine-grained information about market nudging techniques. As we have
argued before, marketers will be extremely reluctant in providing this information
(in contrast to democratic governments where such a transparency constraint is
more likely to be respected).
4.3. Refraining from market nudging is too demanding
Is it overly demanding to require marketers to refrain from behaviourally
influencing prospective consumers for profit-maximizing purposes? Thaler and
Sunstein (2008:5)‘argue for self-conscious efforts, by institutions in the private
sector and also by government, to steer people’s choices in directions that will
improve their lives’. However, according to Sunstein, circumstances overriding
this plea are quite common in the market setting:
In identifiable cases, those who do not exploit human errors will be seriously
punished by market forces, simply because their competitors are profiting from
doing so. Credit markets provide many sad examples. Consider cell phone
plans, credit card plans, checking accounts, and mortgages ::: In all of these
areas, it is possible that companies that provide clear, simple products would
do poorly in the marketplace, because they are not taking advantage of
people’s propensity to blunder. (Sunstein 2015a:10–11; emphasis in original)
Thus, in certain areas of the market at least, requiring marketers to refrain from for-
profit influencing would be tantamount to asking them to allow their businesses to
go under. While there might be areas of the market in which there are incentives for
such restraint (for instance, to preserve the company’s reputation), Akerlof and
Shiller (2015: xii) state that:
unregulated free markets rarely reward ::: heroism, of those who restrain
themselves from taking advantage of customers’psychological and
informational weaknesses. Because of competitive pressures, managers who
restrain themselves in this way tend to be replaced by others with fewer
moral qualms.
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We concur with both Sunstein and Akerlof and Shiller that, in most circumstances,
markets are unforgiving arenas, where staying in the race often demands employing
the entire toolset of legally available means. In such circumstances, a requirement of
restraint seems overly demanding. If, in the near future, people become acutely
sensitive to the exploitation of bias for market gain, say, because it brings about
costly negative externalities, marketers may become more likely to respect pleas
of restraint (although this will more likely be motivated by business incentives).
A different matter is whether it would be demanding, for both institutions and
citizens, to come up with a regulatory scheme that would curtail the use of market
nudges. Of course, some legal rules that regulate the use of specific advertising techniques
(e.g. forbidding deception) and other design aspects of work environments (e.g.
providing safe and healthy work environments) are already in place. That said, a
stricter legal framework constraining market nudge use with an eye to protecting
consumer autonomy would constitute a new game for companies to play. Note that
such schemes need not require the market to be regulated across the board.
For example, restricting the use of market nudges in particular public spaces
could be one form of regulation. It would not be counted against it that not all
nudges in the market setting are restricted. In fact, a limit to government
interference may well be justified. Namely, governments would be stifling
marketers if they were interfering with every segment of their business
operations. But some regulation could make an important difference given the
stacks of nudges that overwhelm autonomous decision-making. Hence, a
regulation strategy to protect personal autonomy by restricing some market
nudging need not be overly encompassing, nor overly demanding. It can focus,
for example, on the most autonomy-threatening aspects of market interactions
in areas of decision-making that are most commonly regarded as non-trivial.
4.4. Markets without market nudging are inconceivable
We mentioned in section 2.4 that it might be hard to even conceive a market
properly ‘purged’of market nudging. Practices of advertising and other market
nudging have become so hardwired into our practical conception of the market
that it is arguably difficult to envisage markets without market nudging, or to
assess whether they would be desirable.19
The conceivability concern has two versions. First, it might be suggested that
market nudges are a constitutive part of market activities. In effect, any argument
against market nudges would be an argument against markets themselves. If so,
opponents could dismiss our arguments because, although market nudges might
undermine personal autonomy, we cannot dowithoutthemifwewantanefficient
system of economic coordination. However, we are not interested in mounting an
all-out attack on markets on the shoulders of a criticism of market nudges or
engaging in a broader behavioural welfare economics debate about the justification
of markets in light of behavioural findings (see, for example, Sugden 2018). Imagine
that some market nudges were shown to be constitutive parts of the practices that
19We may think of specific markets where, for example, advertising is stifled, such as the market in
tobacco products. However, we might still have trouble imagining advertisement bans across the board.
20 Viktor Ivankovi´c and Bart Engelen
https://doi.org/10.1017/S0266267122000347 Published online by Cambridge University Press

contribute to mutual advantage to an extent much greater than any other system of
economic coordination could secure. This would be sufficient for preserving this
space for market nudges. But this will not hold across the board. Some forms of
advertising or bartering practices used to swindle buyers are not constitutive, and
markets are perfectly conceivable without them.20 As long as we are able to identify
such practices and devise regulatory counters that do not undermine the market as
a whole, criticisms of market nudges can be mounted independently of criticisms of
markets.
