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8 Other State and Local Obesity Prevention Strategies Key Presenter Messages • State and local public health agencies can use such measures as menu labeling, land use planning, and the promotion of physi- cal activity to influence obesity-related behaviors. • Agencies may need to have comprehensive strategies in place to take advantage of political opportunities. • Attorneys general can take action to protect the general wel- fare and well-being of the public, and an increasing number are becoming interested in obesity issues. • State and local child care regulations can help prevent obesity in a particularly vulnerable population. A final panel at the workshop examined a variety of legal strategies that states and localities can use to prevent obesity in addition to those discussed in earlier sessions, ranging from menu labeling, to programs for small employers, to child care guidelines. These strategies can be under- taken by a variety of actors—the presenters on this panel were a local pub- lic health agency official, an attorney general, and a child care researcher. Initiatives at the state and local levels need to take advantage of political 61

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62 LEGAL STRATEGIES IN CHILDHOOD OBESITY PREVENTION opportunities, and extended campaigns may be necessary to effect change, the panelists said. ACTIONS BY LOCAL PUBLIC HEALTH AGENCIES Local public health agencies have both the authority and the tools to change the built, social, and food environments, said James Krieger, chief, Chronic Disease and Injury Prevention Section, Seattle-King County Public Health Department. “We are just now beginning to understand the poten- tial of applying these tools in the realm of obesity prevention,” he noted. However, the influence of local public health agencies extends beyond their legal powers. Public health officials have important relationships with many sectors and stakeholders that have influence over the policies and systems that affect obesity rates. They have connections with the executive branch for which they work; the legislative branch, such as county and city councils; and local policy-making bodies, such as planning agencies, school districts, and housing authorities. They can serve as a nexus for bringing these groups together to forge consensus and move policy forward. Public health is currently at a watershed point, Krieger said. It is transitioning to an emphasis on policy systems and environmental change, expanding its activities beyond its past emphasis on health education and direct services. Local public health agencies have expertise in assessments, communications, legislative affairs, and constituent mobilization, and thus can make significant contributions to driving a policy and a legal agenda at the local level. Krieger discussed three specific examples of this new influence: menu labeling, land use planning, and the promotion of physical activity. Menu Labeling In March 2008, King County, which includes Seattle and surrounding areas, became the second jurisdiction in the nation to pass a menu label- ing regulation, following New York City. The county chose menu labeling as an initiative for several reasons: the obesity issue has high visibility; the leadership of the local board of health decided to take a more activist stance on the problem; a political consensus to take action was forming; menu labeling is an easier step to take than many others; and it avoids the “nanny state” criticism, since it simply provides customers with informa- tion they may need to make their own choices. Also, evidence available at the time justified the choice, although the evidence still is not conclusive. Some models indicate that menu labeling may prevent weight gain, and experiments in cafeterias and workplaces have shown that it may change choices and caloric intake. But no studies are currently available to dem-

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63 OTHER STATE AND LOCAL OBESITY PREVENTION STRATEGIES onstrate the effects of menu labeling in chain restaurants (the focus of such labeling) or on weight. A 3-year period of organizing in the community led to a consensus first, that obesity is a problem and second, that consumption of excess calories is the main driver of obesity. From that process emerged a 10-point over- weight prevention initiative, which was adopted by the board of health in October 2005 and included menu labeling and reduction of caloric intake among its planks. A new director arrived at the health department who was supportive of menu labeling, and the county council adopted a board of health resolution supporting policies to promote healthy eating and active living. An ad hoc committee of the board of health was thereby empowered to advise the board to adopt a menu labeling regulation, which was passed in July 2007. Krieger recounted that at this point, the food industry began to take action, working to introduce bills in the state legislature that would explic- itly preempt local jurisdictions from enacting menu labeling. Negotiations under the auspices of the state legislature led to a compromise, which modi- fied some parts of the original regulation but left most of the important parts intact. Industry then dropped its opposition to the amended regula- tion, adopting the position that it was better to cooperate than to further oppose labeling. Krieger noted that a stakeholder working group was able to work out the details of implementation, the rules, and the rulemaking process for the regulation. More recently, the national health care reform movement has created the possibility of preemption from the federal rather than the state level. King County has amended its regulation to conform with the menu label- ing provisions of the Affordable Care Act while awaiting the results of the Food and Drug Administration’s (FDA’s) rulemaking process. Krieger said that public health officials at the state and local levels generally were not aware that negotiations were ongoing within the federal government to reach an agreement with the restaurant industry on menu labeling. He noted that as time has passed, these officials have come to see the benefits of having a federal law because it covers a large number of jurisdictions, many of which would be unable to pass such a bill locally. The federal law also has extended the scope of labeling to include food in vending machines and self-service items. At the same time, however, it has limited labeling in other ways—for example, by not requiring notification of sodium, carbo- hydrate, or saturated fat levels. According to Krieger, the lesson learned is that advocates at all levels—local, state, and federal—must agree early on as to the desired outcomes of any kind of negotiation. According to an evaluation of menu labeling after the King County regulation went into effect, the percentage of people who were aware of calorie information rose from 13 to 49 percent. For nutritional informa-

