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11
Legal Themes Concerning Legal Themes Concerning Obesity Regulation in the Obesity Regulation in the
United States: United States: Theory and PracticeTheory 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
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
22The Center for Law & the Public’s Health
at Georgetown& Johns Hopkins UniversitiesCDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
Principle ObjectivesPrinciple Objectives
Briefly view the scientific bases for public health Briefly view the scientific bases for public health interventions in the obesity epidemicinterventions in the obesity epidemic
Discuss 10 major legal methods for combating Discuss 10 major legal methods for combating obesity in the United Statesobesity in the United States
Highlight the balance between legal restrictions Highlight the balance between legal restrictions and incentives that promote health and healthy and incentives that promote health and healthy behaviorsbehaviors
Analyze theoretical and practical roles of law as a Analyze theoretical and practical roles of law as a tool to curb obesitytool to curb obesity
Assess the need for the creation of new policies as Assess the need for the creation of new policies as well as the removal of existing obstructionswell as the removal of existing obstructions
33The Center for Law & the Public’s Health
at Georgetown& Johns Hopkins UniversitiesCDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
Scientific Bases for Public Scientific Bases for Public Health InterventionHealth Intervention
According to the US Centers for Disease Control According to the US Centers for Disease Control and Prevention (CDC), approximately and Prevention (CDC), approximately 24%24% of of American adults are obese. American adults are obese.
About About 16%16% of children age 6-19 are obese of children age 6-19 are obese
(a figure that has more than tripled since 1980)(a figure that has more than tripled since 1980) Despite national health objectives to reduce the Despite national health objectives to reduce the
incidence of obesity to incidence of obesity to 15% 15% nationally, the nationally, the incidence of obesity is increasing incidence of obesity is increasing
44The Center for Law & the Public’s Health
at Georgetown& Johns Hopkins UniversitiesCDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
Obesity Epidemic in the U.S. Obesity Epidemic in the U.S. (1985)(1985)
No Data <10% 10%–14%
Source: Behavioral Risk Factor Surveillance System, CDC
% population with BMI >=30 (defined as obese)
55The Center for Law & the Public’s Health
at Georgetown& Johns Hopkins UniversitiesCDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
Obesity Epidemic in the U.S. Obesity Epidemic in the U.S. (1994)(1994)
No Data <10% 10%–14% 15%–19%
Source: Behavioral Risk Factor Surveillance System, CDC
% population with BMI >=30 (defined as obese)
66The Center for Law & the Public’s Health
at Georgetown& Johns Hopkins UniversitiesCDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
Source: Behavioral Risk Factor Surveillance System, CDC
Obesity Epidemic in the U.S. Obesity Epidemic in the U.S. (2004)(2004)
No Data <10% 10%–14% 15%–19% 20%–24% ≥25%
% population with BMI >= 30 (defined as obese)
77The Center for Law & the Public’s Health
at Georgetown& Johns Hopkins UniversitiesCDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
Public View of Obesity in the Public View of Obesity in the U.S.U.S.
Most Americans consider obesity a Most Americans consider obesity a serious problem (comparable to serious problem (comparable to smoking)smoking)
However, Americans are split However, Americans are split between viewing obesity as a private between viewing obesity as a private issue versus a public health concernissue versus a public health concern
Americans are more likely to support Americans are more likely to support efforts aimed at reducing obesity in efforts aimed at reducing obesity in childrenchildrenSource: Harvard Forums on Health National Poll 2003 (N=1002)
88The Center for Law & the Public’s Health
at Georgetown& Johns Hopkins UniversitiesCDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
99The Center for Law & the Public’s Health
at Georgetown& Johns Hopkins UniversitiesCDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
Public View of Obesity in the U.S. Public View of Obesity in the U.S. (cont’d)(cont’d)
A vast majority supports some role A vast majority supports some role for the following (with fraction for the following (with fraction supporting a major role):supporting a major role): Health care providers (3/4)Health care providers (3/4) Schools (2/3)Schools (2/3) Government (1/3)Government (1/3) Employers (1/4)Employers (1/4)
Source: Harvard Forums on Health National Poll 2003 (N=1002)
1010The Center for Law & the Public’s Health