Second, it might be suggested that market nudges are a constitutive part of
valuable market practices. For instance, some may view certain aspects of barter
in a romantic light, and would object if these practices were eliminated through
regulation. They might try to draw on arguments like that of Cohen (2012: 149),
who claims that we have good reasons to conserve things that are valuable, even
if things of greater value could replace them. If certain market practices
involving market nudges indeed have value in terms of culture or tradition, then
we might consider placing some constraints on autonomy.
However, a conservative argument truly inspired by Cohen’s account would have
to show that preserving practices involving market nudges does not also preserve
injustice (Cohen 2012: 144). Rampant market nudging has the capacity to
produce profound inequalities. Because these considerations divert us into the
domain of justice, we only drop two small hints as to how these troubling
inequalities come about. First, as we argued before, rampant market nudging is
unjust because it affects the autonomies of the poor more significantly, in terms
of increasing the cognitive burdens imposed on their mental bandwidth
(Mullainathan and Shafir 2013). Second, it might give marketers a systematic
advantage over consumers. This is because marketers in an arena of unfettered
nudging are provided with numerous opportunities to test influences and
maximize their effect. As a result, consumers, even when they are educated
about the workings of nudge techniques, are faced with ever greater challenges
to keep track of all the ways in which their heuristics are being targeted.
4.5. Pervasive influences do not undermine autonomy, so why would market
nudges?
Contrary to our suggestion about the additive harm of stacked market nudges to
autonomy, some might think that the invasion of market nudges in fact downplays
autonomy-related objections against them. If there are so many market nudges
around, then what difference do a few additional ones make? Better yet, if
behavioural influences triggering the same heuristics are pervasive in all areas of
social life (Shafir 2016), and if these seem fairly innocuous, then market nudges
might not be deeply or gravely autonomy-undermining. Consider Sunstein’sclaim:
20If these practices indeed tap into consumers’cognitive vulnerabilities, at the expense of their autonomy,
they arguably do not succeed in generating mutual advantage, which is regarded as perhaps the main
advantage of market transactions (Sugden 2018). Therefore, regulating market nudges that exacerbate
consumer vulnerabilities could arguably be justified on mutual advantage grounds. We thank an
anonymous reviewer for pointing us to this additional justification of market nudge regulation.
Economics & Philosophy 21
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Much of modern advertising is directed at System 1, with attractive people,
bold colors, and distinctive aesthetics ::: Doctors, friends, and family
members (including spouses) often do something quite similar. Is romance
an exercise in manipulation? Maybe so. Is medical care? Is the use of social
media? A great deal of conduct, however familiar, can be counted as
manipulative in some relevant sense; but it would be extreme to condemn
it for that reason. (Sunstein 2016: 60)
Sunstein’s point is that if we were to highlight manipulative tendencies across the
vast areas of human interaction, the wrongdoing of many single instances of
influencing would seem downplayed and would not warrant expressions of
condemnation. But his conclusion seems hasty. The pervasiveness of certain
practices of manipulation, even those in our private life, and our being used to
them, should not be sufficient to think that condemning these practices is extreme.
We do not have the space here to offer a moral assessment of ‘nudging in the
private sphere’. Yet, our position can be gathered from our account on market
nudges. If agents in either the private or the market setting deliberately aim to
trigger our heuristics in ways that push against our value commitments, then we
are justified in raising autonomy complaints. The pervasiveness of these
practices does not mean that they are unobjectionable.21
Yet, a related concern might arise here. Although ‘nudges’in our private lives are
pervasive and could undermine our autonomy in a similar way to market nudges,
we would probably consider state interference inappropriate in our private domain.
If so, is state interference appropriate for the market setting?
We believe it is. According to Rawls (1996: 266), markets are part of the ‘basic
structure’, the purpose of which is ‘to secure just background conditions against
which the actions of individuals and associations take place’. The structure of
the market is supposed to fit into these just background conditions. It could be
plausibly stated, as we have hinted in section 4.4, that the exploitation of
cognitive heuristics in market interactions erodes the background conditions of
justice. For instance, the systematic exploitation of heuristics would favour
marketers over buyers and allow autonomy to be undermined for market gain. If
this would indeed be the case, we would have at least pro tanto reasons to
derive legal rules from the basic structure that would remedy the resulting
deviations from justice.22
21Admittedly, Sunstein’s intuition about pervasiveness is a lingering one. What might explain it? Luckily,
there is no shortage of answers. It could be based on a status quo bias against increased regulation, or, as we
mentioned before, an ill-founded optimism that we are not susceptible to market tricks and advertising. In
addition, these biases might be reinforced by a lack of precise measure that would quantify the impact of
market nudges on personal autonomy. In other words, we have no means of saying just how much or how
often a market nudge (or a stack of market nudges) undermines our control over the formation of our
preferences. Although our account cannot help in this regard, our reasoning aims to counteract our
tendencies to revert to status quo or optimism biases.
