Application of Law to the Childhood Obesity Epidemic

The term “obese” is difficult – and controversial – to define in children because they are in various stages of physical growth and development. Doctors typically compare a child's Body Mass Index (BMI) to those of others of the same age and gender to determine the normal BMI range. Office of the Surgeon General, Public Health Service, U.S. Department of Health and Human Services, The Surgeon General's Call to Action to Prevent and Decrease Overweight and Obesity (Rockville, MD: U.S. Department of Health and Human Services, Public Health Service, Office of the Surgeon General, 2001): At 1, 6. BMI is calculated by dividing weight in kg by height in meters squared. Id. at 4. Throughout this article we use the term “obese” to refer to children who exceed the clinically accepted BMI range for their age and gender.

Institute of Medicine, Preventing Childhood Obesity: Health in the Balance (Washington, D.C.: National Academies Press, 2005): At 22.

See Surgeon General, supra note 1, at XIII.

See Institute of Medicine, supra note 2, at 22.

See Surgeon General, supra note 1, at XIII.

Our use of the term “situational” echoes the use of the term by David Yosifon. Yosifon D. G. , “Resisting Deep Capture: The Commercial Speech Doctrine and Junk Food Advertising to Children,” Loyola of Los Angeles Law Review 39, no. 1 (2006): 507–602.

See Surgeon General, supra note 1, at 1.

Id. at 2.

Tulchinsky T. Varavikova E. , The New Public Health (San Diego: Academic Press, 2000): At 30–33.

Krieger Compare N. , “Epidemiology and the Web of Causation: Has Anyone Seen the Spider?” Social Science & Medicine 39 (1994): 887–903, at 892. (Krieger's description of the “biomedical individualism” of traditional descriptions of cause implies difficulties with conditions unrelated to traditional pathogens.)

See, e.g., Frank T. H. , “A Taxonomy of Obesity Litigation,” University of Arkansas at Little Rock Law Review 28 (2006): 427–441, at 437 (relying upon clinical sources to demonstrate insufficiency of legal causation in describing epidemiological problems). But see Smith J. A. , “Setting the Stage for Public Health: The Role of Litigation in Controlling Obesity,” University of Arkansas at Little Rock Law Review 28 (2006): 443–455, at 451–452.

Richard Epstein provides an excellent example of this position in relation to the obesity epidemic. He suggests that the state only intervene when a system of private rights in a free-market system fails to provide a solution. His paper suggests that occurs only in situations of infectious disease that fit models of causation described by Henle-Koch. Epstein R. A. , “Let the Shoemaker Stick to His Last: A Defense of the ‘Old’ Public Health,” Perspectives in Biology and Medicine 46 (2003): S138–159, at S143.

See, e.g., Milkis S. M. , “The Federal Trade Commission and Consumer Protection: Regulatory Change and Administrative Pragmatism,” Antitrust Law Journal 72 (2005): 911–941, at 930ff.

By “social individual” we mean the conception of the individual that describes his or her autonomy very much as a product of the environment. A legal focus on the social individual would alter the environment that constructs and manipulates individual actions. See Yosifon , supra note 6.

E.g., Strnad J. , “Conceptualizing the ‘Fat Tax’: The Role of Food Taxes in Developed Economies,” Southern California Law Review 78 (2005): 1221–1326.

E.g., Brownell K. D. Horgen K. B. , Food Fight (Chicago: Contemporary Books, 2004): At 194–196.

Child Nutrition and WIC Reauthorization Act of 2004, §204, Public Law 108–265, 118 Stat. 729 (codified generally in sections of U.S. Code, vol. 42), available at <http://www.fns.usda.gov/cnd/Governance/Legislation/Historical/PL_108–265.pdf> (last visited October 27, 2006).

E.g., Verb campaign, available at <http://www.cdc.gov/youth-campaign/> (last visited October 27, 2006).

