Legal Themes Concerning Obesity Regulation in the United States: Theory and Practice

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 Public’s 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. No Data <10% 10%–14% Obesity Epidemic in the U.S. (1985) % population with BMI >=30 (defined as obese) Source: Behavioral Risk Factor Surveillance System, CDC

5. No Data <10% 10%–14% 15%–19% Obesity Epidemic in the U.S. (1994) % population with BMI >=30 (defined as obese) Source: Behavioral Risk Factor Surveillance System, CDC

6. Obesity Epidemic in the U.S. (2004) % population with BMI >= 30 (defined as obese) No Data <10% 10%–14% 15%–19% 20%–24% ≥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 (N=1002)

9. 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): • Health care providers (3/4) • Schools (2/3) • Government (1/3) • Employers (1/4) Source: Harvard Forums on Health National Poll 2003 (N=1002)

10. The Obesity Epidemic and the Role of Law

11. The Obesity Epidemic and the Role of Law (cont’d)

12. 10 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

13. 10 Major Legal Themes in Obesity Regulation (cont’d) • Availability of Consumer Health Information • Control of Advertising • Creation of Communities that Support Healthy Lifestyles • Physical Education/Fitness Requirements • Insurance Coverage Mandates

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 (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)

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 (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

20. 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

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 (cont’d) • 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 (cont’d) • 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 (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

26. 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

27. 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

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 (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 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 Enacted previously Enacted 2006 Introduced/carried over2006 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?

42. 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 www.kfc.com

43. 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 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 (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

46. 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 parentshavefiled a suit against Kellogg’s 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 (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

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