22In addition, Rawls (1996: 365) believes that advertising is ‘socially wasteful, and a well-ordered
society that tries to preserve competition and to remove market imperfections would seek reasonable
ways to limit it’.
22 Viktor Ivankovi´c and Bart Engelen
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5. Policy implications
Now that we have established that regulating the market’s behavioural landscape is
appropriate, we turn to considering the policies that could alleviate the threat that
market nudges pose to autonomy. Recall that our considerations are aimed at
curtailing the use of market nudges to protect autonomy, not rejecting the
market or revolutionizing it to the point of seriously undermining the incentives
that drive its efficiency. We should be careful not to throw the baby out with
the bathwater. Many market nudges are deeply integrated into market interactions
(such as product placement) and it would be difficult to conceive the market without
them. Thus, a policy scheme should not start an inquisition against market nudges,
but should rather look for ways of thinning out their numbers and effects when this
is conceivable and appropriate all things considered. The goal of policy should be to
gradually reduce the burden on autonomy imposed by market nudges.
Oliver’s‘budge’strategy, which focuses on providing public officials with ‘an
education in behavioural economic concepts’and ‘insights into where and how
their citizens’cognitive limitations are being exploited excessively’(Oliver 2013:
698), may provide the first step towards a successful policy scheme. The goal of
the budge strategy is to hamper the ‘profit-oriented industry’by informing
regulators’decisions ‘on where and how to regulate’(Oliver 2013: 698–699). So,
how should ‘budging’translate into policy?
One suggestion might be to ‘meet fire with fire’(Sunstein 2016: 63), by
counteracting market nudges with government nudges. After a decade of
interdisciplinary research into nudges, government agencies have acquired significant
capacities to steer individuals towards desirable options. Why not steer them away
from undesirable ones? An informed policymaker could consider where and when
market nudges can undermine autonomous choice the most (e.g. choices
pertaining to health, finance and big purchases), and devise government nudges
that help consumers avoid detrimental decisions.
However, the addition of government nudges would exacerbate instead of
address worries about nudge stacking, since choice environments would become
even more saturated with nudges. Another difficulty with this strategy is that
marketers are better placed than the government to quickly and effectively
employ new nudges, and thus counteract the counteracting by government. In
short, a nudge bidding war would hardly relieve autonomy concerns.
A policy scheme thus requires counteracting not only particular market nudges,
but also nudge stacking and the marketer’s capacity to respond to government
interventions. We consider two sets of strategies here, one related to control of
content, and the other to control of public spaces. Note that all the strategies we
mention here concern advertising, but similar policies could be devised with
respect to other nudging aspects of market interactions, such as the regulation of
market spaces or pricing.
From the set concerning the control of content, we mention three strategies.
First, consider that some ads nowadays hold no actual content about the
product or service that they are promoting, unlike the traditional (and justified)
conception of ads as informing potential customers. It would not be too
controversial to argue that regulation on providing some minimal content
Economics & Philosophy 23
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should be required, in order to reduce the distraction of the consumer from the
relevant information. Second, we noted in section 3.2.1 that marketers will not
be too keen to reveal their techniques, but regulation might conceivably require
that their methods be disclosed. This would allow consumers to look up market
techniques in areas of decision-making that they deem relevant, in order to more
successfully pursue their values and ends. Third, one common technique in
recent years has been to disguise commercials as news. Since consumers often
fail to spot the difference between news and commercials (e.g. in the form of
‘informercials’), and thus fail to be on the lookout for market nudges,
regulation could require that commercials be clearly marked and
distinguished from news pieces.
The second set of strategies concerns the control of public spaces. Consider the
‘Clean City’law, which was enforced in 2006 in the city of São Paulo in order to
remove all advertisements from public spaces, including buildings, posters,
billboards, buses and taxis; even handing out pamphlets. Such a policy solution
directly responds to market nudge stacking, which is exacerbated by the
extension of public communication channels. It significantly alleviates the extent
to which consumers are exposed to market nudges. Of course, a policy solution
need not go as far as the Clean City law in creating nudge-free public spaces.
We may sometimes find it more appropriate to set up specific advertisement-free
city zones, since our efforts at minimizing the detriments of market nudges should
be counterbalanced with bad side-effects to markets that policies may cause. But we
need not think of the proposal as too radical or ruinous to market efficiency.