See Nestle M. , Food Politics: How the Food Industry Influences Nutrition and Health (Berkeley and Los Angeles: University of California Press, 2002): At 29ff.

See, e.g., French S. A. , “Food Environment in Secondary Schools: A La Carte, Vending Machines, and Food Policies and Practices,” American Journal of Public Health 93 (2003): 1161–1167.

Krieger N. , “A Glossary for Social Epidemiology,” Journal of Epidemiology & Community Health 55 (2001): 693–700, at 693.

See Krieger , supra note 10, at 897–898.

Burris S. Kawachi I. Sarat A. , “Integrating Law and Social Epidemiology,” Journal of Law, Medicine, & Ethics 30 (2002): 510–521. Benforado, Hanson, and Yosifon explored in depth the effect of the social situation on behavior and policy in relation to obesity. Benforado A. Hanson J. Yosifon D. , “Broken Scales: Obesity and Justice in America,” Emory Law Journal 53 (2004): 1645–1806, at 1648.

Glass T. A. McAtee M. J. , “Behavioral Science at the Crossroad in Public Health: Extending Horizons, Envisioning the Future,” Social Science & Medicine 62 (2006):1650–1671, at 1659–1660.

See, e.g., Daynard R. A. , “Regulating Tobacco: The Need for a Public Health Judicial Decision-making Canon,” Journal of Law, Medicine & Ethics 30 (2002): 281–289; Parmet W. E. Robbins A. , “Public Health Literacy for Lawyers,” Journal of Law, Medicine & Ethics 31 (2003): 701–713.

See, e.g., Alderman J. Daynard R. A. , “Applying Lessons from Tobacco Litigation to Obesity Lawsuits,” American Journal of Preventive Medicine 30 (2006): 82–88; Parmet W. E. Smith J. A. , “Free Speech and Public Health: A Population-based Approach to the First Amendment,” Loyola of Los Angeles Law Review 39, no. 1 (2006): 363–446; Parmet W. E. Banthin C. N. , “Public Health Protection and the Commerce Clause: Controlling Tobacco in the Internet Age,” New Mexico Law Review 35 (2005): 81–122, at 84.

See part IIIA for a discussion of competitive foods.

E.g., Child Nutrition Promotion and School Lunch Protection Act, S. 2592 IS, 109th Cong. (2006) (seeking to revise the definition of FMNV in accordance with scientific recommendations and apply the new regulations to all foods wherever and whenever sold in schools, with an exception for fundraisers).

See e.g., Burris Kawachi Sarat , supra note 24.

See Mariner W. K. , “Law and Public Health: Beyond Emergency Preparedness,” Journal of Health Law 38 (2005): 247–285, at 277–285.

See Parmet Banthin , supra note 27, at 84.

See Mariner , supra note 31, at 281–283.

“The National School Lunch Program (NSLP) is a federally assisted meal program operating in public and nonprofit private schools and residential child care institutions. It provides nutritionally balanced, low-cost or free lunches to children each school day. The program was established under the National School Lunch Act, signed by President Harry Truman in 1946.” USDA, National School Lunch Program, available at <http://www.fns.usda.gov/cnd/lunch/> (last visited October 27, 2006).

“The School Breakfast Program (SBP) provides cash assistance to States to operate nonprofit breakfast programs in schools and residential childcare institutions. The program operates in more than 72,000 schools and institutions, serving a daily average of some 8.4 million children. It is administered at the Federal level by FNS. State education agencies administer the SBP at the State level, and local school food authorities operate it in schools.” USDA, School Breakfast Program, available at <http://www.fns.usda.gov/cnd/breakfast> (last visited October 27, 2006). However, foods offered as part of a “grab-n-go” breakfast contain sugary cereals, animal and snack crackers, and apple juice. All of the items are branded. See Breaks Breakfast , available at <http://www.breakfastbreaks.com/school/index.php> (last visited October 27, 2006).

