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1 Introduction Key Presenter Messages • Increasing levels of obesity among children threaten to increase future disease rates among adults. • The involvement of legal authorities can greatly accelerate change in obesity-related policies and practices. • A wide range of change agents can pursue legal approaches to obesity prevention. Since 1980, childhood obesity rates have more than tripled in the United States. Recent data show that almost one-third of children over 2 years of age are already overweight or obese (Ogden et al., 2010). While the prevalence of childhood obesity appears to have plateaued in recent years, the magnitude of the problem remains unsustainably high and rep- resents an enormous public health concern. All options for addressing the childhood obesity epidemic must therefore be explored. In the United States, legal approaches have successfully reduced other threats to public health, such as the lack of passive restraints in automobiles and the use of tobacco. The question then arises of whether laws, regulations, and litiga- tion can likewise be used to change practices and policies that contribute to obesity. 1
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2 LEGAL STRATEGIES IN CHILDHOOD OBESITY PREVENTION This question was the subject of a workshop held on October 21, 2010, in Washington, DC. Hosted by the Institute of Medicine’s (IOM’s) Food and Nutrition Board, the workshop was overseen by the Standing Commit- tee on Childhood Obesity Prevention, which was formed in 2007 to stay abreast of new developments in the field, decide what topics in the field need additional focus, and recommend workshops and consensus studies to address those topics. In keeping with its mandate to cast a wide net for solutions to the obesity problem, the committee decided that an examina- tion of legal strategies was warranted.1 More than 100 people attended the workshop, which also was webcast for those who could not attend in person. Speakers examined: • current legal strategies at the national, state, and local levels and their outcomes; • other public health initiatives that have used legal strategies to elicit changes in society and industry; • the challenges involved in implementing such initiatives; • circumstances in which legal strategies are needed and effective; and • opportunities for coordinating existing and future legal strategies and sharing information on successes. Legal terms used by speakers in these presentations are defined in Box 1-1. THE POTENTIAL OF LEGAL STRATEGIES Obese children and adolescents are at increased risk for a variety of adverse health outcomes and far more likely to become obese adults, observed Kelly Brownell, director, Rudd Center for Food Policy and Obesity, Yale University, in his opening remarks at the workshop. As a result, they will be more likely as adults to struggle with cardiovascular disease, diabetes, or other health challenges. Rising obesity rates have already contributed sig- nificantly to the growth in health care costs; according to a recent estimate, 1 The members of the planning committee for the workshop included Kelly Brownell of Yale University, William Dietz of the Centers for Disease Control and Prevention, Robert Garcia of The City Project in Los Angeles, Mary Story of the University of Minnesota, Stephen Teret of the Johns Hopkins Bloomberg School of Public Health, and Joseph Thompson of the Robert Wood Johnson Center to Prevent Childhood Obesity. The planning committee’s role was limited to planning the workshop and did not include the preparation of this summary; this summary was prepared by a rapporteur, in collaboration with IOM staff, as a factual account of the presentations and discussions that took place at the workshop. Lynn Parker, Nicole Ferring Holovach, and Matthew Spear from the IOM were instrumental in organizing and running the workshop.
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3 INTRODUCTION BOX 1-1 Legal Terms Used in This Report Class action. A lawsuit brought on behalf of a group of people with a common interest. Commercial speech. The exact boundaries are ill defined, but the U.S. Supreme Court has described commercial speech as speech that proposes a lawful com- mercial transaction and as expression related solely to the economic interests of the speaker and its audience. Excise tax. A duty or impost levied upon the manufacture, sale, or consumption of commodities. Expressive conduct. Conduct with a communicative element. Immaterial. Not relevant and important to a particular case. Injunction. A court order requiring an individual to do or to stop doing something. Lawsuit. A court proceeding, generally civil rather than criminal, intended to resolve a dispute between the parties to the proceeding. Legislation. Law enacted by Congress, a state legislature, or a local legislative body. Litigation. A lawsuit brought in court. Material. Relevant and important to a particular case. Police power. The authority conferred upon the states by the Tenth Amendment to the U.S. Constitution, which the states can delegate to local authorities, to enact measures to preserve and protect the safety, health, welfare, and morals of the community. Preemption. Refers to the ability of a higher level of government to prohibit cer- tain actions by a lower level of government. The U.S. Constitution’s Supremacy Clause explains that federal law is the supreme law of the land, which means that federal legislation or regulation can preempt state or local law. Likewise, state-level legislation or regulation can preempt local laws. Public forum. Places, such as streets and parks, that by tradition or government fiat have been devoted to assembly and debate for use by the public. Regulations. Rules and administrative codes issued by government agencies that have the full force and effect of law. annual direct health care costs in the United States total $168 billion (Cawley and Meyerhoefer, 2010). Although legal approaches alone will be insufficient to stem the child- hood obesity epidemic, such approaches hold promise for greatly accelerating progress, said Brownell. He cited two examples.