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64 LEGAL STRATEGIES IN CHILDHOOD OBESITY PREVENTION tion not added to menus, such as saturated fats and carbohydrates, there was little change in awareness. King County is now evaluating the impact of menu labeling on caloric intake. According to Krieger, a big change is not expected. The primary group expected to be affected is those most concerned about calories—those who are overweight or have diabetes or other weight-related health problems. Land Use Planning Land use planning as a means of improving public health has a long history. In the early 1900s, attention focused on water and sanitary con- ditions and prevention of communicable diseases. Today, land use plan- ning also encompasses promoting physical activity and good nutrition by improving the environment (see also Chapter 6). Local public health departments do not have regulatory authority over land use. Their objective is therefore to partner with other branches of government to instigate change. For example, they can issue guidelines that other agencies can use when establishing regulations. In Washington State, a state-level growth management act requires multicounty units to set guidelines for planning policies, after which each county develops countywide guidelines. These guidelines ultimately influ- ence the comprehensive plans that lay out the zoning and other regulations that affect land use at the city and county levels. In King County, which comprises 39 cities, the public health depart- ment has been working to effect the incorporation of health-related ele- ments into the plans of individual communities. For example, the board of health recently passed a resolution recommending the inclusion of specific “healthy community” elements in community plans. It also has obtained a federal grant to work with local jurisdictions to incorporate model elements into the plans by supporting local planning staff. Examples might include a robust local farm-to-table chain; long-term preservation of farmland; and measures to ensure adequate numbers of retail food outlets, particularly in low-income neighborhoods. Planning and land use design can also provide such opportunities by, for example, locating facilities within walkable dis- tances; creating parks, sidewalks, and bike trails; and ensuring that transit can be reached by walking or biking. The county provides technical assistance from the health department and from private contractors for the drafting of these elements. By 2014, said Krieger, the objective is for most communities in King County to have incorporated health-related elements into their comprehensive planning process.

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65 OTHER STATE AND LOCAL OBESITY PREVENTION STRATEGIES Physical Activity A board of health guideline in King County is that everyone should have access to safe and convenient opportunities for physical activity and exercise, Krieger explained. As noted above, planning and land use design can help provide such opportunities. In this process, a variety of questions arise: What will be the impact of an action? How much will it cost? What externalities might occur? How feasible is it? Is it acceptable to move for- ward before the evidence is clear? The actual choice of policy is often determined by a political window of opportunity, Krieger noted. The right people and forces line up and make it possible to move. When these opportunities occur, it is important to have a comprehensive political strategy for taking advantage of them. The right language needs to be used, stakeholders need to be engaged, communities need to be mobilized, experts need to be involved, and all these elements need to be integrated into a campaign that will result in success. Emerging priorities in King County include improving school nutrition and physical education, improving child care nutrition and physical activ- ity, and promoting health at small-employer worksites. The county will be working to increase access to healthier foods by supporting urban farmers, particularly in low-income communities; by promoting healthy food in retail outlets through food financing initiatives; by using government pro- curement policies to buy healthier foods; and by reducing the consumption of sugar-sweetened beverages. The county also will be increasing opportuni- ties for physical activity through local planning, joint-use agreements, and increased access to recreational activities in low-income communities (see Chapter 6). THE ROLES OF ATTORNEYS GENERAL Attorneys general wear two hats, said William Sorrell, attorney gen- eral for Vermont. They represent the government in court, but they also represent the general welfare and well-being. From both perspectives, the prevention of obesity falls squarely within their purview. During his tenure as attorney general, Sorrell has convened several year-long initiatives that have brought stakeholders together to agree on recommendations for legislative and policy changes. One such initiative was on end-of-care life; another was on lead in the environment. The most recent initiative has been on obesity prevention. A meeting in February 2010 brought together nearly 100 stakeholders, “everyone from organic farmers to the beverage association to the retail grocers to the health department,” said Sorrell. Subcommittees on child and family nutritional issues, the built environment, and the retail environment met during the spring and summer