“CACFP plays a vital role in improving the quality of day care for children and elderly adults by making care more affordable for many low-income families. Through CACFP, 2.9 million children and 86,000 adults receive nutritious meals and snacks each day as part of their day care.” USDA, Child and Adult Care Food Program, available at <http://www.fns.usda.gov/cnd/care/> (last visited October 27, 2006).

“The Summer Food Service Program was created to ensure that children in lower-income areas could continue to receive nutritious meals during long school vacations, when they do not have access to school lunch or breakfast…SFSP sponsors receive payments for serving healthy meals and snacks to children and teenagers, 18 years and younger, at approved sites in low-income areas.” USDA, Summer Food Service Program, available at <http://www.fns.usda.gov/cnd/summer/about/index.html> (last visited October 27, 2006). In 2005, the summer program served 115.8 million meals. USDA, SFS Summary, available at <http://www.fns.usda.gov/pd/sfsummar.htm> (last visited October 27, 2006).

“The Special Supplemental Nutrition Program for Women, Infants, and Children - better known as the WIC Program - serves to safeguard the health of low-income women, infants, & children up to age 5 who are at nutritional risk by providing nutritious foods to supplement diets, information on healthy eating, and referrals to health care.” USDA, About WIC, available at <http://www.fns.usda.gov/wic/aboutwic/default.htm> (last visited October 27, 2006).

“The Food Stamp Program helped put food on the table for some 10.3 million households and 23.9 million individuals each day in Fiscal Year 2004. It provides low-income households with coupons or electronic benefits they can use like cash at most grocery stores to ensure that they have access to a healthy diet.” USDA, Food Stamp Program FAQs, available at <http://www.fns.usda.gov/fsp/faqs.htm> (last visited October 27, 2006). A history of this program is available online. USDA, A Short History of the Food Stamp Program, available at <http://www.fns.usda.gov/fsp/rules/Legislation/history.htm> (last visited October 27, 2006).

“The Federal nutrition assistance programs can play a critical role in combating this [obesity] epidemic by providing not just access to healthful food, but also promoting better health through nutrition education and promotion of physical activity.” USDA, Food and Nutrition Service, “Newsroom: Statement of Eric M. Bost, Under Secretary of Food, Nutrition, and Consumer Services, Before the Subcommittee on Agriculture, Rural Development, Food and Drug Administration and Related Agencies,” March 10, 2005, available at <http://www.fns.usda.gov/cga/Speeches/CT031005-a.html> (last visited October 27, 2006).

For example, participation in the NSLP has grown from 7.1 million at its inception in the 1946–47 school year to 28.4 million in 2003. The SBP is much smaller, although current efforts, including a publicity campaign spearheaded by former Senators McGovern and Dole, are aimed at increasing participation. Dell'Amore C. , “McGovern Rallies for Hunger Initiative,” May 17, 2006, available at <http://www.gotbreakfast.org/news/United_Press_International.html> (last visited October 27, 2006).

Nestle, Food Politics, supra note 20, at 367, 370; Nestle M. Jacobson M. F. , “Halting the Obesity Epidemic: A Public Health Policy Approach,” Public Health Reports 115 (2000): 12–24.

See, e.g., WIC Reauthorization Act, supra note 17: “The Secretary shall issue guidance to States and school food authorities to increase the consumption of foods and food ingredients that are recommended for increased serving consumption in the most recent Dietary Guidelines for Americans.”

See, e.g., Shapiro L. , “School Food: What's in a Lunch,” Newsweek 117, Special Issue (1991): 66–68. Efforts are being made to reduce the fat and sodium content of purchases commodities and schools are receiving fresh fruits under an arrangement with the Department of Defense. USDA, Food Distribution Programs, available at <http://www.fns.usda.gov/FDD/programs/dod/default.htm> (last visited October 27, 2006). The USDA is also working to establish Farm to School programs. USDA, Agricultural Marketing Service, How Local Farmers and School Food Service Buyers are Building Alliances, available at <http://www.ams.usda.gov/tmd/MSB/PDFpubList/localfarmsandschool.pdf> (last visited October 27, 2006).