at Georgetown& Johns Hopkins UniversitiesCDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Obesity Epidemic and the The Obesity Epidemic and the Role of LawRole of Law
Compacts
Cases
Policies Regulations
Statutes
Constitutions
Treaties
Types of Laws
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
1111The Center for Law & the Public’s Health
at Georgetown& Johns Hopkins UniversitiesCDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Obesity Epidemic and the The Obesity Epidemic and the Role of Law Role of Law (cont’d)(cont’d)
Community
City
County Tribal
State
National
International
Govern-ment
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
1212The Center for Law & the Public’s Health
at Georgetown& Johns Hopkins UniversitiesCDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
10 Major Legal Themes in 10 Major Legal Themes in Obesity Regulation Obesity Regulation
1.1. Use of Incentives to Encourage Healthier Use of Incentives to Encourage Healthier BehaviorsBehaviors
2.2. Use of Financial Disincentives to Use of Financial Disincentives to Discourage Unhealthy BehaviorsDiscourage Unhealthy Behaviors
3.3. Requirements to Improve Food Quality, Requirements to Improve Food Quality, Diversity, or AvailabilityDiversity, or Availability
4.4. Compensation for Injured Persons Compensation for Injured Persons Seeking RecourseSeeking Recourse
5.5. Restriction of Access to Unhealthy FoodsRestriction of Access to Unhealthy Foods
1313The Center for Law & the Public’s Health
at Georgetown& Johns Hopkins UniversitiesCDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
10 Major Legal Themes in 10 Major Legal Themes in Obesity Regulation Obesity Regulation (cont’d)(cont’d)
6.6. Availability of Consumer Health Availability of Consumer Health InformationInformation
7.7. Control of AdvertisingControl of Advertising
8.8. Creation of Communities that Support Creation of Communities that Support Healthy Lifestyles Healthy Lifestyles
9.9. Physical Education/Fitness Requirements Physical Education/Fitness Requirements
10.10. Insurance Coverage Mandates Insurance Coverage Mandates
1414The Center for Law & the Public’s Health
at Georgetown& Johns Hopkins UniversitiesCDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
1515The Center for Law & the Public’s Health
at Georgetown& Johns Hopkins UniversitiesCDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
1616The Center for Law & the Public’s Health
at Georgetown& Johns Hopkins UniversitiesCDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
1. Use of Incentives to 1. Use of Incentives to Encourage Healthier BehaviorsEncourage Healthier Behaviors
States employ unique, innovative States employ unique, innovative strategies to promote healthier diets and strategies to promote healthier diets and encourage physical activity, including:encourage physical activity, including: The California DHHS’ Local Incentive Awards The California DHHS’ Local Incentive Awards
Program that qualifies local agencies for Program that qualifies local agencies for federal matching funds to develop nutrition federal matching funds to develop nutrition education and physical activity promotion education and physical activity promotion interventions for low-income communitiesinterventions for low-income communities
1717The Center for Law & the Public’s Health
at Georgetown& Johns Hopkins UniversitiesCDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
1. Use of Incentives to 1. Use of Incentives to Encourage Healthier Behavior Encourage Healthier Behavior
(cont’d)(cont’d) Deductions against state Deductions against state
gross income for bicycle gross income for bicycle commuters (proposed by commuters (proposed by New Jersey in its 2004 Bill New Jersey in its 2004 Bill A3441)A3441)
Proposed Lower Monthly Proposed Lower Monthly Medicaid Co-pays for Medicaid Co-pays for Healthier Citizens (states Healthier Citizens (states such as Michigan, Florida, such as Michigan, Florida, Arkansas)Arkansas)
1818The Center for Law & the Public’s Health
at Georgetown& Johns Hopkins UniversitiesCDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
2. Use of Financial 2. Use of Financial Disincentives to Discourage Disincentives to Discourage
Unhealthy BehaviorsUnhealthy Behaviors Taxation (or tax relief) to control Taxation (or tax relief) to control
consumption of non-nutritious foods consumption of non-nutritious foods Restrictions on the use of food stamps to Restrictions on the use of food stamps to purchase non-nutritious foodpurchase non-nutritious food Food is not taxable under the state sales tax in Food is not taxable under the state sales tax in some jurisdictions. However, states may clarify some jurisdictions. However, states may clarify that “junk” food products (e.g., soda, candy, that “junk” food products (e.g., soda, candy, chips) can be taxed. Ind. Code Ann. § 6-2.5-5-20; chips) can be taxed. Ind. Code Ann. § 6-2.5-5-20; Ky. Rev. Stat. Ann. § 139.485Ky. Rev. Stat. Ann. § 139.485
