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SPECIAL SECTION
Legal Approaches to the Obesity Epidemic:
An Introduction
BEN KELLEY and JASON A. SMITH
In the spring of 2003, the Public Health Advocacy Institute, whose mis-
sion is to explore law in common cause with public health, held its first
annual conference on “Legal Approaches to the Obesity Epidemic.”
The goal of this groundbreaking conference was to initiate a national
examination of a crucial policy question: How can the law play a role
in counteracting the public health threat presented by the widespread,
increasing incidence of overweight and obesity both in the United
States and globally?
Following this initial conference, the Institute began a series of dis-
cussions focusing on intersections between public-health obesity reduc-
tion objectives and the instruments of law. These examinations have
dealt primarily with the U.S. experiencenot inappropriately, since it
is in food marketing and promotion practices originating in the United
States that the epidemic is rooted. Yet, our examinations have pushed to
bring an international focus to the conversation. As the legal commu-
nity is realizing, the distinction between domestic and international is
becoming conceptually untenable. As we continue to work, the Insti-
tute strives to broaden its discussion of legal approaches to obesity to
become truly global in its approach. The papers in this Special Section
are the product of these ongoing discussions.
The papers in this Special Section have been prepared by practi-
tioners in both public health and law who participate in or are affiliated
with the Institute’s Obesity-Law Task Force. Each paper has under-
gone a review process within and beyond the Task Force, as well as a
vetting by the Institute’s staff. Taken together, they are an accurate
reflection of the work of the Institute in this area. Individually, these
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papers offer issue-by-issue information and insights into key aspects
of obesity and the potential for controlling it through public policy
changes. Each is written to outline broadly different legal approaches
to obesity rather than to detail particular solutions in all their complex-
ity. Collectively, they are a unique handbook of guidance for all those
in law and public health who want to help achieve a permanent rever-
sal of the obesity epidemic using the tools of law. PHAI is pleased to
make these materials available to a wider audience through this Spe-
cial Section of the Journal of Public Health Policy.
Since PHAI’s first annual conference on the Obesity Epidemic, much
has happened to evidence a growing public recognition that the obesity
epidemic cannot be controlled effectively without substantially reshap-
ing national and worldwide policies that create the food environment
and how it contributes to excessive consumption. That environment
one that encourages over-consumption of high-energy, low-nutrition
foods, especially by childrenis determined to an important degree by
marketing, product content, labeling, packaging practices, and eco-
nomic policies employed by the food industry to drive ever-increasing
sales targets or enacted by governments to protect economic interests.
The World Health Organization’s recently-adopted “Global Strategy
on Diet, Physical Activity and Health” (1) reflects this emerging recog-
nition of the problem, especially with regard to children. It calls for
reduction or elimination of food marketing messages that “exploit chil-
dren’s inexperience or credulity” and “encourage unhealthy dietary
practices.” A companion WHO paper, “Marketing Food to Children:
The Global Regulatory Environment,” (2) notes that “a wide range of
regulations have the potential to affect the techniques used to market
food to children, including those that apply to all age groups and all
products. In fact, non child-specific consumer protection laws have been
used as the basis for litigation against several large food companies.”
Making lawlegislation, regulation, and litigation at the local, na-
tional, and international levelcan be a powerful process for shap-
ing health policy in general and the food environment in particular.
In designing obesity control programs, health policy decision-makers
in the United States, both government and private, have been slow to
make use of the law. Meanwhile the food industry has been swift to
oppose legislative and regulatory proposals that would limit its ability
to encourage unhealthy eating habits through marketing and product
design. It has also sought the passage of federal and state laws in the
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United States to foreclose litigation against food companies for the
harm done by their obesity-promoting foods and marketing prac-
tices.
special section
The papers presented in this Special Section address these and other
aspects of the role of law in countering the obesity epidemic. Although
its onset was recent, without concerted work by public health profes-
sionals and legal practitioners, the epidemic will likely be prolonged
and aggravated.