Burros M. , “A Victory for Vending: Can Vigilance Veto Junk Foods?” Washington Post, June 9, 1977, at F1. The article quotes from an editorial in the trade journal Candy and Snack Industry: “The National Confectioners Association and the National Candy Wholesalers Association have worked together effectively to prevent anti candy rulings from becoming part of the National School Lunch Act over the year.”

“[T]he vast majority of most kids' calorie and fat intake comes not from school lunch, but from family dinners at fast food restaurants or high fat foods from the home freezer.” Lawn J. , “School Foodservice Faces a Growing Communication Gap,” available at <www.food-management.com/article/2130> (last visited October 27, 2006); The Grocery Manufacturers of America, an industry trade group, has steadfastly opposed state legislation it characterizes as “food and beverage restriction” in schools. See, e.g., Fisk K. , “RE: GMA Letter in Opposition of Texas Food and Beverage Restrictions,” available at <http://www.gmabrands.com/publicpolicy/docs/comment.cfm?DocID=1510> (last visited October 27, 2006).

Nestle provides a succinct and detailed history of regulations aimed at controlling the sale of competitive and other food of minimal nutritional value. See Nestle , Food Politics, supra note 20, at 207–211.

“AB 1755 would have banned the sale of junk foods at public school…The prevailing argument against the bill was that the issue should be resolved at the local level. Unfortunately, the high profits from the sales of such foods are not easily relinquished by school boards facing increasing costs and inadequate revenues. An exception to this is the Las Virginies Unified School District, which has adopted a nutrition policy for the sale of foods in all of its schools…. No soft drinks, no artificial coloring or flavoring, or sodium nitrate is allowed. Breads must contain no less than 25% whole wheat and no more than 10% of the calories of any food may be derived from added sugar.” Harris E. S. , “Consumer Advocate: Comprehensive State Food Plan,” Los Angeles Times, August 21, 1977, Part V, at F5.

USDA, National School Lunch Program and School Breakfast Program, Proposed rule, 44 Fed. Reg. 40004–40014 (July 6, 1979); Final rule, 45 Fed. Reg. 6758–6772 (January 29, 1980); USDA, “National School Lunch Program and School Breakfast Program: Competitive Foods, Final Rule,” Federal Register 50 (1985): 20545–20547.

See Nestle , supra note 20, at 207.

“There's no reason why a child should not have a soft drink or a candy bar…School authorities should teach moderation rather than try to prohibit the sale of these items…Tooth decay is caused by a combination of factors…If those advocating curtailment of school sales were as interested in encouraging children to brush their teeth…as they are in trying to take candy away from them, they would accomplish much more.” Interview with James E. Mack; President and General Counsel, National Confectioners Association, “Curb ‘Junk Foods’ in Schools?: NO – Everything We Eat Need Not have a Scientific, Medical, Nutritional Reason,” U.S. News and World Report 87, no. 13 (1979): At 59; “It is not the place of the Agriculture Department to be telling parents, school administrators, and locally elected school boards how to schedule their cafeteria operations and vending machine hours.” Editorial, “The Spoon-Feeding of Nonjunk,” Los Angeles Times, May 1, 1978, at D4.

National Soft Drink Association v. Block , 721 F.2d 1348 (D.C. Cir. 1983).

Id.; see also “Court Says U.S. Erred in School Junk Food Ban,” Los Angeles Times, November 15, 1983, at A1.

Competitive foods are defined as foods offered at school other than meals served through school lunch, school breakfast, and after-school snack programs. Current program regulations prohibit the sale of FMNV in the food service areas during the school meal periods. 7 C.F.R. § 210.11(b) (2005). The regulations do not prohibit their sale outside the food service area at any time during the school day. States and local school food authorities may impose additional restrictions. Foods of minimal nutritional value are defined at 7 C.F.R. § 210.11(a)(2) (2005). FMNV are soda water, ices without fruit, chewing gum, and certain hard candies. Appendix B of 7 C.F.R., Part 210 (2005).