1919The Center for Law & the Public’s Health
at Georgetown& Johns Hopkins UniversitiesCDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
2. Use of Financial Disincentives to 2. Use of Financial Disincentives to Discourage Unhealthy Behaviors Discourage Unhealthy Behaviors
(cont’d)(cont’d)
Theory of Effect of TaxationTheory of Effect of TaxationLimited consumption of tobacco Limited consumption of tobacco productsproducts
Earmarking “non-nutritious” food Earmarking “non-nutritious” food tax money for health campaigns tax money for health campaigns (most states that tax junk food use (most states that tax junk food use revenues generally)revenues generally)
City of Seattle “coffee” taxCity of Seattle “coffee” tax
2020The Center for Law & the Public’s Health
at Georgetown& Johns Hopkins UniversitiesCDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
3. Requirements to Improve 3. Requirements to Improve Food Quality, Diversity, or Food Quality, Diversity, or
AvailabilityAvailability Government’s potential to require Government’s potential to require
improvements in nutrition covers an array of improvements in nutrition covers an array of places where people obtain food, including places where people obtain food, including restaurants, grocery stores, and, notably, restaurants, grocery stores, and, notably, schoolsschools. Examples of the scope of requirements . Examples of the scope of requirements include:include:
Federal regulations to limit additives to foods Federal regulations to limit additives to foods served in fast food environments (and served in fast food environments (and elsewhere) elsewhere)
Threats of potential governmental sanctions Threats of potential governmental sanctions or regulation that result in industry self-or regulation that result in industry self-regulationregulation
2121The Center for Law & the Public’s Health
at Georgetown& Johns Hopkins UniversitiesCDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Role of Schools in Implementing The Role of Schools in Implementing Strategies to Improve Food QualityStrategies to Improve Food Quality
Schools are an area in which government Schools are an area in which government directly implements innovative food directly implements innovative food policies, such as:policies, such as: Farm-to-school programs (Farm-to-school programs (Farm-To-Cafeteria Farm-To-Cafeteria
Projects Act of 2003)Projects Act of 2003) Federal nutrition standards for Federal nutrition standards for
school lunch programs school lunch programs
-US Dept. of Agriculture (USDA)-US Dept. of Agriculture (USDA)
2222The Center for Law & the Public’s Health
at Georgetown& Johns Hopkins UniversitiesCDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
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The Role of Schools in Implementing The Role of Schools in Implementing Strategies to Improve Food Quality Strategies to Improve Food Quality
(cont’d)(cont’d) Some states set stricter nutritional Some states set stricter nutritional
standards for school lunches and standards for school lunches and breakfasts than federal requirements: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.
2323The Center for Law & the Public’s Health
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The Role of Schools The Role of Schools (cont’d)(cont’d)
Assurance of availability and Assurance of availability and accessibility of healthy foodaccessibility of healthy food
-ColoradoColorado: 2006 proposed : 2006 proposed program for free fruits and program for free fruits and vegetables for students in vegetables for students in public schools public schools - - MassachusettsMassachusetts: 2006 bill : 2006 bill promotes healthy food promotes healthy food alternatives in school food alternatives in school food programs as well as programs as well as cooperation with local cooperation with local farmers’ markets farmers’ markets
2424The Center for Law & the Public’s Health
at Georgetown& Johns Hopkins UniversitiesCDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Role of Schools (cont’d)The Role of Schools (cont’d)
In addition, the recent agreement of soda In addition, the recent agreement of soda companies to withdraw sodas from schools companies to withdraw sodas from schools illustrates the benefits of voluntary illustrates the benefits of voluntary regulation by food manufacturersregulation by food manufacturers
Similar industry efforts to seekSimilar industry efforts to seek
mutual agreements may extendmutual agreements may extend
to snack foods placed in schoolto snack foods placed in school
vending machines or other placesvending machines or other places
2525The Center for Law & the Public’s Health
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WHO/PAHO Collaborating Center on Public Health Law and Human Rights
