The states continue to debate the benefits of requiring insurers to provide coverage for surgical treatment of clinically severe obesity. In 1999 Georgia was the first state to mandate coverage, and in 2000 Indiana and Virginia followed suit. Legislation to provide or strengthen private insurance coverage for obesity prevention or treatment, especially for people with clinically severe obese was considered or enacted in 2005 by Alaska, California, Connecticut, Georgia, Indiana, Maryland, Missouri, Mississippi, Tennessee, and Virginia. Maryland currently requires insurers to cover obesity treatment including surgery, while Georgia, Indiana, and Virginia require private insurers to offer general coverage for clinically severe obesity as an option.
Legislators Target School Programs
The National Conference of State Legislatures reported that during 2005, legislatures were actively considering policy options to address the obesity epidemic. Aiming to start early to prevent the onset of chronic conditions, legislators proposed a variety of policy approaches to create opportunities for a healthier diet and more exercise beginning in childhood. State legislatures in thirty-eight states considered or enacted legislation aimed at improving the nutritional quality of school foods and beverages. This includes twenty-one states in which such legislation was under consideration in 2005, fifteen states in which legislation was enacted, one state in which legislation passed both chambers of the legislature and was sent to the lieutenant governor, and one state in which the legislation was vetoed.
The seventeen states that enacted school nutrition legislation in 2005 are Arizona, Arkansas, California, Colorado, Illinois, Kansas, Kentucky, Louisiana, Maine, Maryland, New Mexico, North Carolina, Oklahoma, Rhode Island, South Carolina, Texas, and West Virginia. Legislation was sent to the lieutenant governor in Utah. In Texas, legislators modified school nutrition requirements already in place through the state's Department of Agriculture. The Texas Public School Nutrition Policy became effective August 1, 2004, under the auspices of the state's Agriculture Commissioner, who was authorized by the governor to administer the state's National School Lunch Program, School Breakfast Program, and After School Snack Program. New Jersey also implemented comprehensive school nutrition standards through its Department of Agriculture under the governor's direction in 2005, effective for the 2007–08 school year.
In Connecticut, a comprehensive school nutrition and physical activity bill passed the legislature but was vetoed by the governor. The bill would have required a daily minimum period of physical activity for students, established committees to monitor and implement nutrition and physical activity policies, and limited the types of beverages available to students. Nineteen other state legislatures considered school nutrition legislation in 2005—Alabama, Alaska, Hawaii, Indiana, Iowa, Massachusetts, Missouri, Mississippi, Montana, Nebraska, New Hampshire, New Jersey, New York, North Dakota, Ohio, Oregon, Pennsylvania, Tennessee, and Virginia.
During 2005 Colorado, Kentucky, Maine, and West Virginia enacted obesity initiatives that provide nutrition content information for foods on school menus or all foods and beverages served in schools to enable students and parents to make healthy choices. Many states also considered legislation to require nutrition labeling or menu information for food and drink items in all restaurants or retail food establishments. While many states have school health education requirements, in recent years legislators have considered or enacted bills specifically requiring nutrition education aimed at preventing childhood obesity as a key component of school health curricula. California, Colorado, Illinois, Kansas, Maine, South Carolina, Texas, and West Virginia were among the states that required some form of nutrition education in 2005.
The federal Child Nutrition and WIC Reauthorization Act of 2004 (P.L. 108-265) requires each school district participating in the National School Lunch and/or Breakfast Program to establish a local wellness policy by the beginning of the 2006–07 school year. Statewide legislation for wellness policies was considered or enacted in 2005 independently or in response to the federal requirement in California, Colorado, Illinois, Ohio, Rhode Island and Tennessee.
In 2005 thirteen states considered or enacted legislation related to student body mass index (BMI). Tennessee and West Virginia mandated monitoring BMI as part of comprehensive antiobesity legislation. Other states that considered BMI legislation in 2005 include Alaska, Connecticut, Georgia, Iowa, Maine, New Jersey, New York, North Carolina, Oregon, South Carolina, and Texas. In Arkansas, the first state to enact BMI legislation in 2003, legislation was introduced in 2005 to repeal the state's requirement for confidential reporting of student BMI information to parents, but it did not pass. Tennessee legislation requires reporting student BMI to parents as part of a confidential health report card; providing parents with basic information about what BMI means and what they can do with this information; and encourages schools where BMI data suggest high rates of overweight to expand or implement school-based nutrition and physical activity programs. In West Virginia, the legislation establishes physical activity requirements in public schools using BMI as an indicator of progress and includes BMI measurement in kindergarten screening procedures. West Virginia students in grades four through eight and those in high school physical education will undergo BMI measurement in required fitness testing procedures. The legislation protects student confidentiality and requires that all BMI data be reported in aggregate to the governor, the State Board of Education, the Healthy Lifestyles Coalition, and the Legislative Oversight Commission on Health and Human Resource Accountability.