National Soft Drink Association v. Block , 721 F.2d 1348 (D.C. Cir. 1983).

Local schools maintained the ability to control competitive junk foods, although few did so. United States General Accounting Office, School Meal Programs: Competitive Foods are Available in Many Schools; Actions Taken to Restrict Them Differ by State and Locality, available at <http://www.gao.gov/new.items/d04673.pdf> (last visited October 27, 2006).

USDA, Foods Sold in Competition with USDA School Meal Programs: A Report to Congress , January 12, 2002, available at <http://www.fns.usda.gov/cnd/Lunch/Competitive-Foods/report_congress.htm> (last visited October 27, 2006).

See Girard P. , “School ‘Junk Food’ Restriction Delayed,” Los Angeles Times, December 16, 1978, at A2.

Harty S. , Hucksters in the Classroom: A Review of Industry Propaganda in Schools (Washington, D.C.: Center for Study of Responsive Law, 1979); United States General Accounting Office, Public Education: Commercial Activities in Schools , September 2000, available at <http://www.gao.gov/new.items/he00156.pdf> (last visited October 27, 2006).

CSPI, Dispensing Junk: How School Vending Undermines Efforts to Feed Children Well , May 2004, available at <http://cspinet.org/new/pdf/dispensing_junk.pdf> (last visited October 27, 2006); Consumers Union, Captive Kids: A Report on Commercial Pressures on Kids at School, available at <http://www.consumersunion.org/other/captivekids/index.htm> (last visited October 27, 2006).

See Nestle , supra note 20, at 207; Nestle M. , “Soft Drink ‘Pouring Rights’: Marketing Empty Calories to Children,” Public Health Reports 115 (2000): 308–319.

Nielsen S. J. Popkin B. M. , “Changes in Beverage Intake between 1977 and 2001,” American Journal of Preventive Medicine 27 (2004): 205–210, at 207.

French S. A. , “Food Environment in Secondary Schools: A La Carte, Vending Machines, Food Policies, and Practices,” American Journal of Public Health 93 (2003): 1161–1168.

Ludwig D. S. Peterson K. E. Gortmaker S. L. , “Relation Between Consumption of Sugar-sweetened Drinks and Childhood Obesity: A Prospective, Observational Analysis,” Lancet 357 (2001): 505–508.

Wyshak G. , “Teenaged Girls, Carbonated Beverage Consumption and Bone Fractures,” Archives of Pediatrics and Adolescent Medicine 154 (2000): 610–613.

See e.g., the Center for Consumer Freedom's dismissal of scientific evidence linking soda consumption and obesity and the Coca-Cola company's discussion of the same topic: Coca-Cola Company, Information Regarding Obesity and Soft Drinks, available at <http://www2.coca-cola.com/ourcompany/al_obesity_and_softdrinks.html> (last visited October 27, 2006). Coca-Cola's Health and Wellness Institute turns to science in a positive vein; it “focuses on how beverages and beverage ingredients can improve health and help address significant health and nutrition problems around the world.” Coca-Cola Company, Beverage Institute for Health and Wellness, Research Focus, available at <http://www.thebeverageinstitute.org/about_us/research_focus.shtml> (last visited October 27, 2006).

The soft drink industry continues to emphasize lack of exercise as the prime cause of childhood obesity, despite attempts to present a more nuanced understanding of the link between the consumption of sugary soft drinks and obesity. Compare Williams S. , “More Limits Sought on Soda Sales in Schools Health Experts Say Soft Drinks Lead to Obesity in Kids,” The Columbus Dispatch, Friday, January 9, 2004, with this recent statement on the American Beverage Association website: “A main contributing factor of obesity is lack of exercise. University of North Carolina researchers found that in the past 20 years adolescent obesity rates climbed 10 percent, while calorie intake only rose one percent. During the same period, children's physical activity levels declined 13 percent.” American Beverage Association, Obesity, available at <http://www.ameribev.org/industry-is-sues/healthy-balanced-diet/obesity/index.aspx> (last visited October 27, 2006).