The Obesity Epidemic in the United States surveys the growing body
of knowledge about the nature and growth of the epidemic. It docu-
ments substantial increases in overweight incidence across gender,
economic, and racial-ethnic groupings. The increases it finds for chil-
dren and adolescents are particularly alarming: more and more of
America’s youth are predisposed at early ages to the severe health-
damaging and life-shortening consequences of obesity.
Allison Morrill and Christopher Chinn detail the factors associated
with the epidemic: reduced physical activity, increases in consumption
of energy-dense, low-nutrition foods, and technologies that reduce
agricultural and food processing costs while increasing productivity,
particularly of obesity-promoting added sweeteners, such as high fruc-
tose corn syrup. Their paper examines the food environment’s pervasive
promotion of increased consumption of energy-dense low-nutrition
foods, especially by children. That environment is shaped by extrav-
agant food-industry advertising aimed at young people: by aggressive
in-school product sales via vending machines and event sponsorships;
by tie-ins with toys and games; and by in-school media and “educa-
tional” messages.
US government dietary guidelines contribute to and perpetuate the
environment. Instead of urging that people eat less, particularly high-
energy, low-nutrition foods, the government, echoing food industry
marketing messages, “advises ‘moderation’ and affirms that all foods
have a place in a healthy diet.”
Food Marketing to Children in the Context of a Marketing Mael-
strom documents the huge escalation of marketing to children since
the 1980s and describes the range of techniques that food companies
use to promote consumption and brand loyalty of obesity-promoting
foods: Advertising that undermines parental controls by encouraging
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children to nag parents into making unhealthy food purchases; product
placement in prime-time “family” television programs and movies;
internet “advergaming” websites that focus children’s attention on
product brands by incorporating them into computer games; infil-
trating school educational resources with product-promoting materi-
als; and tie-ins between particular food brands and toys, movies, and
TV characters.
“Given their particular vulnerabilities to marketing, there is a pow-
erful argument to be made that it is in the best interest of children that
companies refrain from marketing to them at all,” concludes author
Susan Linn. Noting that other countries are taking steps toward that
goal, she proposes legal actions that would achieve it in the United
States.
Legislation weighs the prospects for legislative countermeasures to
the obesity epidemic in the United States and finds it discouraging. The
tools are there, but Federal and State legislation has tended to serve
the interests of the food industry. The influence of food production
interests, especially agricultural, has created federally legislated price
supports and subsidies that promote rather than discourage marketing
of obesity-generating foods, which in turn leads to increases in their
consumption. Rachel Weiss discusses congressionally-enacted prohibi-
tions on cigarette advertising as a possible precedent for laws to restrict
food advertising aimed at children but sees little likelihood of this
happening in the near term.
An overview of proposed federal obesity-control laws finds these
are directed at changing personal consumption behavior; they fail to
address the need to change food industry behavior and the food envi-
ronment. In fact, a proposed “Obesity Prevention Act” directs that
funds made available under the Act “shall not be used to disparage
any agricultural commodity, food, or beverage.” Some state legislatures
are showing more initiative by considering proposals to reshape the
nutritional content of school meals, limit the presence of soft-drink
vending machines in schools, and tax snack foods and soft drinks,
but it is too early to assess their impact.
Meanwhile, both federal and state legislatures are under intense
pressure from food industry lobbyists to enact statutes prohibiting
law-suits against food companies and restaurants for obesity-related
claims; a number of states have already passed such laws. Food inter-
ests are mindful of the adverse impact that litigation against the tobacco
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industry has had on cigarette consumption, and of the damaging
internal documents revealed in this litigation that demonstrated the
industry’s unwavering preference for its own profits over the health
of its customers.
Regulating the Environment to Reduce Obesity analyzes a wide and
diverse range of potential regulatory steps to mitigate the obesity epi-
demic, while recognizing the legal and political barriers to achieving
them. Cheryl Lyn Hayne, Patricia Moran, and Mary Ford examine reg-
ulatory approaches to counteract the food environment’s encourage-
ment of unhealthy consumption practices, considering regulation at
both the federal and local level in the United States. At the federal
level they call for Food and Drug Administration action to strengthen
food nutritional and content labeling rules and extend those rules to
restaurants, and for action by the Federal Communications Commis-
sion to “discourage advertising [on radio and television of] foods of
little nutritional value to children and encourage the presentation of
balanced information regarding healthy dietary choices.”
