Title: Legal
1Legal Themes Concerning Obesity Regulation in the
United States Theory and Practice
- James G. Hodge, Jr., J.D., LL.M.
- Associate Professor, Johns Hopkins Bloomberg
School of Public Health Executive Director, - Center for Law the Publics Health
- at Georgetown and Johns Hopkins Universities
2Principle Objectives
- Briefly view the scientific bases for public
health interventions in the obesity epidemic - Discuss 10 major legal methods for combating
obesity in the United States - Highlight the balance between legal restrictions
and incentives that promote health and healthy
behaviors - Analyze theoretical and practical roles of law as
a tool to curb obesity - Assess the need for the creation of new policies
as well as the removal of existing obstructions
3Scientific Bases for Public Health Intervention
- According to the US Centers for Disease Control
and Prevention (CDC), approximately 24 of
American adults are obese. - About 16 of children age 6-19 are obese
- (a figure that has more than tripled since 1980)
- Despite national health objectives to reduce the
incidence of obesity to 15 nationally, the
incidence of obesity is increasing
4Obesity Epidemic in the U.S. (1985)
population with BMI gt30 (defined as obese)
Source Behavioral Risk Factor Surveillance
System, CDC
5Obesity Epidemic in the U.S. (1994)
population with BMI gt30 (defined as obese)
Source Behavioral Risk Factor Surveillance
System, CDC
6Obesity Epidemic in the U.S. (2004)
population with BMI gt 30 (defined as obese)
No Data lt10 1014
1519 2024 25
Source Behavioral Risk Factor Surveillance
System, CDC
7Public View of Obesity in the U.S.
- Most Americans consider obesity a serious problem
(comparable to smoking) - However, Americans are split between viewing
obesity as a private issue versus a public health
concern - Americans are more likely to support efforts
aimed at reducing obesity in children
Source Harvard Forums on Health National Poll
2003 (N1002)
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9Public View of Obesity in the U.S. (contd)
- A vast majority supports some role for the
following (with fraction supporting a major
role) - Health care providers (3/4)
- Schools (2/3)
- Government (1/3)
- Employers (1/4)
Source Harvard Forums on Health National Poll
2003 (N1002)
10The Obesity Epidemic and the Role of Law
11The Obesity Epidemic and the Role of Law (contd)
1210 Major Legal Themes in Obesity Regulation
- Use of Incentives to Encourage Healthier
Behaviors - Use of Financial Disincentives to Discourage
Unhealthy Behaviors - Requirements to Improve Food Quality, Diversity,
or Availability - Compensation for Injured Persons Seeking Recourse
- Restriction of Access to Unhealthy Foods
1310 Major Legal Themes in Obesity Regulation
(contd)
- Availability of Consumer Health Information
- Control of Advertising
- Creation of Communities that Support Healthy
Lifestyles - Physical Education/Fitness Requirements
- Insurance Coverage Mandates
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161. Use of Incentives to Encourage Healthier
Behaviors
- States employ unique, innovative strategies to
promote healthier diets and encourage physical
activity, including - The California DHHS Local Incentive Awards
Program that qualifies local agencies for federal
matching funds to develop nutrition education and
physical activity promotion interventions for
low-income communities
171. Use of Incentives to Encourage Healthier
Behavior (contd)
- Deductions against state gross income for
bicycle commuters (proposed by New Jersey in its
2004 Bill A3441) - Proposed Lower Monthly Medicaid Co-pays for
Healthier Citizens (states such as Michigan,
Florida, Arkansas)
182. Use of Financial Disincentives to Discourage
Unhealthy Behaviors
- Taxation (or tax relief) to control consumption
of non-nutritious foods
- Restrictions on the use of food stamps to
purchase non-nutritious food - Food is not taxable under the state sales tax in
some jurisdictions. However, states may clarify
that junk food products (e.g., soda, candy,
chips) can be taxed. Ind. Code Ann. 6-2.5-5-20
Ky. Rev. Stat. Ann. 139.485
192. Use of Financial Disincentives to Discourage
Unhealthy Behaviors (contd)
- Theory of Effect of Taxation
- Limited consumption of tobacco products
- Earmarking non-nutritious food tax money for
health campaigns - (most states that tax junk food use revenues
generally) - City of Seattle coffee tax
203. Requirements to Improve Food Quality,
Diversity, or Availability
- Governments potential to require improvements in
nutrition covers an array of places where people
obtain food, including restaurants, grocery
stores, and, notably, schools. Examples of the
scope of requirements include - Federal regulations to limit additives to foods
served in fast food environments (and elsewhere) - Threats of potential governmental sanctions or
regulation that result in industry self-regulation
21The Role of Schools in Implementing Strategies to
Improve Food Quality
- Schools are an area in which government directly
implements innovative food policies, such as - Farm-to-school programs (Farm-To-Cafeteria
- Projects Act of 2003)
- Federal nutrition standards for
- school lunch programs
- -US Dept. of Agriculture (USDA)
22The Role of Schools in Implementing Strategies to
Improve Food Quality (contd)
- Some states set stricter nutritional standards
for school lunches and breakfasts than federal
requirements - Texas Agriculture Commissioner developed the
Texas Public School Nutrition Policy to promote
a healthier environment in schools (2004) - Schools may not serve food items containing more
than 28 grams of fat per serving size more than
twice per week - Schools should eliminate frying as a method of
on-site preparation.