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66 LEGAL STRATEGIES IN CHILDHOOD OBESITY PREVENTION to arrive at recommendations. The initiative’s final report was scheduled to be issued a few weeks after the workshop. Issuing such a report should be seen as part of a political campaign, said Sorrell. The media should be encouraged to attend the release of the report, with subsequent outreach to the public. The timing of elections and other political events also should be considered for a report to gain maximum traction. Many attorneys general are becoming interested in obesity issues, Sorrell noted. A conference of western attorneys general held in Santa Fe in 2010 included a panel on obesity issues. The First Lady’s interest in the subject has helped make the issue a priority. And with 14 to 18 new attor- neys general coming into office in the 2010 election cycle, it is a good time to promote the issue at the state level. The Vermont report will contain proposals on beverage taxes, school lunch programs, the Supplemental Nutrition Assistance Program, and low- interest loans to small retailers to make healthier foods available. “I am hoping Vermont’s 640,000 people can lead the nation in effectively trying to deal with this huge public health problem,” said Sorrell. CHILD CARE AND OBESITY Approximately two-thirds of children under the age of 6 in the United States spend some time in child care. About half of these children are in large, formal centers, while the other half spend time in a variety of home-based settings, such as care by a nanny, family member, friend, or neighbor. Research on the relationship between child care attendance and obesity has yielded mixed results, said Sara Benjamin Neelon, assistant professor, Department of Community and Family Medicine and Duke Global Health Institute, Duke University. One or two studies have found that child care attendance may have a slightly protective effect against obesity, particularly for certain groups of children (Lumeng et al., 2005). On the other hand, a number of other studies have found that child care may contribute to the development of obesity, particularly for infants (Kim and Peterson, 2008; Maher et al., 2008; Benjamin et al., 2009; Pearce et al., 2010). Despite this conflicting evidence, Benjamin Neelon noted that children in child care tend to have somewhat poor diets; in particular, they often do not eat enough fruits, vegetables, or fiber. Children in child care also could be more physi- cally active. Regulation of child care is the responsibility of each individual state and the District of Columbia, Puerto Rico, the Virgin Islands, and the Department of Defense. Cities and other municipalities also have the ability to regulate child care facilities within their jurisdiction. Most states regulate a number of different types of child care facilities, but they typically divide those facilities

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67 OTHER STATE AND LOCAL OBESITY PREVENTION STRATEGIES into child care centers—the larger facilities with more stringent rules—and family child care homes, which are also licensed but tend to be less formal and have fewer regulations. According to the most recent data, 29 states visit their child care centers at least once annually to see whether they are adhering to state regulations, 16 visit their centers every 2 years, and 6 do so every 3 or more years. For family child care homes, intervals between visits range from 6 months to 10 years. Benjamin Neelon presented six issues for states to consider in setting child care regulations designed to prevent obesity: • Identify best practices—States often ask about the evidence to sup- port establishment of a regulation. Should children receive 60 min- utes, 90 minutes, or 120 minutes of physical activity per day? What is the best practice? “Evidence is often very limited,” Benjamin Neelon noted. • Understand avenues for regulatory change—In some states, regula- tory change comes from the legislature. In others, it comes through a body empowered by the legislature or through some other mechanism. • Estimate and acknowledge costs associated with regulatory change— If a state tells its child care facilities that they must serve whole fruits or vegetables instead of juice, what are the economic costs associated with that new requirement? Who pays these additional costs? • Support the implementation of new regulations—It is not enough simply to establish a regulation. States must provide support for its implementation. They must explain why compliance is important, how the regulation will affect children’s health, and what tools are available to help with compliance. • Assess compliance—Without assessing compliance, it is difficult to tell whether a regulation is being implemented and whether it is being implemented as planned. • Evaluate regulatory changes—States should put systems in place to assess whether regulatory changes affect the health of children. Do new regulations achieve their intended outcome? New York City recently enacted healthy eating and physical activity regulations that were more stringent than those for New York State through article 47 of the New York City Health Code. All child care facilities must provide 60 minutes of physical activity a day, half of which must be struc- tured or teacher-led. Children cannot watch television in child care for more than 60 minutes a day, and what they watch is restricted to educational pro- grams and programs designed to increase physical activity. Sugar-sweetened beverages and juice must be limited. Low-fat milk must be served to children