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CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
2626The Center for Law & the Public’s Health
at Georgetown& Johns Hopkins UniversitiesCDC Collaborating Center Promoting Health through Law
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4. Compensation for Injured 4. Compensation for Injured Persons Seeking RecoursePersons Seeking Recourse
Fast food outlets/other entities:Fast food outlets/other entities:Example:Example: Pelman vs. McDonald’s Pelman vs. McDonald’s- - Complaint filed against McDonald’s for Complaint filed against McDonald’s for causing the obesity of two teenagers on the causing the obesity of two teenagers on the basis of:basis of: deceptive practicesdeceptive practices negligence negligence failure to warnfailure to warn - Case was initially dismissed but Case was initially dismissed but
has recently breathed new lifehas recently breathed new life
2727The Center for Law & the Public’s Health
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Compensation for Injured Compensation for Injured Persons Seeking Recourse Persons Seeking Recourse
(cont’d)(cont’d) Food Manufacturers:Food Manufacturers:
Example: Suit filed in 2003 against Kraft Example: Suit filed in 2003 against Kraft Food for health risk posed by trans fat in Food for health risk posed by trans fat in Oreo cookiesOreo cookies
- Lawsuit was dropped and - Lawsuit was dropped and Kraft:Kraft: announced that it would work to announced that it would work to eliminate trans fat contained in eliminate trans fat contained in OreosOreos agreed to stop in-school agreed to stop in-school marketingmarketing
news.bbc.co.uknews.bbc.co.uk
2828The Center for Law & the Public’s Health
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WHO/PAHO Collaborating Center on Public Health Law and Human Rights
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Challenges to Litigation as a Challenges to Litigation as a Tool in Combating Obesity Tool in Combating Obesity
Potential for litigation may be curtailed Potential for litigation may be curtailed Federal Level:Federal Level:
Personal Responsibility in Food Personal Responsibility in Food Consumption ActConsumption Act (a.k.a. “Cheeseburger (a.k.a. “Cheeseburger Bill”) passed House in 2005 - seeks to protect Bill”) passed House in 2005 - seeks to protect food manufacturers and retailers from civil food manufacturers and retailers from civil liability for actions brought by obese liability for actions brought by obese customerscustomers
Commonsense Consumption ActCommonsense Consumption Act introduced in Senate in 2005 - would introduced in Senate in 2005 - would allow allow Congress, State legislatures, and regulatory Congress, State legislatures, and regulatory agencies (but not the courts) to determine agencies (but not the courts) to determine appropriate measures to address obesityappropriate measures to address obesity
2929The Center for Law & the Public’s Health
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Challenges to Litigation as a Challenges to Litigation as a Tool in Combating Obesity Tool in Combating Obesity
(cont’d)(cont’d) State Level:State Level:
More than 20 states have enacted “personal More than 20 states have enacted “personal responsibility” laws that shield fast food responsibility” laws that shield fast food companies from obesity-related tort claimscompanies from obesity-related tort claims--IndianaIndiana: 2006 law immunizes certain food-: 2006 law immunizes certain food-related associations, including advertisers, related associations, including advertisers, from civil liability for claims concerning from civil liability for claims concerning obesity, except in certain cases (e.g., willful obesity, except in certain cases (e.g., willful misbranding)misbranding)--WisconsinWisconsin: 2006 law broadly grants : 2006 law broadly grants civil civil liability exemption for claims resulting from liability exemption for claims resulting from weight gain and obesityweight gain and obesity
3030The Center for Law & the Public’s Health
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State Legislation Limiting Obesity State Legislation Limiting Obesity SuitsSuits
Introduced/carried over 2006Enacted previously Enacted 2006
Source: Health Policy Tracking Service, Thomson West (April 2006)
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5. Restriction of Access to 5. Restriction of Access to Unhealthy FoodsUnhealthy Foods
• Zoning options can lead to Zoning options can lead to improvements in human nutrition improvements in human nutrition through enabling (through enabling (++) and limiting ) and limiting interventions (interventions (--))
3232The Center for Law & the Public’s Health