23The Role of Schools (contd)
- Assurance of availability and accessibility of
healthy food
- Colorado 2006 proposed program for free fruits
and vegetables for students in public schools - - Massachusetts 2006 bill promotes healthy food
alternatives in school food programs as well as
cooperation with local farmers markets
24The Role of Schools (contd)
- In addition, the recent agreement of soda
companies to withdraw sodas from schools
illustrates the benefits of voluntary regulation
by food manufacturers - Similar industry efforts to seek
- mutual agreements may extend
- to snack foods placed in school
- vending machines or other places
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264. Compensation for Injured Persons Seeking
Recourse
- Fast food outlets/other entities
- Example Pelman vs. McDonalds
- - Complaint filed against McDonalds for causing
the obesity of two teenagers on the basis of - deceptive practices
- negligence
- failure to warn
- Case was initially dismissed but
- has recently breathed new life
27Compensation for Injured Persons Seeking Recourse
(contd)
- Food Manufacturers
- Example Suit filed in 2003 against Kraft Food
for health risk posed by trans fat in Oreo
cookies -
- - Lawsuit was dropped and Kraft
- announced that it would work to eliminate trans
fat contained in Oreos - agreed to stop in-school marketing
news.bbc.co.uk
28Challenges to Litigation as a Tool in Combating
Obesity
- Potential for litigation may be curtailed
- Federal Level
- Personal Responsibility in Food Consumption Act
(a.k.a. Cheeseburger Bill) passed House in 2005
- seeks to protect food manufacturers and
retailers from civil liability for actions
brought by obese customers - Commonsense Consumption Act introduced in Senate
in 2005 - would allow Congress, State
legislatures, and regulatory agencies (but not
the courts) to determine appropriate measures to
address obesity
29Challenges to Litigation as a Tool in Combating
Obesity (contd)
- State Level
- More than 20 states have enacted personal
responsibility laws that shield fast food
companies from obesity-related tort claims - -Indiana 2006 law immunizes certain
food-related associations, including advertisers,
from civil liability for claims concerning
obesity, except in certain cases (e.g., willful
misbranding) - -Wisconsin 2006 law broadly grants civil
liability exemption for claims resulting from
weight gain and obesity
30State Legislation Limiting Obesity Suits
Introduced/carried over 2006
Enacted previously
Enacted 2006
Source Health Policy Tracking Service, Thomson
West (April 2006)
315. Restriction of Access to Unhealthy Foods
- Zoning options can lead to improvements in human
nutrition through enabling () and limiting
interventions (-)
32Zoning to Create a Healthier Food Market
- Conditional e.g., rezoning of a residential area
to only allow the development of restaurants that
are not fast-food restaurants - Incentive e.g., provision of incentives to
developers to build a health food store - Performance e.g., requiring a fast food
restaurant to offer a minimum number of healthy
choices
33Predominant Ways that Zoning Laws Can Limit Fast
Food Outlets
Bans
Restrictions
Fast Food Outlets/ Drive-through Service
Quotas
Formula Restaurants
Density of Fast Food Outlets
Application to Certain Areas
Distance from Other Uses
34Zoning Bans to Limit Access to Fast Food
- City of Concord, MA Zoning bylaw bans fast food
and/or drive-through restaurants - City of Calistoga, CA bans formula restaurants
(e.g., franchise or chain establishments) - San Francisco, CA prohibits formula retail
uses (including fast food outlets) in its
Hayes-Gough Neighborhood Commercial District
35Zoning Restrictions to Limit Access to Fast Food
- Berkeley, CA restricts number of fast food
restaurants in its Elmwood Commercial District - Town of Warner, NH does not allow any fast-food
or drive-in restaurant to be located within 2,000
feet of another fast-food or drive-in restaurant - Detroit, MI certain fast food restaurants may
not be built within 500 feet of an elementary,
junior high, or senior high school
36Constitutionality of Zoning Laws
- Courts have upheld zoning laws on the basis of
- Public health objectives
- Bellas v. Planning Bd of Weymouth (MA 2002)
child safety - Non-public health objectives
- Bess Eaton Donut Flour Company, Inc. v. Zoning Bd
of Review of Town of Westerly (RI 2000)
community aesthetics
37What is a Fast Food Outlet for the Purposes of
Zoning Restrictions?