Forty-eight states continue to require physical education in schools, but the nature and extent of the requirement varies. In 2005 thirty-five states considered legislation governing physical activity or physical education in schools and at least eight of those states enacted legislation including Arizona, Colorado, Kansas, Kentucky, Louisiana, Montana, South Carolina, and Texas. States have focused on increasing physical education requirements or encouraging positive physical activity programs for students during and after school. Some states and school districts cite the cost of physical education programs and an emphasis on academics as obstacles to increasing physical education programs.
States with legislative proposals to create childhood obesity task forces, commissions or studies in 2005 included Kansas, New Mexico, North Carolina, Virginia, and West Virginia. California and Illinois enacted legislation to raise public awareness of childhood obesity and to address the problem with wellness, nutrition, and physical activity initiatives.
RESTOCKING VENDING MACHINES IN SCHOOLS
The CDC School Health Policies and Programs Study (SHPPS) 2000 survey found that 43% of elementary schools, 89.4% of middle/junior high and 98.2% of senior high schools had either a vending machine or a school store, canteen, or snack bar where students could purchase competitive foods or beverages (food of the same types available in grocery and convenience stores, as opposed to school lunch foods that must adhere to federal nutrition guidelines).
Since 2000 many states have undertaken efforts designed to improve the nutritional value of the products available in food and beverage vending machines in elementary, middle/junior, and high schools. Some states have introduced and enacted legislation to replace existing food and drinks of minimal nutritional value with healthier options or to restrict student access to the machines. This is not exclusively state issue; some cities and local schools districts have established policies banning or replacing specific foods and beverages in vending machines or restricting student access to the machines.
In 2003 two states enacted laws regarding vending machines in schools. Arkansas banned access by elementary school students to vending machines offering food and soda. California banned vending machine sales of carbonated beverages to elementary, middle, and junior high school students and replaced them with milk, water, and juice. It also limited vending machine access in middle and junior high schools from one-half hour before the start of the school day to one-half hour after the end of the school day. In the 2004 session four states—Colorado, Louisiana, Tennessee, and Washington—enacted laws regarding vending machines in schools. In 2005 state legislation specific to vending machines in schools was introduced in Arizona, California, Connecticut, Florida, Hawaii, Illinois, Indiana, Iowa, Kansas, Kentucky, Maryland, Michigan, Mississippi, Montana, Nebraska, New Jersey, New Mexico, New York, North Dakota, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, West Virginia, and Virginia.
Lawsuits Attack Food Service Industry
An increasing number of individuals and advocacy groups are bringing lawsuits against the food service industry. Some claim they deserve compensation for the damage that fattening foods have done to their health. Others focus on advertising and marketing that they feel is deceptive and misleads people into eating unhealthy products. 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.
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, 2002), 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." Although Barber's suit was dismissed by two judges and he was barred from filing a third time, legal scholars assert that more cases like his will be heard by the courts.
The legal community did not have long to wait. In January 2005 an appeals court ordered McDonald's to defend a 2004 lawsuit by New York teenagers Ashley Pelman and Jazlen Bradley, who claim the company hid the health risks of Chicken McNuggets and other foods that made them obese. Samuel Hirsch, the lawyer who represented Caesar Barber, represents the teenagers. The suit is the first complaint accusing a fast-food chain of hiding health risks of their food to be considered by a judge. The teenagers said they ate at McDonald's restaurants three to five times a week over a fifteen-year period. Their suit claims the company hid the health risks of Big Macs, Chicken McNuggets, and other foods high in fat and cholesterol in its 1987 advertisements in the United States and in brochures circulated in Great Britain. McDonald's defended the accuracy of its ads and asserted that there was no evidence that the teenage plaintiffs, one of whom was born in 1988, ever saw the ads.
