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LEGAL STRATEGIES IN CHILDHOOD OBESITY PREVENTION Workshop Summary Lynn Parker, Matthew Spear, Nicole Ferring Holovach, and Stephen Olson, Rapporteurs Standing Committee on Childhood Obesity Prevention Food and Nutrition Board

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THE NATIONAL ACADEMIES PRESS 500 Fifth Street, N.W. Washington, DC 20001 NOTICE: The project that is the subject of this report was approved by the Govern- ing Board of the National Research Council, whose members are drawn from the councils of the National Academy of Sciences, the National Academy of Engineer- ing, and the Institute of Medicine. The members of the committee responsible for the report were chosen for their special competences and with regard for appropri- ate balance. This study was supported by Grant No. 61747 between the National Academy of Sciences and The Robert Wood Johnson Foundation. Any opinions, findings, conclusions, or recommendations expressed in this publication are those of the author(s) and do not necessarily reflect the view of the organizations or agencies that provided support for this project. International Standard Book Number-13: 978-0-309-21019-5 International Standard Book Number-10: 0-309-21019-4 Additional copies of this report are available from the National Academies Press, 500 Fifth Street, N.W., Lockbox 285, Washington, DC 20055; (800) 624-6242 or (202) 334-3313 (in the Washington metropolitan area); Internet, http://www.nap. edu. For more information about the Institute of Medicine, visit the IOM home page at: www.iom.edu. Copyright 2011 by the National Academy of Sciences. All rights reserved. Printed in the United States of America The serpent has been a symbol of long life, healing, and knowledge among almost all cultures and religions since the beginning of recorded history. The serpent adopted as a logotype by the Institute of Medicine is a relief carving from ancient Greece, now held by the Staatliche Museen in Berlin. Suggested citation: IOM (Institute of Medicine). 2011. Legal Strategies in Child- hood Obesity Prevention: Workshop Summary. Washington, DC: The National Academies Press.

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“Knowing is not enough; we must apply. Willing is not enough; we must do.” — Goethe Advising the Nation. Improving Health.

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The National Academy of Sciences is a private, nonprofit, self-perpetuating society of distinguished scholars engaged in scientific and engineering research, dedicated to the furtherance of science and technology and to their use for the general welfare. Upon the authority of the charter granted to it by the Congress in 1863, the Acad- emy has a mandate that requires it to advise the federal government on scientific and technical matters. Dr. Ralph J. Cicerone is president of the National Academy of Sciences. The National Academy of Engineering was established in 1964, under the charter of the National Academy of Sciences, as a parallel organization of outstanding engineers. It is autonomous in its administration and in the selection of its members, sharing with the National Academy of Sciences the responsibility for advising the federal government. The National Academy of Engineering also sponsors engineer- ing programs aimed at meeting national needs, encourages education and research, and recognizes the superior achievements of engineers. Dr. Charles M. Vest is presi- dent of the National Academy of Engineering. The Institute of Medicine was established in 1970 by the National Academy of Sciences to secure the services of eminent members of appropriate professions in the examination of policy matters pertaining to the health of the public. The Insti- tute acts under the responsibility given to the National Academy of Sciences by its congressional charter to be an adviser to the federal government and, upon its own initiative, to identify issues of medical care, research, and education. Dr. Harvey V. Fineberg is president of the Institute of Medicine. The National Research Council was organized by the National Academy of Sci- ences in 1916 to associate the broad community of science and technology with the Academy’s purposes of furthering knowledge and advising the federal government. Functioning in accordance with general policies determined by the Academy, the Council has become the principal operating agency of both the National Academy of Sciences and the National Academy of Engineering in providing services to the government, the public, and the scientific and engineering communities. The Council is administered jointly by both Academies and the Institute of Medicine. Dr. Ralph J. Cicerone and Dr. Charles M. Vest are chair and vice chair, respectively, of the National Research Council. www.national-academies.org