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425. Restriction of Access to Unhealthy Foods
(contd)
- Additional legal efforts may restrict the
publics access to unhealthy foods (e.g.
containing trans fats) - Center for Science in the Public Interest (CSPI)
filed suit against Kentucky Fried Chicken (KFC)
seeking to eliminate (or at least post warnings
of) trans fat in their chicken (2006) - In October, 2006 KFC
- voluntarily chose to change its
- cooking oils to reduce trans fats
www.kfc.com
435. Restriction of Access to Unhealthy Foods
(contd)
- Governmental regulation
- Chicago officials have proposed a ban on trans
fat use by restaurants (July 2006) - Voluntary regulation
- Tiburon, CA became the first trans-fat free city
when its restaurants switched to alternative oils
(May 2005) - Wendys announced that it would start using
non-hydrogenated cooking oil to reduce trans fat
content in its food (June 2006) - NYC asked its restaurants to voluntarily stop
using trans fats in their food and is considering
a ban like that proposed in Chicago (October
2006)
446. Availability of Consumer Health Information
- Nutrition Labeling and Education Act of 1990
- requires most food to be labeled with nutrient
and ingredient information - health claims must abide by set standards
456. Availability of Consumer Health Information
(contd)
- Menu Labeling Bills
- Menu Education and Labeling Act (MEAL) would
require chain restaurants with 20 or more
business locations to provide consumers with
information on calories, sodium, fat, and trans
fat content - (First proposed in Congress in 2003,
reintroduced 2006) - State menu labeling acts 2006 proposed acts in
states such as New Jersey and Ohio would require
nutrition data posted on menus in chain
restaurants
467. Control of Advertising
- Restrictions FCC Limits on advertising
(including food products) during childrens
programming - Use of consumer protection laws and litigation to
restrict unhealthy advertising to children
- CSPI, Campaign for a Commercial-Free Childhood
(CCFC), and parents have filed a suit against
Kelloggs and Viacom for harming health of
children by advertising junk food (2006)
478. Creation of Communities that Support Healthy
Lifestyles
- Legislation to provide funding for walking and
bicycle use/trails
- Federal Safe Routes to School (SR2S) Program
- Florida Greenway and Trails Act (2005 Fla.
Laws, Chap. 2005- 87) - Hawaii urges state and counties to recognize
and encourage walking and biking as primary
means of transportation
488. Creation of Communities that Support Healthy
Lifestyles (contd)
- CDC promotes ACE (active community environments)
that promote walking, biking, and recreation
facilities for better health - Many communities have comprehensive plans for the
use of urban planning to promote physical
activity. - Healthy Arkansas Initiative promotes healthy
behaviors and enables citizens to locate wellness
resources in their community
499. Physical Education/Fitness Requirements
- School Illinois is the only state with daily
physical education requirements for students K-12
(2005) - Work Arkansas House Resolution 1054 (2001)
requests that all directors of state agencies
design and implement physical activity programs
as a part of the work day
5010. Insurance Coverage Mandates
- Mandate coverage of weight loss
programs/treatments for morbid obesity by private
health insurers
- Indiana Ind. Code Ann. 27-8-14.1 Requires the
state to provide coverage under group insurance
plans for public employees needing treatment for
morbid obesity
51Conclusions
- Law (in all of its forms) has been and continues
to be a viable tool for obesity prevention in the
United States - Recent efforts have focused on
- Litigation (lessons learned from tobacco)
- Legislation on the state level (state
initiatives), - Policies aimed at children (in schools or at
play) and - Self-regulation.
- Central question remains - what is the viability
of these legal themes in curbing obesity in the
United States?
52Select Resources
- State Actions to Promote Nutrition, Increase
Physical Activity and Prevent Obesity A Legis.
Overview Health Pol. Tracking (2006) - Mello, Studdert, and Brennan. Obesity The New
Frontier of Public Health Law New England
Journal of Medicine. June 2006 - Journal of Public Health Policy Special Section
Legal Approaches to the Obesity Epidemic Vol.
25 (2004) Numbers 3-4 - CSPI Policy Options to Promote Nutrition and
Activity http//www.cspinet.org/nutritionpolicy/p
olicy_options.html - Center for Law and the Publics Health Report
The Use of Zoning to Restrict Fast Food Outlets
www.publichealthlaw.net/Research/Affprojects.htmZ
oning - Thank you!