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4 LEGAL STRATEGIES IN CHILDHOOD OBESITY PREVENTION In the Smart Choices program, a group of people from within and out- side the food industry established criteria for certain nutrients in foods. Any food that met those criteria could use the Smart Choices symbol on its prod- uct packaging. However, foods that met the criteria included Cookie Crisp cereal, Froot Loops cereal, and Hellmann’s mayonnaise, which evoked what Brownell called “an interesting response.” A critical article on September 4, 2009, in The New York Times questioned the criteria and asked whether the food industry had set such lax standards that foods most people would not consider healthy could use the label. On October 14, the Connecticut attor- ney general launched an investigation into whether the Smart Choices pro- gram was misleading and deceptive to Connecticut residents. Other attorneys general were said to be poised to follow Connecticut’s example. On October 20, the commissioner of the Food and Drug Administration held a conference call in which she expressed concern over the Smart Choices program, and that call received considerable attention. On October 23 the program was shut down, just 7 weeks after the critical article in the Times appeared. “Could any amount of science have created that rapid a change?” asked Brownell. He suggested that the science was helpful in the action taken, but the science alone would not have produced this outcome. It was the involvement of legal and regulatory officials that yielded this rapid result. Another example involves the Cocoa and Rice Krispies cereal line, whose labels announced during the 2009 H1N1 influenza pandemic that it “now helps support your child’s immunity.” After San Francisco city attorneys pursued Kellogg’s for its labeling, with accompanying protests from various nongovernmental organizations and public health officials, the company changed its labeling. According to Brownell, these two examples demonstrate that the involvement of legal authorities creates the potential for rapid change on prominent policy issues. To tap this potential, it is important to identify the change agents who can both pursue and respond to a legal strategy, whether regulatory officials, public health officials, elected leaders, or oth- ers. Partnerships formed to pursue legal strategies can be critical as well. ORGANIZATION OF THIS SUMMARY This summary presents the main observations and conclusions of the workshop speakers; it also describes the discussions engendered by the presentations. All of the observations and conclusions described in this summary, some of which are highlighted in boxes at the beginning of each chapter, are those of the workshop participants and should not be inter- preted as positions of the IOM. Following this introductory chapter, Chapter 2 examines the successes legal approaches have had in two other areas: passive restraints in auto-
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5 INTRODUCTION mobiles and firearm safety. Chapter 3 describes actions to prevent obesity taken by two government agencies—the Federal Trade Commission and the Food and Drug Administration—while Chapter 4 offers a complemen- tary discussion of industry perspectives on obesity prevention. Chapter 5 explores the possible use of regulations and taxes to change food consump- tion patterns, and Chapter 6 looks at how the law can be used to increase physical activity. Chapter 7 addresses litigation and its role in changing the practices and policies of organizations in the private and public sec- tors. Chapter 8 describes other steps that state and local officials can take to combat the obesity epidemic. Finally, Chapter 9 briefly recaps the main themes of the workshop. It should be noted that the workshop was intended to explore the boundaries of potential legal approaches to address childhood obesity, not to arrive at recommendations for the use of such approaches. Some of the ideas discussed at the workshop may be workable; some may not. The aim was to be as creative as possible in examining the obesity-related practices of the food and food service industries, food marketers, the media, govern- ments at all levels, and consumers. As the chair of the Standing Committee has written elsewhere (Kumanyika, 2007), the problem of childhood obesity is as inescapable as our image in a mirror. These issues affect everyone, whether overweight or not. The trajectory and reach of the childhood obesity epidemic reflect changes in the society in which we live, and solving the problem will require similarly pervasive societal changes. Legal strategies are one approach, but they must be complemented by a wide range of other carefully considered interventions.
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