Why We Can't Outlaw Obesity

Professor Scott is Research Professor at the Health Law and Policy Institute, University of Houston Law Center, Tex.

Ronald L. Scott, JD, LLM

Through both litigation and legislation, the law reflects and seeks to address society's concerns. It has been clear for some time that obesity presents public health concerns as great as those resulting from tobacco use. Lawmakers naturally seek to cure society's ills through legislation, but a significant time lag usually exists between the time a problem is identified and until effective action is taken. The lawmaking process requires either consensus or effective lobbying, so the law is in effect reactionary. Often the problem is already solved before legislators act. Although the courts are also a mechanism for change, the time frame is even longer, given the slow pace of litigation.

The parallels between the risks posed by obesity and by tobacco are profound, although there are differences. Both pose significant public health risks. However, food is not addictive, and although a smoker can and should cease all tobacco use, an eater cannot refrain from all food. Secondhand smoke was once considered merely a nuisance but is now recognized as a significant health risk. Unlike smoking, obesity rarely affects the health of bystanders. A morbidly obese person in an adjoining airline seat may cause some discomfort to his seatmates and may even pose a safety risk if immediate evacuation of the aircraft is required. Airlines are sometimes demanding that obese passengers purchase 2 seats, and obese passengers are arguing that the airlines are illegally discriminating against them. Both obesity and tobacco use may increase an individual's healthcare costs, a clear concern for health insurance companies and employers. Both obesity and tobacco addiction, which were once considered lifestyle choices, are increasingly considered to be "medical" problems, and physicians are now expected to help patients suffering from either condition. Unfortunately, medical science has failed to find a "magic bullet" that is very effective for either condition.

How have legislators responded to the threat of obesity? At the federal level, lax regulation of "nutritional supplements" has resulted in billions of dollars being wasted on clearly ineffective treatments. This not only allows obese patients to be victimized financially but may also lead them to forego more effective approaches to treatment.

Plaintiffs' lawyers have filed or threatened lawsuits against fast-food companies. In 2005, McDonald's paid $8.5 million to settle a lawsuit filed by the Center for Science in the Public Interest, resulting from McDonald's' failure to honor its promise to quickly reduce trans fat in its cooking oils and its failure to inform consumers of this delay. Since January 1, 2006, the FDA has required food manufacturers to list trans fat (in addition to saturated fat and dietary cholesterol) on the "nutrition facts" food label required on many products.

The suit McDonald's settled was a deceptive trade practices case, not the typical "your food made me fat" lawsuit. McDonald's has been successful in defending suits alleging that obesity resulted from eating its food, but legislators in several states have already passed laws limiting such suits. Note the parallels with tobacco?suits filed against tobacco companies and federal warning label requirements for cigarettes.

Another legislative approach targets childhood obesity by regulating the foods and beverages that schools may serve. For example, Texas limits the quantity and frequency of fried foods served in school lunch programs, restricts portion sizes for some foods, and reduces the availability of sugar-laden sodas. Perhaps to limit or preempt further legislative action, industry groups have moved to voluntarily limit access to sodas in schools, particularly elementary schools. One tactic in the war against smoking was to ban smoking on public school campuses?even by teachers or parents. However, our views on food are more complex and more conflicted. At the same time that Texas school districts were seeking to comply with strict federal and state nutritional guidelines in their school lunch programs, some parents were irritated that school districts did not allow them to bring cakes or candy to school for their children's birthday celebrations. Texas lawmakers responded with legislation that at best sends a mixed message. They passed legislation requiring school health classes to emphasize the importance of proper nutrition and exercise and requiring daily physical activity in schools. However, the law also contained a "cupcake amendment," providing that parents and grandparent's can bring any food product to school for a student's birthday celebration.

The law has long been recognized as a powerful tool in public health, beginning with early judicial support for mandatory vaccination. However, there may be limits on how effectively we can "outlaw" obesity. In the future, the law will likely emphasize greater disclosure of nutritional information by restaurants, but it seems unthinkable that legislators would mandate serving sizes in restaurants, even though public health advocates strongly condemn "portion creep" or "super- sizing" everything, from sodas to french fries.

There is little political will to rein in "nutritional supplement" purveyors. Unlike tobacco, where governments filed the most successful legal actions against the industry, lawmakers seem more likely to protect the fast-food industry from lawsuits than to file suit against them. Although the law can act as an agent for change, a number of factors indicate that the law is unlikely to be an effective tool in fighting obesity. Our conflicted views on food and nutrition, notions of "personal responsibility," and general distrust for public health law combine to make legal efforts to combat obesity less successful.

Healthcare professionals may enjoy more success in dealing with obesity. Most patients still trust their physicians and value their advice. With the "medicalization" of obesity, physicians may be more likely to intervene before patients become morbidly obese. Physicians and other healthcare providers may be able to explain the health consequences of obesity in ways that patients not only understand but can act upon. Physicians should be able to convince patients that simple approaches, such as calorie reduction combined with an increase in physical activity, will yield better results than the latest "diet pill" promoted in an infomercial. The war on obesity may be better fought by physicians than by lawyers.