Legal Political and Social Issues of Overweight and Obesity - The U.s. War On Obesity Gains Momentum

In addition to generating international debate, the issue of obesity is receiving considerable attention from lawmakers, public health officials, and politicians throughout the United States. Some legislators and policy makers have chastised the administration of President George W. Bush for allegedly yielding to the food industry and trying to dilute the WHO antiobesity plan. Among the many legislative initiatives being considered are proposals to mandate nutrition information on restaurant menus, improving school lunch programs, and the imposition of taxes on high-calorie, low-nutrition food items.

Along with Brownell and Nestle, some of the combatants on the frontlines and in the news are Richard TABLE 8.2 Monthly estimates of fiscal 2006 U.S. sugar supply and use, May 2005–January 2006 "Table 26. Monthly Estimates of Fiscal 2006 U.S. Sugar Supply and Use," in Sugar and Sweeteners: Data Tables, United States Department of Agriculture, Economic Research Service, September 1, 2005, http://www.ers.usda.gov/Briefing/Sugar/Data/data.htm (accessed January 12, 2006)

TABLE 8.2
Monthly estimates of fiscal 2006 U.S. sugar supply and use, May 2005–January 2006
	May 2005	June 2005	July 2005	August 2005	September 2005	October 2005	November 2005	December 2005	January 2006
*As of May 2004, includes all stocks held by processors, millers, and refiners, including stocks held for others.
NA=Not available.
SOURCE: "Table 26. Monthly Estimates of Fiscal 2006 U.S. Sugar Supply and Use," in Sugar and Sweeteners: Data Tables, United States Department of Agriculture, Economic Research Service, September 1, 2005, http://www.ers.usda.gov/Briefing/Sugar/Data/data.htm (accessed January 12, 2006)
Beginning stocks*	1,343	1,343	1,476	1,448	1,528	1,515	1,355	1,347	1,347
Total production	8,140	8,140	8,151	7,990	7,963	7,874	7,522	7,668	7,593
Beet sugar	4,370	4,370	4,443	4,282	4,375	4,375	4,356	4,458	4,435
Cane sugar	3,770	3,770	3,709	3,709	3,588	3,499	3,166	3,210	3,158
Florid	1,950	1,950	1,899	1,899	1,899	1,913	1,580	1,602	1,455
Louisiana	1,400	1,400	1,376	1,376	1,256	1,152	1,152	1,152	1,263
Texas	170	170	180	180	180	180	180	180	180
Hawaii	250	250	254	254	254	254	254	276	260
Puerto Rico	0	0	0	0	0	0
Total Imports	1,591	1,591	1,591	1,661	1,837	2,065	2,180	2,770	2,770
Tariff-rate quota imports	1,206	1,206	1,206	1,276	1,412	1,680	1,705	2,140	2,140
Other program imports	325	325	325	325	325	325	325	325	325
Non-program imports	60	60	60	60	100	60	150	305	305
Total supply	11,074	11,074	11,218	11,099	11,329	11,454	11,057	11,784	11,710
Exports	200	200	200	200	200	200	175	175	175
Adjustments	0	0	0	0	0	0	0	0	0
Total deliveries	10,115	10,115	10,115	10,115	10,115	10,165	10,215	10,215	10,215
Domestic food and beverage	9,950	9,950	9,950	9,950	9,950	10,000	10,050	10,050	10,050
Other use	165	165	165	165	165	165	165	165	165
Total use	10,315	10,315	10,315	10,315	10,315	10,365	10,390	10,390	10,390
Ending stocks	759	759	903	784	1,014	1,089	667	1,394	1,320
Stocks/use ratio	7.36	7.36	8.75	7.60	9.83	10.50	6.42	13.42	12.70

TABLE 8.3 Names for added sugars that appear on food labels "Box 21. Names for Added Sugars That Appear on Food Labels," in Nutrition and Your Health: Dietary Guidelines for Americans, Fifth Edition, Home and Garden Bulletin, No. 232, U.S. Department of Agriculture (USDA), 2000, http://www.health.gov/dietaryguidelines/dga2000/document/choose.htm (accessed January 20, 2006)

