Legal Political and Social Issues of Overweight and Obesity - Overweight, Obesity, And The Law
food schools cheese dairy
According to the National Conference of State Legislatures, a bipartisan organization that provides research and technical assistance to the legislators and staffs of the states, commonwealths, and territories, obesity is one of the top ten issues for state legislatures. The Conference predicted that nutrition standards for foods served in schools will continue to dominate policies to prevent obesity. Taking action to prevent and reduce overweight and obesity in the United States is challenging for legislators and policymakers because initiatives to combat obesity involve a wide range of interests, including business, school budgets, taxes, public health agencies and organizations, and government infrastructure. Further, measures to prohibit or discourage purchases of unhealthy products and encourage healthy diets and exercise have been opposed by a wide range of opinion leaders in disciplines ranging from science to philosophy, including those who advocate personal choice and responsibility.
Despite these challenges and opposition from such various stakeholders as the fast-food and restaurant industries, many states are taking action by commissioning research to determine the extent of obesity within the states. They are considering legislative initiatives, including sharp restrictions on the placement of vending machines on school campuses and the items sold in them, revising nutritional standards of school meals, creating walking and biking trails, and expanding the scope and availability of health-education courses.
The National Conference of State Legislatures reported that during the 2003 legislative session fourteen states—California, Connecticut, Hawaii, Illinois, Kentucky, Maine, Massachusetts, Michigan, Missouri, New York, Tennessee, Texas, Vermont, and Washington—introduced legislation to examine or adjust the nutritional content of school meals. At least fifteen states—Arkansas, California, Connecticut, Hawaii, Illinois, Kentucky, Maine, Massachusetts, Mississippi, Missouri, North Carolina, New York, Ohio, Oklahoma, and Texas—considered legislation to establish, examine, or adjust existing physical education requirements in an effort to reduce obesity and establish healthy lifestyle habits early in life.
In 2003 fifteen states already taxed all food items, while twenty-five states exempted food products except for prepared foods. Twenty-three states explored measures to limit sales of, and access in schools to, soft drinks and foods with minimal nutritional value. Legislators in at least four states—Arkansas, Georgia, Nebraska, and New York—introduced legislation that would tax snack food items, while three additional states—Rhode Island, Tennessee, and Washington—considered adjusting the tax on all food items. Eleven states—Arkansas, Idaho, Indiana, Maine, Montana, Nebraska, New Mexico, North Carolina, Oklahoma, Vermont, and West Virginia—also considered taxing soft drinks. California, Maine, New York, and Texas sought to enact legislation requiring fast-food or restaurant chains to display nutritional information to enable consumers to make informed food choices, and Massachusetts considered requiring restaurants to offer at least one healthy selection on their children's menus.
The restaurant and food-processing industries have championed such countervailing measures as the Idaho Commonsense Consumption Act, a bill the Idaho legislature will consider during 2004, which would ban civil lawsuits for obesity and obesity-related health problems. Versions of this type of legislation were under consideration by many states during the first quarter of 2004 following the U.S. House Judiciary Committee support for a bill, sponsored by Florida Republican Representative Ric Keller, that is the companion to Kentucky Republican Senator Mitch McConnell's national Commonsense Consumption Act.
Schools also fear loss of funding if proposed anti-obesity measures are enacted. For example, Illinois high schools, some of which collect nearly $200,000 per year from soft drink companies, worry they will lose some of that extra money under Governor Rod Blagojevich's proposal to ban soft drinks and junk food from all Illinois public schools. In "Schools Fear Loss of Revenue if Soda, Junk Food Removed" (State Journal-Register Online [Springfield, Ill.], January 30, 2004), Ginny Skalski reported that most Illinois high schools and middle schools have at least one vending machine that generates revenue ranging from $500 to several thousand dollars a year. In February 2003 legislators in Maine introduced bills that would ban sales of soda and junk food in schools, require calorie labeling on chain restaurant menus, and promote walking, biking, and other forms of exercise. Public health advocates, including CSPI, declared the legislation the nation's first comprehensive antiobesity effort and a model that should be replicated in other states and in Congress.