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68 LEGAL STRATEGIES IN CHILDHOOD OBESITY PREVENTION over 2 years of age. And parents receive nutrition information and cannot send junk food to child care with their children. In Delaware, the state changed its Child and Adult Care Food Program (CACFP) standards. CACFP is a federal reimbursement program for eligible foods and beverages served to children in child care facilities. Even though it is a federal program, states can enact more stringent standards, which is what Delaware did, applying them to all facilities in the state. Delaware had the assistance of a large nonprofit, the Nemours Foundation, in making these changes. The partnership with Nemours resulted in a toolkit to help child care providers comply with the new regulations. Under these regulations, children over age 2 must receive low-fat milk, servings of grains must contain no more than 6 grams of sugar, one whole grain must be served daily, juice must be limited to one serving a day for toddlers and preschoolers (with no juice allowed for infants), and sugar-sweetened beverages are not allowed. Benjamin Neelon emphasized that a strong evaluation component is neces- sary to understand the effectiveness of such new standards and regulations. Benjamin Neelon explained the actions of New York City and Delaware creating additional regulations by noting that, except for the standards cover- ing federally funded programs such as CACFP and Head Start, there are no national standards for nutrition and physical activity for young children. She pointed out that the publication Caring for Our Children: National Health and Safety Performance Standards (National Resource Center for Health and Safety in Child Care and Early Education, 2002) is the gold standard for child care providers and often is used as the basis for state child care regulations. Until a set of recent revisions, however, the standards related to obesity in the publication were fairly weak. Benjamin Neelon convened a group of experts to develop a list of poten- tial eating and physical activity regulations that can be used as models for states. She then compared these model regulations with existing regulations and issued a report card to each state, along with the Virgin Islands, the Department of Defense, Puerto Rico, and Washington, DC. No state received an A, 8 received a B, 43 a C, 2 a D, and 1 an F because it deferred regulations to cities and municipalities (although it has since adopted state regulations). The greatest need, said Benjamin Neelon, is for evidence-based standards to help states that want to enhance their regulations. “I receive probably one phone call a week from states interested in changing their state regulations,” she noted, “so it is happening with or without our guidance.” DISCUSSION During the discussion period, Krieger was asked by Patricia Crawford of the Standing Committee on Childhood Obesity Prevention how local governments choose among the wide range of options for obesity preven-

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69 OTHER STATE AND LOCAL OBESITY PREVENTION STRATEGIES tion. He responded that actions often are based on politics rather than evidence. Is a legislative or executive branch champion ready to take on an issue? What do community partners think of the priorities? Are they willing to organize and mobilize around an issue? Does the current media climate contribute to progress? It also is influential when an organization such as the Institute of Medicine cites a particular action as important, he said, because that provides expert judgment to cite as justification for the action. Robert Garcia asked Sorrell what attorneys general can do to enforce physical education regulations in individual states. Sorrell replied that one step is to get the issue on the agenda at national meetings of attorneys gen- eral. He also suggested emphasizing the child protection or public health aspects of physical education. Attorneys general do not move in lockstep, he noted, and each works within a unique combination of political pres- sures and legal authority. In response to a question about the siloing of funds for different pub- lic health concerns, Sorrell noted that competition can exist among pub- lic health groups. Groups that receive funding do not want to give up that funding when priorities change. Organizing groups around a broad umbrella issue can reduce competition. Joseph Thompson, member of the Standing Committee on Childhood Obesity Prevention and moderator of the session, pointed out that combating obesity requires a multisector approach in which many organizations and individuals are involved. Russell Pate asked about the “price sensitivity issue” in child care. Benjamin Neelon pointed out that child care facilities operate on a shoe- string budget. If a facility can no longer serve fruit juice and must instead serve whole fruits and vegetables, there can be a substantial financial impact, including driving the facility out of business. Thompson pointed out that the contractual process also can be a legal option to help prevent obesity. For example, government officials can require that healthy food be available at every meeting. Thompson referred to these issues of procurement as a “lever” that can be used to contribute to a healthy environment.

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