TABLE 8.3
Names for added sugars that appear on food labels
A food is likely to be high in sugars if one of these names appears first or second in the ingredient list or if several names are listed.
SOURCE: "Box 21. Names for Added Sugars That Appear on Food Labels," in Nutrition and Your Health: Dietary Guidelines for Americans, Fifth Edition, Home and Garden Bulletin, No. 232, U.S. Department of Agriculture (USDA), 2000, http://www.health.gov/dietaryguidelines/dga2000/document/choose.htm (accessed January 20, 2006)
Brown sugar	Invert sugar
Corn sweetener	Lactose
Corn syrup	Malt syrup
Dextrose	Maltose
Fructose	Molasses
Fruit juice concentrate	Raw sugar
Glucose	Sucrose
High-fructose corn syrup	Syrup
Honey	Table sugar

Daynard, president of the Public Health Advocacy Institute, California state senator Deborah Ortiz (D-Sacramento), federal regulator John Graham, nutritionist Margo Wootan and executive director Michael Jacobson, both of the Center for Science in the Public Interest, law professor Richard Banzhaf, and Richard Berman, executive director of the Center for Consumer Freedom, an advocacy group supported by restaurant and food companies.

Skirmishes in the war on obesity do not center on whether there is a problem, but rather on how best to address it. Participants on one side characterize the food industry, advertisers, and the media as complicit—coercing consumers with seductive advertising and sugary, high-calorie treats. Their opponents believe that consumers should exercise personal responsibility and make their own choices about food and exercise.

In "The Ironic Politics of Obesity" (Science, vol. 299, no. 5,608, February 7, 2003), Nestle asserted that the war on obesity is unlikely to be won because healthful eating is not in the best interest of U.S. industry, and government agencies are beset by conflicts of interest. Nestle has condemned the lack of government leadership, observing that the U.S. Department of Agriculture (USDA) offers confusing and conflicting advice to consumers. To fulfill its mission to promote U.S. agricultural products, the USDA simultaneously exhorts consumers to eat more, while issuing sadvice about diet, which for many overweight Americans means "eat less." This conflict of interest has produced vague federal dietary guidelines that advise Americans to "aim for a healthy weight, [and] choose beverages and foods to moderate your intake of sugars." Nestle has called for "small taxes on junk foods and soft drinks (to raise funds for antiobesity campaigns); restrictions on food marketing to children, especially in schools and on television; calorie labels on fast foods; and changes in farm subsidies to promote the consumption of fruits and vegetables."

In contrast, the WHO strategy does not stipulate any specific tax or subsidy. However, it observes that several countries have adopted fiscal measures to promote availability of and access to various foods, and to increase or decrease consumption of certain types of food. The strategy notes that public policies can influence prices through such measures as tax policies and subsidies. The strategy acknowledges that decisions on policy options are the responsibility of individual member states, depending on their particular circumstances.

The Public Health Advocacy Institute (PHAI) contends that food industry processing and marketing practices have encouraged excessive food consumption. The PHAI Law and Obesity Project considers the existing state of regulation, legislation, and litigation related to the food industry's contribution to obesity, and the potential for new legal strategies to effectively reduce that contribution. PHAI board member Richard Daynard has suggested that every fast-food receipt should include not only item costs, but also calorie and fat content information.

California state senator Ortiz spearheaded a legislative victory that prohibits the state's public elementary and middle schools from selling soda from vending machines. On September 15, 2005, California Governor Arnold Schwarzenegger signed legislation to ban the sale of soda in the state's public high schools. John Graham, a Harvard University professor of public health who serves as administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget, campaigned to require food manufacturers to disclose the trans-fat content of their products on nutrition labels. (Trans-fats are formed by the partial hydrogenation of vegetable oil—the process used to make vegetable oil more solid. Trans fats raise LDL cholesterol levels and may lower HDL cholesterol.) The campaign was successful. As of January 1, 2006, the U.S. Food and Drug Administration (FDA) requires disclosure of the trans-fat contents of food to be sold in the U.S. market.