During 2003 state lawmakers filed more than 150 bills aimed at obesity, double the seventy-two filed the preceding year, and many state-level actions to combat obesity in children and adolescents were initiated. New York City signed an agreement with Snapple to sell only water and fruit juices in school vending machines. California restricts soda sales in elementary schools and limits them in middle schools, and Arkansas and Texas have both enacted restrictions at elementary schools. In January 2004 the Philadelphia school district decided to stop selling soda in vending machines and cafeterias. The Tennessee Metro school board banned the sale of soft drinks and any foods of limited nutritional value in elementary schools, and Republican senator Tim Burchett introduced legislation, Senate Bill 2414, to entirely remove vending machines from Tennessee schools.
Legislation Protects Food Industry Interests
Food manufacturers, suppliers, and vendors also made some significant strides to protect their interests. On June 23, 2003, John H. Downs Jr., senior vice-president of Public Affairs for Coca-Cola Enterprises, one of the leading sponsors of the National Parent Teacher Association (PTA), joined the board of directors of the national PTA. On December 9, 2003, the Senate approved the $60 million Improved Nutrition and Physical Activity Act, (IMPACT) a bill supported by the International Dairy Foods Association (IDFA is an advocacy organization for three constituent organizations: the Milk Industry Foundation, National Cheese Institute, and International Ice Cream Association) that would fund community-based efforts to combat obesity through increased physical activity and nutrition education. On January 7, 2004, IDFA representatives met with HHS Secretary Thompson to discuss how dairy foods could be part of the solution to the American obesity epidemic. During the meeting IDFA promoted research that suggests a link between dairy consumption and reduced body weight, and previewed the IDFA Healthy Weight with Dairy promotional campaign that hinges on the premise that "eating dairy foods like milk, cheese and yogurt may aid in weight loss when combined with exercise and a reduced-calorie diet." Although Americans have increased their cheese consumption, they are drinking less milk, and in 2000 consumed only about three-quarters of the USDA recommendation of 2.2 servings per day. (See Table 8.4.) According to the IDFA, the campaign promoting dairy products as beneficial for weight loss represents "a major opportunity to increase dairy sales and to leverage this exciting and powerful information on weight loss as quickly and effectively as possible."
Another bill that received strong support from the food industry was legislation that would prohibit people from holding food-sellers and manufacturers responsible for their weight gain, thereby protecting food manufacturers and restaurants from future obesity lawsuits. On January 28, 2004, the House Judiciary Committee unanimously passed the bill, which would still permit lawsuits against food purveyors if consumers are injured when consuming
|Per capita annual averages|
|Item||1970–79||1980–89||1990–99||2000||Change, 1970–74 to 2000||2000 food supply Pyramid-based servings per capita per day1|
|Half and half||4.7||5.3||6.0||6.9||47||—|
|Total cheese (excluding cream cheese)3||18.6||24.3||27.4||30.0||61||.62|
|Cheese other than cottage types3,4||13.7||20.2||24.6||27.3||99||.61|
|Frozen dairy products5||27.8||27.4||28.8||27.8||0||.12|
|Low-fat ice cream||7.6||7.2||7.5||7.3||−4||.03|
|Condensed and evaporated milks||9.4||7.5||7.3||5.8||−38||.04|
|Number of daily servings1|
|Total dairy group supply1||1.62||1.56||1.53||1.61||−1||1.61|
|The Food Guide Pyramid bulletin suggests three servings—the equivalent of three 8-ounce glasses of milk per day—for teenagers, young adults up to 24, and pregnant and lactating women. Two daily servings of dairy foods are recommended for children and most other adults. In this study, average servings were compared with a daily recommended intake of 2.2 servings. This target was based on a weighted average of recommended servings for different age groups of the U.S. population (excluding the higher needs of pregnant and lactating women.)|
|Notes: na = not available|
|—= less than 0.005. Totals may not add due to rounding.|
|1Adjusted for spoilage, plate waste, and other losses. One cup of mild or yogurt, 1-½ ounces of natural cheese, 2 ounces of processed cheese, 2 cups of cottage cheese, 1 ½- cups of ice cream, ½ cup of canned evaporated milk, or ¼ cup of dry milk or buttermilk counts as 1 serving. Only the milk portion of half and half and eggnog are included in daily dairy servings; the cream portion is included in added fats.|
|2Aggregate data, unadjusted for spoilage, plate waste, and other losses.|
|3Cream cheese is counted in added fats.|