Consider that our virtual space can already be purged of advertisements with the
help of software –so-called adblocks –and that web marketers can ask users to opt out.
Some regulations will concern both content and space. A famous field
experiment by Zajonc and Rajecki (1969) shows that the positive attitudes
towards stimuli can be enhanced merely by repeated exposure. This finding
easily explains why marketers put so much importance on public presence and
flood the public space with ads. In response, public officials could introduce
regulations that limit the extent to which a particular company can use public
spaces for advertising.
Finally, we might believe that, sometimes at least, outright bans are justified. For
instance, the European Parliament and European Council (2003) introduced a ban
on all tobacco advertising in print, radio, online and in sports events. Or think of
bans with respect to advertising for children, which are in place in countries such as
Norway. Such strong prohibitions can be justified on autonomy grounds, e.g. when
they target potentially addictive products and services, or when the targeted
audience is particularly vulnerable.
6. Conclusion
The popularity of government nudges in academic and policy circles has sparked
little debate about the moral status of behavioural techniques used by for-profit
market agencies. This academic oversight may be somewhat understandable, but
is nevertheless significant. Our paper is an attempt at righting this wrong. We
show throughout that on the grounds of autonomy-related objections advanced
24 Viktor Ivankovi´c and Bart Engelen
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against government nudging, market nudges turn out to be much more threatening
to autonomy. They trigger heuristics in much the same way as government nudges,
but in addition, they are not constrained by principles of mildness, sensitivity to the
interests of nudgees, and public justifiability, and they flood the market setting as a
result of businesses aiming to keep up with their competition.
The impact of market nudges on our autonomy may not seem like much –we are
so used to having them around. But if we are convinced about the effectiveness of
government nudges, and if we acknowledge the profound effects of advertising, then
these realizations should lend credence to the threatening character of market
nudges. This threat is not overstated, we argued, just because we may learn to
expect attempts at manipulation in the market, or because behavioural
influences are pervasive in all areas of social life. Finally, we showed that a social
environment with fewer market nudges is conceivable and not overly demanding
for policymakers to design. Yet, even when this is not the case, the normative
foundations laid here will, we believe, outlive our current institutional limitations
and guide the future policymaker.
Acknowledgements. The paper is a greatly extended and revised version of the chapter ‘Market Nudges’
from Viktor Ivankovi´c’s doctoral dissertation titled The Liberal Politics of Behavioral Enhancement (Central
European University, 2019). We would like to thank Andrés Moles, Maximilian Kiener, Rebecca Ruehle,
Thomas Douglas, Aleksandar Simi´c and Tvrtko Joli´c for their insightful comments and suggestions on
previous versions, as well as the audiences at ‘Interdisciplinary Perspectives on Decision-Making
Processes International Workshop’(University of Rijeka, June 2021), ‘5th International Economic
Philosophy Conference’(Warsaw, June 2021), and ‘Influenthics seminar’(Université Catholique de Lille,
October 2021).
Conflict of Interest Declaration. The authors declare that they have no conflict of interest.
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Viktor Ivankovi´c is a Postdoctoral Researcher at the Institute of Philosophy, Zagreb (Croatia). He holds a
PhD in Political Theory from Central European University. His main research focuses on the ethics of
nudging, the practice of predictably steering people's behavior through changing their choice
environments, and ethics of influence more broadly. Following up on his doctoral research, he explores
the institutional requirements for nudge permissibility. His other research interests are in bioethics
Economics & Philosophy 27
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and democratic theory. Email: viktor.ivankovic@ifzg.hr. URL: https://www.ifzg.hr/djelatnici/ivankovic-
bibliografija/.
Bart Engelen is an Associate Professor at Tilburg University (The Netherlands) and is affiliated with the
Tilburg Center for Moral Philosophy, Epistemology and Philosophy of Science (TiLPS). His research focuses
on the borders between ethics, political philosophy and economics. His primary research interest is in the
ethical and conceptual issues that arise with respect to nudges: techniques used to steer people’s behavior by
redesigning people’s choice architectures. He has published on how nudging relates to manipulation,
transparency, rationality and autonomy and on the role it can and should play in moral education and
health promotion. URL: https://bartengelen.wixsite.com/website.
Cite this article: Ivankovi´c V and Engelen B. Market nudges and autonomy. Economics & Philosophy.
https://doi.org/10.1017/S0266267122000347
28 Viktor Ivankovi´c and Bart Engelen
https://doi.org/10.1017/S0266267122000347 Published online by Cambridge University Press