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2 Legal Approaches in Other Areas Key Presenter Messages • The combined use of legislation, regulation, and litigation was necessary to force the inclusion of air bags in automobiles. • A “life span of the gun” perspective has been useful in improv- ing firearms injury prevention, with legislation, regulation, and litigation focusing on the manufacture, design, marketing, sale, possession, and use of guns. • Unlike automobiles and firearms, food is essential to life, but legislation, regulation, and litigation still can be applied to the manufacture, marketing, sale, and consumption of food to help prevent childhood obesity. As noted in Chapter 1, legal approaches have reduced the incidence and severity of injury and disease in areas other than childhood obesity prevention. Stephen Teret, professor and associate dean, Department of Health and Policy Management, Johns Hopkins Bloomberg School of Pub- lic Health, and director, Center for Law and the Public’s Health, reviewed experiences in two of these areas: the use of air bags in automobiles and prevention of gun violence. Although food is a quite different commodity 7

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8 LEGAL STRATEGIES IN CHILDHOOD OBESITY PREVENTION from either cars or guns, the progress and obstacles in these other areas offer important lessons for obesity prevention. AIR BAGS IN AUTOMOBILES Motor vehicle crashes cause more than 33,000 deaths and hundreds of thousands of injuries in the United States each year, noted Teret. They are the most common cause of death for Americans aged 4 to 34 and are the third leading cause of years of life lost prematurely, behind cancer and heart disease (NHTSA, 2008). A major change in recent decades that has reduced the number of automobile-related deaths and injuries is the use of seatbelts and the pres- ence of air bags in cars. Federal legislation created the agency that would become known as the National Highway Traffic Safety Administration, and federal regulation then required the installation of seatbelts in cars. But establishing this requirement was not enough. For years after seatbelts were installed in cars, the percentage of drivers and passengers who used them hovered around 10 or 15 percent, said Teret. The question then became how to employ the law to make people use their seatbelts. Eventually, the states began to pass laws that mandated the use of seat- belts. The percentage of people using seatbelts rose, but still not enough to prevent many injuries. Furthermore, in crashes involving severe decelera- tion, seatbelts did not provide enough protection to prevent all injuries. A campaign to install air bags in cars was therefore initiated, but not without controversy. Regulations for the installation of air bags were pro- mulgated by the National Highway Traffic Safety Administration but were subsequently revoked because of the politics of the time. The courts became involved in addressing the legal propriety of rescinding the regulations, and in a landmark case in 1983, the U.S. Supreme Court ruled that the regula- tions requiring automatic restraints, which include air bags, were valid. Even after that ruling, it often was impossible to buy a car equipped with air bags. Advocates therefore turned to litigation in state courts. The first such case brought in the United States involved a woman who had been rendered a quadriplegic in an automobile crash. The lawsuit stated that the defendant in the case, Ford Motor Company, should be held liable for not offering an air bag as an option in her car. The first patent for an air bag had been issued in 1953, but the automobile companies were not using this life-saving technology. The lawsuit stated that if cars had been offered with air bags, either as standard equipment or as an option, perhaps this injured woman and many thousands of others would not have suffered severe and disabling injuries. Ten days into the trial, Ford Motor Company settled the case through a payment of $1.8 million. The trial generated a great deal of press coverage,