Richard Banzhaf, who campaigned forcefully against tobacco, advocates using the legal system to create change in Americans' diets. He exhorts attorneys to bring lawsuits against fast-food purveyors and manufacturers of junk food to increase consumer awareness of the role the food industry has played in promoting obesity.

Richard Berman, whose organization represents major corporations such as RJR Nabisco, has marshaled lawyers, publicists, and lobbyists to respond to antiobesity crusaders. The Center for Consumer Freedom identifies itself as a nonprofit coalition that stands for "common sense and personal choice." Its Web site derides lawsuits and legislation aimed at limiting consumers' rights to choose the foods they want to consume, and it pokes fun at CSPI mandates to offer consumers nutritional data, and the self-appointed "food police"—legislators, public health officials, and others—intent on modifying Americans' diets (http://www.consumerfreedom.com/). The organization is credited with helping to defeat a measure introduced by Ortiz in 2003 that would have required chain restaurants to offer nutritional data about their products. It also endorsed Florida Republican Representative Ric Keller's Personal Responsibility in Food Consumption Act (H.R. 339), aimed at protecting restaurants from obesity-related lawsuits. On January 28, 2004, the U.S. House Judiciary Committee approved H.R. 339; however, a companion bill introduced in the Senate, the Common Sense Consumption Act (S. 1428) did not make it out of Committee. In October 2005 the Center for Consumer Freedom was protesting legislative efforts to institute a fast-food restaurant and food service tax in Michigan.

The American Obesity Association Action Plan

In 2002 the American Obesity Association Action Plan put forth an agenda for the government that enumerated specific funding priorities, programs, and services to prevent, treat, and educate Americans. The plan called for:

• A national commitment to combating obesity comparable in scope and funding to those for cancer, HIV/AIDS, and smoking
• Full implementation of the National Institutes of Health Guidelines for the treatment of obesity in federal health programs including Medicare, Medicaid, federal employee health plans, the Indian Health Service, and plans for the military and veterans
• Allocation by Congress of at least $750 million to fund a comprehensive research program on obesity
• Accelerated HHS-funded research specifically aimed at preventing and treating childhood and adolescent obesity
• Assumption of a key leadership role by the education community to address the rise of obesity among students at all levels
• A Medicare prescription benefit to enable older adults and disabled people to gain access to antiobesity medications
• Support for consumer protection agencies' efforts to identify and eliminate frauds and deceptive practices directed against people with obesity
• Collaboration between the federal government and private organizations to initiate a campaign to better inform employers of the issues of workplace discrimination and denial of access to obesity treatment

• Enacting legislation introduced by Senators Patrick Leahy (D-VT) and Richard Lugar (R-IN) to allow the Secretary of Agriculture to more effectively restrict the sale of soft drinks and other foods of minimal nutritional value in schools that participate in the federal school-lunch program
• Concerted efforts of the HHS and the Department of Education to encourage states to screen students for diabetes and hypertension

By the close of 2005 at least one key AOA objective had been realized. In July 2004 the AOA celebrated the decision by the Centers for Medicare and Medicaid Services to eliminate language from its policy that said obesity is not a disease.

During 2005 AOA advocacy efforts centered on investigating and reversing insurers' decisions to eliminate coverage of bariatric surgery for people with clinically severe obesity. OPERATE (Obese People Entitled to Receive Appropriate Treatment Equitably) is a AOA project developed to reverse the January 1, 2005, decision by Blue Cross Blue Shield of Florida to drop bariatric surgery as a covered benefit for its members and to promote access to treatment for people with obesity. The AOA is focusing on the Florida insurer because it is concerned that if its decision is not overturned then other insurance companies may also opt to exclude or eliminate benefits. The OPERATE coalition includes "health professionals, businesses, hospitals, the general public, and any person or group who has a shared commitment to improve the lives of people with morbid obesity" (http://www.obesity.org/subs/advocacy/operate.shtml).