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Legal

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Title: Legal


1
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

2
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

3
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

4
Obesity Epidemic in the U.S. (1985)
population with BMI gt30 (defined as obese)
Source Behavioral Risk Factor Surveillance
System, CDC
5
Obesity Epidemic in the U.S. (1994)
population with BMI gt30 (defined as obese)
Source Behavioral Risk Factor Surveillance
System, CDC
6
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
7
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)
8
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9
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)
10
The Obesity Epidemic and the Role of Law
11
The Obesity Epidemic and the Role of Law (contd)
12
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

13
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

14
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16
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

17
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)

18
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

19
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

20
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

21
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)

22
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.

23
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


24
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

25
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26
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

27
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
28
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

29
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

30
State Legislation Limiting Obesity Suits
Introduced/carried over 2006
Enacted previously
Enacted 2006

Source Health Policy Tracking Service, Thomson
West (April 2006)
31
5. Restriction of Access to Unhealthy Foods
  • Zoning options can lead to improvements in human
    nutrition through enabling () and limiting
    interventions (-)

32
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

33
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
34
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

35
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

36
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

37
What is a Fast Food Outlet for the Purposes of
Zoning Restrictions?
38
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39
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40
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41
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42
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
43
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)

44
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

45
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

46
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)

47
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

48
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

49
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

50
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

51
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?

52
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!
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