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PLANNING COMMITTEE FOR A WORKSHOP ON LEGAL STRATEGIES IN CHILDHOOD OBESITY PREVENTION* KELLY BROWNELL (Chair), Professor, Department of Psychology, Professor of Epidemiology and Public Health, and Director, Rudd Center for Food Policy and Obesity, Yale University WILLIAM DIETZ, Director, Division of Nutrition, Physical Activity, and Obesity, Centers for Disease Control and Prevention ROBERT GARCIA, Executive Director, The City Project, Los Angeles MARY STORY, Professor, Division of Epidemiology and Community Health Associate, University of Minnesota School of Public Health STEPHEN TERET, Associate Dean for Faculty and Education and Professor, Johns Hopkins Bloomberg School of Public Health JOSEPH THOMPSON, Director, The Robert Wood Johnson Foundation Center to Prevent Childhood Obesity, and Surgeon General, State of Arkansas Study Staff LYNN PARKER, Scholar NICOLE FERRING HOLOVACH, Research Associate MATTHEW SPEAR, Program Associate ANTON BANDY, Financial Associate GERALDINE KENNEDO, Administrative Assistant LINDA MEYERS, Director, Food and Nutrition Board *Institute of Medicine planning committees are solely responsible for organizing the work- shop, identifying topics, and choosing speakers. The responsibility for the published workshop summary rests with the workshop rapporteurs and the institution. v

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Reviewers This report has been reviewed in draft form by individuals chosen for their diverse perspectives and technical expertise, in accordance with procedures approved by the National Research Council’s Report Review Committee. The purpose of this independent review is to provide candid and critical comments that will assist the institution in making its published report as sound as possible and to ensure that the report meets institutional standards for objectivity, evidence, and responsiveness to the study charge. The review comments and draft manuscript remain confidential to protect the integrity of the process. We wish to thank the following individuals for their review of this report: JESSICA DONZE BLACK, Alliance for a Healthier Generation TRACY FOX, Food, Nutrition & Policy Consultants, L.L.C. RUSSELL PATE, University of South Carolina STEPHEN SUGARMAN, University of California, Berkeley Although the reviewers listed above have provided many construc- tive comments and suggestions, they did not see the final draft of the report before its release. The review of this report was overseen by HUGH TILSON, University of North Carolina, Chapel Hill. Appointed by the Institute of Medicine, he was responsible for making certain that an inde- pendent examination of this report was carried out in accordance with institutional procedures and that all review comments were carefully con- sidered. Responsibility for the final content of this report rests entirely with the workshop rapporteur and the institution. vii

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Contents 1 INTRODUCTION 1 The Potential of Legal Strategies, 2 Organization of This Summary, 4 2 LEGAL APPROACHES IN OTHER AREAS 7 Air Bags in Automobiles, 8 Firearms Injury Prevention, 9 The Connection to Food, 11 3 ACTIONS BY FEDERAL AGENCIES: A FOCUS ON FOODS AND BEVERAGES 13 Initiatives by the Federal Trade Commission, 14 Initiatives by the Food and Drug Administration, 15 Discussion, 18 4 PERSPECTIVES FROM THE FOOD INDUSTRY 21 The Perspective of the Grocery Industry, 22 The Perspective of the Restaurant Industry, 26 Discussion, 29 5 USING REGULATIONS AND TAXES TO PREVENT OBESITY 33 The Use of Regulations to Change Food and Beverage Consumption, 34 The Use of Taxes to Influence Food and Beverage Purchases, 37 Discussion, 39 ix

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x CONTENTS 6 USING THE LAW TO INCREASE PHYSICAL ACTIVITY 41 Legal Approaches to Increase Physical Activity in Communities, 42 Physical Activity as a Civil Rights Issue, 46 Discussion, 49 7 USING LITIGATION TO CHANGE POLICIES AND PRACTICES 51 Legal Strategies for Obesity Prevention, 52 Using Litigation and the Threat of Litigation to Leverage Change, 54 The Disadvantages of Litigation, 56 Discussion, 58 8 OTHER STATE AND LOCAL OBESITY PREVENTION STRATEGIES 61 Actions by Local Public Health Agencies, 62 The Roles of Attorneys General, 65 Child Care and Obesity, 66 Discussion, 68 9 CLOSING REMARKS 71 REFERENCES AND RESOURCES 75 APPENDIXES A Workshop Agenda 79 B Speaker Biosketches 83