Prior to the teens' and Barber's suits, there were at least three 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, underreporting it by more than 340%.
PHYSICIANS GROUP SUES DAIRY INDUSTRY
In July 2005 the Physicians Committee for Responsible Medicine filed a class action lawsuit against the dairy industry and several food companies for falsely claiming that dairy consumption can help people lose weight. The suit was prompted by television and print advertisements sponsored by the dairy industry that claimed consuming twenty-four ounces of fat-free or low-fat dairy per day can help the body burn fat. The physicians committee contends that most scientific evidence shows people will either gain weight or remain the same weight with increased dairy consumption. According to the committee, the industry claims rely almost exclusively on research conducted by Michael B. Zemel, a University of Tennessee nutritionist whose work is funded by the dairy industry. Zemel responded to these charges by saying that the funding he has received from General Mills and the National Dairy Council has not affected his findings.
The physicians committee is not alone in their lawsuit. Co-plaintiff Catherine Holmes is also suing for $236, the amount she spent on dairy products in a failed attempt to lose weight. Holmes claims that she gained two pounds rather than losing weight when she increased her dairy consumption by eating yogurt and cottage cheese.
One of the defendants in the case is the International Dairy Foods Association (IDFA), a trade group that represents food manufacturers that use dairy products. A spokesperson for the IDFA asserted that the claims were valid and were reviewed by the USDA. Two other defendants in the case are the National Dairy Council, Dairy Management Inc., General Mills, Kraft Foods, Dannon Co., Lifeway Foods, and McNeil PPC (Frederic J. Frommer, "Group to Sue Dairy over Weight-Loss Claim" Associated Press, June 27, 2005).
Legislation Protects Food Industry Interests
The food industry and others argue that Americans choose what they eat, and should not be able to blame the food industry if their personal choices have unhealthy consequences. State and federal legislators that agree with this viewpoint have enacted or attempted to enact laws that protect the food industry from weight-related lawsuits.
On October 19, 2005, the House of Representatives passed a bill that would prevent most obesity or weight-related claims against the food industry and make it harder than ever before for consumers to sue restaurants and food retailers for serving fattening fare. By a vote of 307 to 119, lawmakers endorsed the "Personal Responsibility in Food Consumption Act," which informs consumers that if they gain weight as a result of eating high-fat, high-calorie, and sugar-laden food, they have only themselves to blame. The legislation, however, did not receive a vote in the Senate and did not become law.
The restaurant and food-processing industries have also championed state measures such as the Idaho Commonsense Consumption Act, signed into law on April 2, 2004, which bans civil lawsuits for obesity and obesity-related health problems. The same month, Arizona enacted legislation affirming, "that there is no duty to warn a consumer that a non-defective food product may cause health problems if consumed excessively and provides an affirmative defense."
In 2005 Wyoming enacted a bill that limits an individual's ability to sue food and beverage companies. Specifically, Wyoming's Commonsense Consumption Act, H.B. 170, prohibits an individual from suing a manufacturer, seller, trade association, agricultural producer, wholesaler, broker, or retailer of a qualified product for injury or death based on the individual's weight gain, obesity, or a health condition related to weight gain or obesity. South Dakota and Utah had passed comparable legislation in March 2004, followed by Colorado, Florida, Georgia, Missouri, and Tennessee in May 2004, Louisiana in June, Illinois in July, and Michigan in October. In addition to Wyoming, Kansas, Kentucky, Maine, North Dakota, Ohio, Oregon, and Texas introduced and enacted legislation limiting obesity-related lawsuits in 2005.
At the close of 2005, Minnesota, Nebraska, New Jersey, New York, Oklahoma, Pennsylvania, Rhode Island, South Carolina, and Wisconsin were considering variants of this type of legislation. Alabama, California, Connecticut, Iowa, Maryland, Mississippi, Montana, Nevada, New Hampshire, New Mexico, North Carolina, Pennsylvania, Virginia, and Wisconsin tabled or defeated such legislation in 2004–05. Although lawmakers in many states agreed that lawsuits against restaurants for obesity claims are frivolous, several did not consider it necessary to pass legislation to prevent such lawsuits. In Wisconsin, Governor Jim Doyle vetoed an obesity lawsuit bill, indicating that courts are capable of distinguishing frivolous lawsuits from those with merit.
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