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Zoning to Create a Healthier Zoning to Create a Healthier Food Market Food Market
ConditionalConditional:: e.g., rezoning of a residential e.g., rezoning of a residential area to only allow the development of area to only allow the development of restaurants that are not fast-food restaurants that are not fast-food restaurantsrestaurants
IncentiveIncentive:: e.g., provision of incentives to e.g., provision of incentives to developers to build a health food store developers to build a health food store
PerformancePerformance:: e.g., requiring a fast food e.g., requiring a fast food restaurant to offer a minimum number of restaurant to offer a minimum number of healthy choices healthy choices
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Predominant Ways that Zoning Predominant Ways that Zoning Laws Can Limit Fast Food Laws Can Limit Fast Food
OutletsOutlets
Bans Restrictions
Fast Food Outlets/Drive-through Service
“Formula” Restaurants
Application to Certain Areas
Quotas
Density of Fast FoodOutlets
Distance from Other Uses
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Zoning Zoning BansBans to Limit Access to Limit Access to Fast Foodto Fast Food
City of Concord, MACity of Concord, MA: Zoning bylaw bans : Zoning bylaw bans fast food and/or drive-through restaurantsfast food and/or drive-through restaurants
City of Calistoga, CACity of Calistoga, CA: bans “formula” : bans “formula” restaurants (e.g., franchise or chain restaurants (e.g., franchise or chain establishments) establishments)
San Francisco, CASan Francisco, CA: prohibits “formula retail : prohibits “formula retail uses” (including fast food outlets) in its uses” (including fast food outlets) in its Hayes-Gough Neighborhood Commercial Hayes-Gough Neighborhood Commercial DistrictDistrict
3535The Center for Law & the Public’s Health
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Zoning Zoning RestrictionsRestrictions to Limit to Limit Access to Fast FoodAccess to Fast Food
Berkeley, CABerkeley, CA: restricts number of fast food : restricts number of fast food restaurants in its Elmwood Commercial restaurants in its Elmwood Commercial DistrictDistrict
Town of Warner, NHTown of Warner, NH: does not allow any fast-: does not allow any fast-food or drive-in restaurant to be located food or drive-in restaurant to be located within 2,000 feet of another fast-food or drive-within 2,000 feet of another fast-food or drive-in restaurantin restaurant
Detroit, MIDetroit, MI: certain fast food restaurants may : certain fast food restaurants may not be built within 500 feet of an elementary, not be built within 500 feet of an elementary, junior high, or senior high schooljunior high, or senior high school
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Constitutionality of Zoning Constitutionality of Zoning LawsLaws
Courts have upheld zoning laws on Courts have upheld zoning laws on the basis of:the basis of: Public health objectivesPublic health objectives
Bellas v. Planning Bd of Bellas v. Planning Bd of Weymouth Weymouth (MA 2002) – (MA 2002) – child safety child safety
Non-public health Non-public health objectivesobjectives
Bess Eaton Donut Flour Bess Eaton Donut Flour Company, Inc. v. Zoning Bd Company, Inc. v. Zoning Bd of Review of Town of of Review of Town of Westerly Westerly (RI 2000)(RI 2000) – – community aestheticscommunity aesthetics
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What is a “Fast Food” Outlet for What is a “Fast Food” Outlet for the Purposes of Zoning the Purposes of Zoning
Restrictions?Restrictions?
3838The Center for Law & the Public’s Health
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3939The Center for Law & the Public’s Health
at Georgetown& Johns Hopkins UniversitiesCDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
4040The Center for Law & the Public’s Health
at Georgetown& Johns Hopkins UniversitiesCDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
4141The Center for Law & the Public’s Health
at Georgetown& Johns Hopkins UniversitiesCDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
4242The Center for Law & the Public’s Health
at Georgetown& Johns Hopkins UniversitiesCDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
5. Restriction of Access to 5. Restriction of Access to Unhealthy Foods (cont’d)Unhealthy Foods (cont’d)
Additional legal efforts may restrict the Additional legal efforts may restrict the public’s access to “unhealthy” foods (public’s access to “unhealthy” foods (e.g.e.g. containing trans fats):containing trans fats): Center for Science in the Public Interest (CSPI) Center for Science in the Public Interest (CSPI)
filed suit against Kentucky Fried Chicken (KFC) filed suit against Kentucky Fried Chicken (KFC) seeking to eliminate (or at least post warnings seeking to eliminate (or at least post warnings of) trans fat in their chicken (2006)of) trans fat in their chicken (2006)
