Legal

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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 Publics Health
• at Georgetown and Johns Hopkins Universities

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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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Scientific 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

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Obesity Epidemic in the U.S. (1985)
population with BMI gt30 (defined as obese)
Source Behavioral Risk Factor Surveillance
System, CDC
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Obesity Epidemic in the U.S. (1994)
population with BMI gt30 (defined as obese)
Source Behavioral Risk Factor Surveillance
System, CDC
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Obesity 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
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Public 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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Public 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)
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The Obesity Epidemic and the Role of Law
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The Obesity Epidemic and the Role of Law (contd)
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10 Major Legal Themes in Obesity Regulation

1. Use of Incentives to Encourage Healthier
   Behaviors
2. Use of Financial Disincentives to Discourage
   Unhealthy Behaviors
3. Requirements to Improve Food Quality, Diversity,
   or Availability
4. Compensation for Injured Persons Seeking Recourse
5. Restriction of Access to Unhealthy Foods

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10 Major Legal Themes in Obesity Regulation
(contd)

1. Availability of Consumer Health Information
2. Control of Advertising
3. Creation of Communities that Support Healthy
   Lifestyles
4. Physical Education/Fitness Requirements
5. 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 (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)

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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 (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

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3. 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

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The 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)

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The 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.

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The 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

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The 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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4. 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

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Compensation 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
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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 (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

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State Legislation Limiting Obesity Suits
Introduced/carried over 2006
Enacted previously
Enacted 2006

Source Health Policy Tracking Service, Thomson
West (April 2006)
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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 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

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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 2000)
  community aesthetics

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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
(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
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5. 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)

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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
(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

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7. 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)

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8. 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

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8. 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

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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/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!