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Is Obesity the Public Policy Wave of the Future or a Dying (No Pun Intended) Issue?

Readers of FMLU have undoubtedly noticed that our lead articles over the past 18 months or so, including the one in this issue, have been about the FDA’s Bioterror Rules. However, there is still plenty of buzz about the obesity “epidemic.” Although we have commented about the obesity issue in a few past issues (Winter 2003 and Winter 2004) in light of a recent development, we think its time to reexamine the issue.

The recent development is the fact that the number of deaths from obesity related diseases may have been significantly overestimated by the NIH’s Center for Disease Control and Prevention (“CDC”). According to an article in The Wall Street Journal, a new analysis by the CDC has concluded that its original estimate of about 400,000 obesity related deaths a year was inflated by more than 200,000.

Does this mean that obesity is no longer the public policy issue de jour? While the issue may get a somewhat lower profile, we think that the genie is out of the bottle and revisions in CDC estimates will not cause it to go away. And although we don’t expect the “trial lawyers” to fold up their tents and all move on to the next big thing in public health issues (e.g. VIOXX), we think that the issue of obesity is as likely, if not more likely, to be resolved by regulatory fiat (particularly in some states such as California) than the creative theories of plaintiffs’ counsel which, even if accepted by some courts, may be legislatively overturned.

In this regard, is the real issue not obesity but nutrition in general? (There are plenty of “average” foods in the market place that would not win any nutritional awards from even the most pedestrian dietitian.) If so, then the analogy may not be the often-cited tobacco cases, but the U.S. Endangered Species Act (“ESA”). Environmental litigants (with the able assistance of some sympathetic federal judges) have essentially turned the ESA into a national land use (or as the critics would complain non-use) planning law, especially where land owned by the federal government is involved. (The U.S. government owns about 1/3 of the landmass of the United States.) Could obesity also be proxy for a much broader agenda concerning the regulation of the U.S. food supply?

We also see three basic scenarios or outcomes pertaining to obesity as a public policy issue. They are: repair, notice and ban. The “repair” scenarios are illustrated by the approach McDonald’s has taken. Pay lip service to the critics by ending supersizing (I’ll take two orders of fries instead of one), offer some “healthy” alternatives (most of which are nutritionally worse than the standard fare) and encourage people to exercise (Ronald McDonald now does Pilates).

The notice scenario would expand traditional labeling disclosures to notices on labels and at restaurants that the particular food (in the case of packaged food products) or a particular item on a restaurant menu is “bad” for you because of fat, cholesterol, trans fat, high calories, etc.

The ban scenario would do exactly as stated. It would be illegal to sell foods that exceed certain parameters of bad nutrients. We view this third alternative as neither practically nor politically feasible. After all, cigarettes have not been banned and the noble experiment (prohibition) was a complete flop.

On the other hand, the nutritional window dressing by the food industry may not work either. The most likely outcome, if the obesity issue continues to gain momentum, are requirements for more affirmative disclosures of “bad” nutrients in foods and more warning requirements. Of course, warning requirements on consumer products are nothing new. Tobacco products have had them for years. Non-food products have them all the time in order to avoid products liability claims. Currently there are alcoholic beverage warnings on product labels, in stores and in restaurants. In the past, the FDA had a cancer warning requirement for products that contained cyclamates as an artificial sweetener. Currently, FDA policies and congressional legislation are requiring enhanced labeling of allergens. Why not a label on the PDP that says “Warning: This product contains excessive amounts of fat that may be [or “are”?] harmful to your health” or a notice at fast food restaurants that states “Warning: The milk shakes served at this establishment are high in fat, calories, and cholesterol that may be [or “are”?] harmful to your health”? For obesity advocates, a warning might be enough to force a back door ban by forcing the industry to reformulate. This is exactly what is happening in the case of the new mandatory trans fat nutritional disclosure.

Third, we think that there are at least three specific areas where regulatory action might be taken or which merit examination as cross over issues.

Advertising to Children

This is a “mom and apple pie” issue and it’s our opinion that this is not going to go away even with a “conservative” administration and a Republican Congress, the latter of which may change in 2006. There is a long-standing tradition of public policy giving special recognition to “protecting” children. For example, the Children’s On-Line Privacy Protection Act (“COPPA”).

FDA Regulation of Restaurants

When the FDA was formed in 1906, there were no fast food restaurants and eating out was an activity limited to an affluent minority. Although we don’t have any statistics at hand, restaurant meals are obviously an enormous and growing part of the American diet. Interestingly, one of McDonald’s unsuccessful defenses in the Perman lawsuit was that the labeling of its products was subject to FDA regulation and therefore, it was not subject to prosecution under New York state law. The Perman lawsuit was filed in federal court in New York by two obese teenagers who alleged that their obesity was McDonald’s fault. Given the fact that some states may become much more aggressive than the FDA in dealing with the obesity issue, it’s possible that the restaurant industry may seek FDA regulation in order to avoid more onerous state regulation.

Cross Over Issues

We’re not quite sure how the following issues might play with obesity. However, consideration should be given to whether there is any relationship between the political economy and legal posture of obesity and the “low carb” marketing movement that food processors and retailers have taken and run with despite the lack of official FDA sanctions, and/or organic regulation by the USDA and GMO’s.

All three of these issues involve or potentially involve labeling, which, as we have suggested above, is the most likely public policy outcome. Of course, organic regulation includes a comprehensive set of labeling rules.

In the case of GMO’s, short of an outright ban, industry critics want foods that contain GMO’s to be labeled as such, preferably with the words “ruins the environment” and “will kill you.” You might want to note the anti-capitalist leanings (the real issue?) of a number of GMO opponents which is well expressed in a letter we reprinted in the Winter 2004 issue of FMLU.

 

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