Transcript Legal Themes Concerning Obesity Regulation in the United

The Center for Law & the Public’s Health
at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
Legal 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 Public’s Health
at Georgetown and Johns Hopkins Universities
1
Principle 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
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CDC Collaborating Center Promoting Health through Law
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2
Scientific Bases for Public Health
Intervention
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

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
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Obesity Epidemic in the U.S. (1985)
% population with BMI >=30 (defined as obese)
No Data
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<10%
10%–14%
Source: Behavioral Risk Factor Surveillance System, CDC
4
Obesity Epidemic in the U.S. (1994)
% population with BMI >=30 (defined as obese)
No Data
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<10%
10%–14%
15%–19%
Source: Behavioral Risk Factor Surveillance System, CDC 5
Obesity Epidemic in the U.S. (2004)
% population with BMI >= 30 (defined as obese)
No Data
<10%
10%–14%
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15%–19%
20%–24%
≥25%
Source: Behavioral Risk Factor Surveillance System, CDC
6
Public View of Obesity in the U.S.
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
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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 (N=1002)
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CDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
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The Center for Law & the Public’s Health
at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
8
Public View of Obesity in the U.S.

(cont’d)
A vast majority supports some role for the
following (with fraction supporting a major
role):
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

Health care providers (3/4)
Schools (2/3)
Government (1/3)
Employers (1/4)
Source: Harvard Forums on Health National Poll 2003 (N=1002)
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at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
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The Obesity Epidemic and the
Role of Law
Treaties
Compacts
Constitutions
Types of
Laws
Cases
Policies
Statutes
Regulations
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The Obesity Epidemic and the
Role of Law (cont’d)
International
National
Community
Government
City
County
State
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11
10 Major Legal Themes in
Obesity Regulation
1.
2.
3.
4.
5.
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
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10 Major Legal Themes in
Obesity Regulation (cont’d)
6.
7.
8.
9.
10.
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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1. 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
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1. Use of Incentives to Encourage
Healthier Behavior (cont’d)
 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)
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2. 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

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2. Use of Financial Disincentives to
Discourage Unhealthy Behaviors (cont’d)
 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
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3. Requirements to Improve Food
Quality, Diversity, or Availability

Government’s 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
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The Role of Schools in Implementing
Strategies to Improve Food Quality
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Schools are an area in which government
directly implements innovative food policies,
such as:
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
Farm-to-school programs (Farm-To-Cafeteria
Projects Act of 2003)
Federal nutrition standards for
school lunch programs
-US Dept. of Agriculture (USDA)
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The Role of Schools in Implementing
Strategies to Improve Food Quality (cont’d)

Some states set stricter nutritional standards for
school lunches and breakfasts than federal
requirements:
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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 onsite preparation.
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The Role of Schools (cont’d)

Assurance of availability and accessibility of
healthy food
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-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
23
The Role of Schools (cont’d)


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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4. Compensation for Injured
Persons Seeking Recourse

Fast food outlets/other entities:
Example: Pelman vs. McDonald’s
- Complaint filed against McDonald’s 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
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Compensation for Injured
Persons Seeking Recourse (cont’d)

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
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Challenges 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
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Challenges to Litigation as a Tool in
Combating Obesity (cont’d)

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 foodrelated 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
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State Legislation Limiting Obesity Suits
Enacted previously
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Enacted 2006
Introduced/carried over 2006
Source: Health Policy Tracking Service,
Thomson West (April 2006)
30
5. Restriction of Access to
Unhealthy Foods
•
Zoning options can lead to
improvements in human nutrition
through enabling (+) and limiting
interventions (-)
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Zoning 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
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Predominant 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
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Zoning 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
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Zoning 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 fastfood 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
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Constitutionality 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
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What is a “Fast Food” Outlet for the
Purposes of Zoning Restrictions?
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5. Restriction of Access to
Unhealthy Foods (cont’d)

Additional legal efforts may restrict the public’s
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
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www.kfc.com
42
5. Restriction of Access to
Unhealthy Foods (cont’d)

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)
Wendy’s announced that it would start using nonhydrogenated 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)
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6. 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

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6. Availability of Consumer Health
Information (cont’d)

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
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7. Control of Advertising


Restrictions: FCC Limits on advertising (including
food products) during children’s 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 Kellogg’s and
Viacom for harming health of children
by advertising junk food (2006)
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8. Creation of Communities that
Support Healthy Lifestyles

Legislation to provide funding for walking
and bicycle use/trails
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 Federal Safe Routes to School
(SR2S) Program
 Florida Greenway and Trails Act
(2005 Fla. Laws, Chap. #200587)
 Hawaii urges state and counties to
recognize and encourage walking
and biking as primary means of
transportation
47
8. Creation of Communities that
Support Healthy Lifestyles (cont’d)


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
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9. 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
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10. 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
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Conclusions


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?
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Select 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/policy_options.html
Center for Law and the Public’s Health Report: The Use of Zoning
to Restrict Fast Food Outlets
www.publichealthlaw.net/Research/Affprojects.htm#Zoning

Thank you!
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