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9 LEGAL APPROACHES IN OTHER AREAS which led to many similar lawsuits against the automobile companies for failing to offer air bags in cars. In 1985, when Ford Motor Company filed required papers with the Securities and Exchange Commission, it said that for that year, it had more than $1 billion in pending litigation claims related to air bags. This was also the year that Ford decided to offer air bags as an option in its cars, Teret said. It was thus a combination of regulation and litigation that led to enhanced automobile safety. Automobiles are an important and necessary product in our society, Teret observed, and the same can be said of food. Although automobiles are not as necessary as food, they are important enough that it was desirable to change their design to protect the public’s health. Those who use the law to improve public health sometimes encounter roadblocks. After the initial air bag cases were decided, the U.S. Supreme Court ruled that personal injury lawsuits against car makers for failure to install air bags could no longer be successfully brought because they are preempted by existing federal regulations. Preemption is an important consideration in the use of the law to protect public health, Teret noted. For example, Congress can preempt states or localities from legislating in particular areas, or federal laws or regulations can preempt product liability litigation. FIREARMS INJURY PREVENTION Deaths caused by firearms in the United States have distinct epide- miological characteristics, said Teret. Certain people, places, products, and circumstances are at higher risk for gun violence. How can the law be used to reduce the tremendous human suffering from gun violence? Legal approaches generally can be divided into legislation, regulation, and litigation, each of which occurs at three different levels—federal, state, and local. Products such as guns can be seen as having a life span. They are designed and manufactured, marketed and sold, and ultimately used. The question then becomes which combination of legal approaches at which level yields the greatest payoff at different stages of a product’s life, whether the product is a gun, an automobile, or food. With guns, safety messages often focus on their use. People are trained to be careful with them and to use them safely. They are told to store guns in places where they cannot be easily accessed, although many people do not observe these precautions. Another option is to put a legal focus on an earlier stage in the life of a gun. For example, some people are legally prohibited from purchasing guns, and gun sales are subject to various restrictions. Legal approaches also can focus on the marketing of guns. Teret recalled being involved in a petition before the Federal Trade Commission regarding the advertising of guns in

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10 LEGAL STRATEGIES IN CHILDHOOD OBESITY PREVENTION magazines, including Ladies’ Home Journal. One advertisement showed a picture of a little girl lying in bed with her Raggedy Ann doll. The room was dark, and a window revealed that it was nighttime. The caption suggested that those wishing to protect their family should acquire a semiautomatic pistol and keep it in the home. Yet epidemiological data clearly showed that having a gun in the home was more perilous than protective for those living in the home. According to Teret, “We thought that this was unfair and deceptive advertising.” After the petition was filed, the gun industry decided to stop using such advertisements An even more effective approach, Teret said, may be to look at the design and manufacturing of a product. If guns were designed with safe- guards that have existed for more than a century—such as trigger locks, indicators that a bullet is in the chamber, or magazine disconnect devices that disable the gun when a bullet clip is removed—fewer deaths from fire- arms would occur in the United States each year. Teret suggested that focusing legal and regulatory efforts at the early rather than later stages of the life of a gun would likely be more effec- tive in reducing the incidence of gun violence. This point is illustrated in Figure 2-1. High Effect Low Design and Market Sell Use or manufacture Consume Life Span of a Product FIGURE 2-1 Graphical representation of the suggested effectiveness of the law throughout the life span of a product that may be harmful to health. SOURCE: Adapted from Teret, 2010.

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11 LEGAL APPROACHES IN OTHER AREAS THE CONNECTION TO FOOD The history of legal actions in the areas of automobile and gun safety suggests many potential ways to intervene in the childhood obesity epi- demic, Teret said. For example, a life span perspective could be a useful way of conceptualizing legal approaches to food. Laws or regulations could be applied to the consumption of food, as with limits on restaurant portion sizes (although this type of measure would admittedly be controversial). Or legal approaches could focus on the sale of food, as with regulations affect- ing the food sold in schools. The sale of some food products to minors in places other than schools also could be regulated, or the sale of food could be influenced through taxes, as with the taxation of sugar-sweetened bever- ages or calorie-dense foods Legal approaches that affect marketing focus on an even earlier stage of the life span of food and would likely be more effective in reducing obesity. Teret suggested that legislation, regulations, and litigation at the federal, state, and local levels need to do a better job of controlling the market- ing of foods so that unfair or deceptive claims about certain foods being healthy are disallowed. The law also can intervene to provide information to consumers that will help them make reasonable choices. Marketing to children raises special considerations. Commercial free speech (discussed in Chapter 5) is valued in the United States, but Teret identified marketing to children as a rich area for exploration with respect to legal intervention in the childhood obesity epidemic. Legal approaches can even be applied to food at the design and manu- facturing stage, said Teret. Perhaps these approaches could influence the caloric density of foods or their potentially addictive qualities, especially for children. Teret suggested that opportunities to use legislation, regulation, and litigation to address childhood obesity are underexplored.

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