In October, 2006 KFC In October, 2006 KFC
voluntarily chose to change itsvoluntarily chose to change its
cooking oils to reduce trans fatscooking oils to reduce trans fats
www.kfc.comwww.kfc.com
4343The Center for Law & the Public’s Health
at Georgetown& Johns Hopkins UniversitiesCDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
5. Restriction of Access to 5. Restriction of Access to Unhealthy Foods (cont’d)Unhealthy Foods (cont’d)
Governmental regulation:Governmental regulation: Chicago officials have proposed a ban on trans fat Chicago officials have proposed a ban on trans fat
use by restaurants (July 2006)use by restaurants (July 2006) Voluntary regulation:Voluntary regulation:
Tiburon, CA became the first Tiburon, CA became the first trans-fat free citytrans-fat free city when when its restaurants switched to alternative oils (May 2005)its restaurants switched to alternative oils (May 2005)
Wendy’s announced that it would start using non-Wendy’s announced that it would start using non-hydrogenated cooking oil to reduce trans fat content hydrogenated cooking oil to reduce trans fat content in its food (June 2006)in its food (June 2006)
NYC asked its restaurants to voluntarily stop using NYC asked its restaurants to voluntarily stop using trans fats in their food and is considering a ban like trans fats in their food and is considering a ban like that proposed in Chicago (October 2006)that proposed in Chicago (October 2006)
4444The Center for Law & the Public’s Health
at Georgetown& Johns Hopkins UniversitiesCDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
6. Availability of Consumer 6. Availability of Consumer Health InformationHealth Information
Nutrition Labeling and Education Nutrition Labeling and Education Act of 1990 Act of 1990 requires most food to be labeled requires most food to be labeled
with nutrient and ingredient with nutrient and ingredient informationinformation
health claims must abide by set health claims must abide by set standardsstandards
4545The Center for Law & the Public’s Health
at Georgetown& Johns Hopkins UniversitiesCDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
6. Availability of Consumer 6. Availability of Consumer Health Information Health Information (cont’d)(cont’d)
Menu Labeling BillsMenu Labeling Bills Menu Education and Labeling Act (MEAL)Menu Education and Labeling Act (MEAL)
would would require chain restaurants with 20 or require chain restaurants with 20 or more business locations to provide more business locations to provide consumers with information on calories, consumers with information on calories, sodium, fat, and trans fat contentsodium, fat, and trans fat content(First proposed in Congress in 2003, reintroduced 2006)(First proposed in Congress in 2003, reintroduced 2006)
State menu labeling acts:State menu labeling acts: 2006 proposed 2006 proposed acts in states such as New Jersey and Ohio acts in states such as New Jersey and Ohio would require nutrition data posted on would require nutrition data posted on menus in chain restaurants menus in chain restaurants
4646The Center for Law & the Public’s Health
at Georgetown& Johns Hopkins UniversitiesCDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
7. Control of Advertising7. Control of Advertising
Restrictions:Restrictions: FCC Limits on advertising FCC Limits on advertising (including food products) during children’s (including food products) during children’s programmingprogramming
Use of Use of consumer protection lawsconsumer protection laws and and litigation to restrict unhealthy advertising litigation to restrict unhealthy advertising to childrento children
CSPI, Campaign for a Commercial-CSPI, Campaign for a Commercial-Free Childhood (CCFC), and Free Childhood (CCFC), and parentsparents havehave filed a suit against filed a suit against Kellogg’s and Viacom for harming Kellogg’s and Viacom for harming health of children by advertising health of children by advertising junk food (2006)junk food (2006)
4747The Center for Law & the Public’s Health
at Georgetown& Johns Hopkins UniversitiesCDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
8. Creation of Communities 8. Creation of Communities that Support Healthy Lifestylesthat Support Healthy Lifestyles
Legislation to provide funding for Legislation to provide funding for walking and bicycle use/trails walking and bicycle use/trails
Federal Safe Routes to School Federal Safe Routes to School (SR2S) Program(SR2S) Program Florida Greenway and Trails Florida Greenway and Trails Act Act (2005 Fla. Laws, Chap. (2005 Fla. Laws, Chap. #2005-#2005- 87) 87) Hawaii urges state and Hawaii urges state and counties to counties to recognize and recognize and encourage walking encourage walking and and biking as primary means of biking as primary means of
transportationtransportation
4848The Center for Law & the Public’s Health