|4Excludes full-skim American, cottage, pot and baker's cheese.|
|5Includes items not shown separately, such as mellorine (from 1970–90).|
|SOURCE: Judy Putnam, Jane Allshouse, and Linda Scott Kantor, "Table 7. Americans Are Drinking Less Milk and Eating More Cheese," in U.S. Per Capita Food Supply Trends: More Calories, Refined Carbohydrates, and Fats, Food and Rural Economics Division, Economic Research Service, U.S. Department of Agriculture (USDA), Washington, DC, 2002 [Online] http://www.ers.usda.gov/publications/FoodReview/dec2002/ [accessed February 3, 2004]|
food, or for inaccurate marketing claims. The bill was drafted in response to a spate of lawsuits targeting fast-food restaurants. The first class-action suit was the widely publicized case of Caesar Barber, a fifty-six-year-old New Yorker weighing 270 pounds who claimed that four fast-food restaurants—McDonald's, Burger King, Wendy's, and KFC—jeopardized his health by promoting high-calorie, high-fat, and salty menu items. In "Whopper of a Lawsuit: Fast-Food Chains Blamed for Obesity, Illnesses" (ABCNews.com, July 26, 2003), Geraldine Sealey reported that Barber filed the lawsuit in the New York State Supreme Court "on behalf of an unspecified number of other obese and ill New Yorkers who also feast on fast food." According to Sealey, Barber's suit alleged that the fast-food restaurants, where he ate "four or five times a week even after suffering a heart attack, did not properly disclose the ingredients of their food and the risks of eating too much."
Prior to Barber's suit, there were at least three previous, narrower lawsuits alleging negligent or misleading practices in the fast-food industry. In 2003 McDonald's settled a $12 million lawsuit and apologized for engaging in deceptive advertising. The company conceded that it failed to adequately disclose additives and processing methods that made its food less healthful, and wrongly described its French fries, which are cooked using beef-flavored soybean oil, as vegetarian. A similar lawsuit was filed against Pizza Hut for allegedly using beef fat as an ingredient in its Veggie Lovers' Pizza. Another 2002 class-action lawsuit alleged that the makers of the corn and rice puff snack food "Pirates' Booty" fraudulently misrepresented the food's fat content, under-reporting it by more than 340 percent.
Although legislation banning lawsuits that blame fast-food purveyors for obesity may be enacted, lawsuits alleging deceptive advertising practices and overly aggressive marketing to children may still be found to have merit. Many attorneys and public health professionals endorse such lawsuits because they can serve as vehicles by which to reverse the obesity epidemic, in part because the media attention generated by such lawsuits motivates food companies to produce healthier products and to reconsider marketing and advertising practices. In 2003 Coca-Cola withdrew from exclusive vending-machine contracts in schools, and acquired Odwalla, an organic fruit-juice company, to enable the company to offer healthy beverages. Kraft announced intentions to eliminate in-school marketing to children, introduce smaller portions, and develop more nutritious products. Applebee's International began to offer Weight Watchers selections on its restaurant menus. McDonald's is reducing the use of trans fats for cooking its French fries and has introduced a line of salads as well as leaner versions of its Chicken McNuggets. On January 6, 2004, McDonald's restaurants in New York, New Jersey, and Connecticut launched McDonald's "Real Life Choices," a program to help consumers stick to their diets while eating fast foods. The program teaches consumers how to choose food items based on the calorie, fat, or carbohydrate content. For example, breakfast choices include an "Egg McMuffin," which, when prepared without butter or margarine, is less than 300 calories, a snack-size fruit and yogurt parfait that contains less than 8 grams of fat, or a double order of scrambled eggs with fewer than 5 grams of carbohydrates.
In March 2004 McDonald's responded to growing attention to the relationship between portion size and obesity by announcing that the corporation would discontinue its "supersize" products—French fries and soft drinks—in an effort to simplify its menu and appeal to consumers' heightened awareness about obesity. McDonald's also piloted a new "Go Active" meal for adults that included a salad, a pedometer to count steps, and a bottle of water in several test markets throughout the country. Industry observers applauded these moves, citing the corporation's shift from the "value" aspect of fast food—providing more food for less money—to a more health-conscious purveyor of salads and reasonable portion sizes that emphasize nutrition rather than value. They also expressed the hope that other fast-food chains would follow suit and offer more nutritional information and lower calorie fare.