School environments offer additional opportunities for effective local
as well as federal regulatory interventions, the paper notes. Expanded
authority could give new powers to the National School Lunch Pro-
gram to limit high-fat and high-sugar products in schools. Posting
nutritional information for food products sold in schools could be
mandated, and more nutritious choices offered. Better education
both physical and nutritionalcould be encouraged. School boards
could modify or eliminate vending contracts that bring obesity-pro-
moting foods onto campuses.
Extending its regulatory analysis to the built environment, the paper
sees both opportunities and obstacles to mandating local-level
changes that encourage energy-intense activitieswalking, jogging,
biking, and other outdoor fitness opportunitiesalong with reduced
reliance on motor vehicles. Overall, the paper concludes, successful
regulatory initiatives require the understanding and support of stake-
holders as well as the involvement of epidemiologists and statisticians
to assure collection of useful data for future policymaking.
Private Enforcement: Litigation as a Tool to Prevent Obesity looks
at the ways in which litigation against food interests can contribute
to obesity control. The prospect of obesity-related lawsuits has already
generated increased public attention to the obesity epidemic and its
health consequences. Further, some food companies are responding
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with pledges to modify their products and marketing practices in the
interest of obesity reduction.
Meanwhile, food companies are signaling their fear of litigation by
promoting federal and state laws to prohibit it. As authors, Richard A.
Daynard, P. Tim Howard, and Cara Wilking point out, the discovery
process triggered by lawsuits would compel defendant food companies
to disclose internal research and policy documents that might be used
as evidence against themthe kinds of internal documents that helped
persuade juries of tobacco industry wrongdoing.
The paper enumerates several bases for obesity-related lawsuits,
including unfair and deceptive trade practices in states with strong
consumer protection laws; personal injury, in which otherwise avoid-
able harm was caused to individuals by a product’s content, marketing,
or lack of warning; and marketing that has deceived a consumer into
harmful eating practices. Further, the authors address and refute indus-
try claims that obesity-promoting food consumption behaviors are
solely a matter of “personal responsibility.”
Confronting the Epidemic: The Need for Global Solutions recog-
nizes the frightening worldwide impact of the obesity epidemic and calls
on governments, public health workers and the food industry to take
dramatic steps toward reversing it. Authors Neville Rigby, Shiriki
Kumanyika, and W. Philip James of the International Obesity Task
Force stress the urgent need for all stakeholders to pursue the directions
set forth in WHO’s newly adopted “Global Strategy on Diet, Physi-
cal Activity and Health.”
Several developments aggravate the international epidemic and its
health consequences. They focus on globalization of energy-dense U.S.
diets; an increased prevalence of the metabolic syndrome among pop-
ulations in developing countries; and industry and government poli-
cies and programsincluding trade and investment practicesthat
promote obesity-inducing diets. Political will and social controls are
needed to place health priorities above the prevailing economic motives
of global trade.
“Global populations will continue to become progressively heavier
if present consumption forecasts are sustained,” they warn. “Only a
comprehensive and integrated international approach, based on an
effective implementation of the WHO global strategy . . . offers any
real hope of arresting the public health catastrophe unfolding through-
out the world.”
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REFERENCES
1. WHA Resolution WHA57.17Global Strategy on Diet, Physical Activity
and Health [monograph on the Internet]. Geneva: World Health Assembly;
2004 [cited 2004 June 15]. Available from: http://www.who.int/dietphys
icalactivity/goals/en/
2. Hawkes, C. Marketing Food to Children: The Global Regulatory Environ-
ment [monograph on the Internet]. Geneva: World Health Organization;
2004 [cited 2004 June 15]. Available from: http://www.who.int/dietphys
icalactivity/publications/en/
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