Bright B. , “More Americans See Childhood Obesity as Major Problem in U.S., Poll Finds,” Wall Street Journal, July 5, 2006.

See Nestle Jacobson , supra note 42.

Fried E. J. Nestle M. , “The Growing Political Movement Against Soft Drinks in Schools,” JAMA 288 (2002): 2181.

The struggle to change the school food environment is illustrated by the historic nine hour debate in the Connecticut state legislature in which every conceivable argument against removing junk foods and sugary beverages was offered primarily by Republicans. The bill, passed by the Democratic majority in June 2005, was vetoed by the governor on the grounds, inter alia, that it improperly usurped control of local schools. An Act Concerning School Nutrition, available at <http://www.cga.ct.gov/2005/act/Pa/2005PA-00117-R00SB-01309-PA.htm> (last visited October 27, 2006); video of legislative debate available on Connecticut Network webpage, available at <http://www.ctn.state.ct.us/> (last visited October 27, 2006); SB 1309, May 15, 2005; Press Release, Governor Rell Vetoes School Nutrition Bill , June 14, 2005, available at <http://www.ct.gov/governorrell/cwp/view.asp?Q=294564&A=1761> (last visited October 27, 2006). The Connecticut legislature narrowly passed a similar bill that now includes financial incentives for schools to offer healthier food options and Governor Rell signed it into law on May 19, 2006. Connecticut, An Act Concerning Healthy Food and Beverages in Schools, S.B. 373 (May 19, 2006).

National Council of State Legislatures, Childhood Obesity – 2005 Update and Overview of Policy Options, available at <http://www.ncsl.org/programs/health/ChildhoodObesity-2005.htm> (last visited October 27, 2006).

Hellmich N. , “Health Movement Has School Cafeterias in a Food Fight: Concern about Child Obesity Brings Slimmed-down Fare, but Will the Kids Go For It?” USA Today, August 22, 2005, at A1. See also Jacobson L. , “California Says ‘No’ to School Junk-Food Sales,” Education Week 25, no. 5 (2005): 20–23.

Simon M. Fried E. , “State Laws on School Vending: A Progress Review and Call to Action,” May 2006 [unpublished manuscript on file with author].

Center for Science in the Public Interest, School Foods Report Card: A State-by-State Evaluation of Policies for Foods and Beverages Sold through Vending Machines, School Stores, A La Carte, and Other Venues Outside of School Meals, available at <http://cspinet.org/new/pdf/school_foods_report_card.pdf> (last visited October 27, 2006).

Kentucky limits students to milk, water, juices, and beverages low in sugar out of vending machines or school stores during school hours. S.B. 172, 2005 Reg. Sess. (Ky. 2005).

See Simon Fried , supra note 74.

See e.g., USDA, Food and Nutrition Service, School Success Stories, available at <http://teamnutrition.usda.gov/success.html> (last visited October 27, 2006); USDA, Food and Nutrition Service, Resource Library, available at <http://teamnutrition.usda.gov/Resources/makingithappen.html> (last visited October 27, 2006); Center for Science in the Public Interest, Dispensing Junk, available at http://www.cspinet.org/new/pdf/dispensing_junk.pdf> (last visited October 27, 2006); United States General Accounting Office, School Lunch Program: Efforts Needed to Improve Nutrition and Encourage Healthy Eating , May 2003, available at <http://www.gao.gov/new.items/d03506.pdf> (last visited October 27, 2006).

Simon Fried , supra note 74.