at Georgetown& Johns Hopkins UniversitiesCDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
8. Creation of Communities 8. Creation of Communities that Support Healthy Lifestyles that Support Healthy Lifestyles
(cont’d)(cont’d) CDC promotes ACE (active CDC promotes ACE (active
community environments) that community environments) that promote walking, biking, and promote walking, biking, and recreation facilities for better healthrecreation facilities for better health
Many communities have Many communities have comprehensive plans for the use of comprehensive plans for the use of urban planning to promote physical urban planning to promote physical activity.activity. Healthy Arkansas InitiativeHealthy Arkansas Initiative: promotes healthy : promotes healthy
behaviors and enables citizens to locate behaviors and enables citizens to locate wellness resources in their communitywellness resources in their community
4949The Center for Law & the Public’s Health
at Georgetown& Johns Hopkins UniversitiesCDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
9. Physical Education/Fitness 9. Physical Education/Fitness RequirementsRequirements SchoolSchool: Illinois is the only state : Illinois is the only state
with daily physical education with daily physical education requirements for students K-12 requirements for students K-12 (2005) (2005)
WorkWork: Arkansas House Resolution : Arkansas House Resolution 1054 (2001) requests that all 1054 (2001) requests that all directors of state agencies design directors of state agencies design and implement physical activity and implement physical activity programs as a part of the work dayprograms as a part of the work day
5050The Center for Law & the Public’s Health
at Georgetown& Johns Hopkins UniversitiesCDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
10. Insurance Coverage 10. Insurance Coverage MandatesMandates
Mandate coverage of weight loss Mandate coverage of weight loss programs/treatments for morbid programs/treatments for morbid obesity by private health insurersobesity by private health insurers
IndianaIndiana: Ind. Code Ann. § : Ind. Code Ann. § 27-8-14.1: Requires the 27-8-14.1: Requires the state to provide coverage state to provide coverage under group insurance under group insurance plans for public employees plans for public employees needing treatment for needing treatment for morbid obesitymorbid obesity
5151The Center for Law & the Public’s Health
at Georgetown& Johns Hopkins UniversitiesCDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
ConclusionsConclusions
Law (in all of its forms) has been and Law (in all of its forms) has been and continues to be a viable tool for obesity continues to be a viable tool for obesity prevention in the United Statesprevention in the United States
Recent efforts have focused on: Recent efforts have focused on: Litigation (lessons learned from tobacco);Litigation (lessons learned from tobacco); Legislation on the state level (state initiatives),Legislation on the state level (state initiatives), Policies aimed at children (in schools or at play); Policies aimed at children (in schools or at play);
andand Self-regulation.Self-regulation.
Central question remains - Central question remains - what is the what is the viability of these legal themes in curbing viability of these legal themes in curbing obesity in the United States?obesity in the United States?
5252The Center for Law & the Public’s Health
at Georgetown& Johns Hopkins UniversitiesCDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
Select ResourcesSelect Resources ““State Actions to Promote Nutrition, Increase Physical Activity State Actions to Promote Nutrition, Increase Physical Activity
and Prevent Obesity: A Legis. Overview” Health Pol. Tracking and Prevent Obesity: A Legis. Overview” Health Pol. Tracking (2006)(2006)
Mello, Studdert, and Brennan. “Obesity – The New Frontier of Mello, Studdert, and Brennan. “Obesity – The New Frontier of Public Health Law” Public Health Law” New England Journal of MedicineNew England Journal of Medicine. June 2006. June 2006
Journal of Public Health PolicyJournal of Public Health Policy: Special Section: “Legal : Special Section: “Legal Approaches to the Obesity Epidemic” Vol. 25 (2004) Numbers Approaches to the Obesity Epidemic” Vol. 25 (2004) Numbers 3-43-4
CSPI “Policy Options to Promote Nutrition and Activity” CSPI “Policy Options to Promote Nutrition and Activity” http://www.cspinet.org/nutritionpolicy/policy_options.htmlhttp://www.cspinet.org/nutritionpolicy/policy_options.html
Center for Law and the Public’s Health Center for Law and the Public’s Health Report:Report: The Use of The Use of Zoning to Restrict Fast Food Outlets Zoning to Restrict Fast Food Outlets www.publichealthlaw.net/Research/Affprojects.htm#Zoninwww.publichealthlaw.net/Research/Affprojects.htm#Zoningg
Thank you!Thank you!