Obesity the Public Policy Wave of the Future or a Dying (No Pun
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.
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.
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.
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.
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
FDA Regulation of Restaurants
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.
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.
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.