The Library of Congress, THOMAS website, available at <http://thomas.loc.gov/> (last visited October 27, 2006). Search conducted with word “obesity” and “childhood obesity” for legislative sessions. Numbers are current as of September 21, 2006.

Prevention of Childhood Obesity Act, 109th Cong., 1st sess., S. 799. “A bill to amend the Public Health Service Act to provide for the coordination of Federal Government policies and activities to prevent obesity in childhood, to provide for State childhood obesity prevention and control, and to establish grant programs to prevent childhood obesity within homes, schools, and communities.”82. Childhood Obesity Reduction Act, 109th Cong., S. 1324. “A bill to reduce and prevent childhood obesity by encouraging schools and school districts to develop and implement local, school-based programs designed to reduce and prevent childhood obesity, promote increased physical activity, and improve nutritional choices.” Related bill: Childhood Obesity Reduction Act, 109th Cong., H.R. 4860.

IMPACT Act, 109th Cong., S. 1325. 'A bill to establish grants to provide health services for improved nutrition, increased physical activity, obesity and eating disorder prevention, and for other purposes.”84. Healthy Lifestyles and Prevention America Act, 109th Cong., S. 1074. “A bill to improve the health of Americans and reduce health care costs by reorienting the Nation's health care system toward prevention, wellness, and self care.”85. Child Nutrition Promotion and School Lunch Protection Act of 2006, 109th Cong., S. 2592. 'A bill to amend the Child Nutrition Act of 1966 to improve the nutrition and health of schoolchildren by updating the definition of ‘food of minimal nutritional value’ to conform to current nutrition science and to protect the Federal investment in the national school lunch and breakfast programs.”86. Child Nutrition and WIC Reauthorization Act of 2004, § 204, Public Law 108–265, 118 Stat. 729 (codified generally in sections of U.S. Code, vol. 42), available at <http://www.fns.usda.gov/cnd/Governance/Legislation/Historical/PL_108–265.pdf> (last visited October 27, 2006).

Much of the activity is directed from the federal to the local level. Team Nutrition and other federally funded educational outreach efforts have been created to teach parents and other wellness committee members to educate school boards. USDA, Team Nutrition, available at <http://teamnutrition.usda.gov/parents.html> (last visited October 27, 2006).

A joint initiative of the William J. Clinton Foundation and the American Heart Association. Clinton Foundation programs, Alliance for a Healthier Generation, available at <http://www.clintonfoundation.org/cf-pgm-hs-hk-home.htm> (last visited October 27, 2006).

Although the wellness committees and the ABA/Clinton agreement are both quite new, media reports have appeared relating instances in which wellness committees are seeking to provide healthier vending machine options in their school districts. See, e.g., Farnam J. , “ISD 166 to Ban Soda Pop at School,” Cook County News-Herald, June 22, 2006.

See note 67.

Berk C. C. , “Teens Seem to be Losing Interest in Carbonated Drinks Like Colas,” Wall Street Journal, June 22, 2006, at B6B; Hartman H. , “The Death of Soda,” The Hartman Group – Hart-Beat, March 15, 2006, available at <http://www.hartman-group.com/products/HB/2006_03_15.html> (last visited October 27, 2006).

Mayer C. E. , “Lawyers Ready Suit Over Soda Case Being Built Linking Obesity to Sale in Schools,” Washington Post, December 2, 2005, at D02; see Alderman Daynard , supra note 27.

Coca-Cola, PepsiCo, and Cadbury-Schweppes.

Kluger J. , “How Bill Sealed the Soda Deal,” Time 167, no. 20 (May 15, 2006); “Non-diet Sodas to be Pulled from Schools: Major Beverage Companies Sign Deal with Anti-Obesity Advocates,” May 3, 2006, available at <http://www.msnbc.msn.com/id/12604166/> (last visited October 27, 2006).

Contrast the statements by the ABA with the efforts by the local bottlers in Connecticut to defeat a bill that contained some of the strictest beverage guidelines in the nation. Stowe S. , “To Some in Hartford, Coke is a Real Evil Thing,” New York Times, April 7, 2006.

Memorandum of Understanding, available at <http://www.clintonfoundation.org/pdf/062006-hs-hk-beverage-mou.pdf> (last visited October 27, 2006).

E.g., Simon M. , “Soda Deal with Clinton Foundation Latest PR Stunt,” Common Dreams, available at <http://www.common-dreams.org/views06/0505–32.htm> (last visited October 27, 2006).

Child Nutrition Promotion and School Lunch Protection Act of 2006, 109th Cong., S. 2592, H.R. 5167.

U.S. Treasury Department, Exercise and Health (May 7, 1915).

Frank L. , Health and Community Design (Island Press, 2003): At 4.

Id., at 5.

From 1989 to 1993, Congress seemed aware of the issue but did little beyond encouraging general public awareness. For example, the 101st Congress enacted programs such as National Checkup Week and National Weight Loss Month. It first mentioned the obesity epidemic in 1993, when the National Institutes of Health Revitalization Act of 1993 called upon the NIH to research obesity. Although many programs have been proposed at the state and local level, fewer have actually been enacted.

Borja R. R. , “Dance Video Games Hit the Floor in Schools,” Education Week 25, no. 22 (2006): 1–14, at 1.

Lubell J. , “Big Apple Tackles Obesity,” Pediatric News 40, no. 1 (2006): 48.

For example, New York has proposed a tax credit of up to $1,000 for health-related purchases like exercise equipment and gym memberships. Bill A09416 – an act to amend the tax law, in relation to providing a tax credit of up to $1000 for certain health-related problems, cited in Waisanen B. , “Taxing Behavior,” State Legislatures 30, no. 6 (2004): 30–31, at 31.

There are not many studies on the issue, but a few have linked the built environment to obesity. See, e.g., Jackson R. J. Kochtitzky C. , Creating a Healthy Environment: The Impact of the Built Environment on Public Health, available at <http://www.cdc.gov/healthyplaces/articles/Creating%20A%20Healthy%20Environment.pdf> (last visited October 27, 2006). However, it is possible that active people self-select by choosing to live in walkable areas. See Handy , “Self-Selection in the Relationship between the Built Environment and Walking,” Journal of the American Planning Association 72 (2006): 55–74.

Perdue W. C. Gostin L. O. Stone L. A. , “Public Health and the Built Environment: Historical, Empirical, and Theoretical Foundations for an Expanded Role,” Journal of Law, Medicine & Ethics 31 (2003): 557–566.

Corburn J. , “Confronting the Challenges in Reconnecting Urban Planning and Public Health,” American Journal of Public Health 94 (2004): 541–546, at 541.

Perdue W. C. Stone L. A. Gostin L. O. , “The Built Environment and its Relationship to the Public's Health: The Legal Framework,” American Journal of Public Health 93 (2003): 1390–1394, at 1390.

Labbee R. M. , “New Light on the Slaughterhouse Monopoly Act of 1869,” in Louisiana's Legal Heritage, Haas R. F. , ed. (Pensacola, FL: Published for the Louisiana State Museum by Perdido Bay Press, 1983): 143–149.

See Perdue Stone Gostin , supra note 111, at 1390.

See Corburn , supra note 110, at 542.

Perdue Stone Gostin , supra note 111, at 1390.

King A. C. , “Theoretical Approaches to the Promotion of Physical Activity,” American Journal of Preventive Medicine 23, no. 2, Supplement 1 (2002): 15–25.

See Frank , supra note 102, at 3–4.

Urban planner Clarence Perry first proposed the design adopted by the government. See Frank , supra note 102, at 124.

Schaeffer K. H. Sclar E. , Access for All (Columbia University Press, 1975): At 56.

Id., at 6.

Id., at 10, 18, 25, 35, 37, 50.

Snell B. , “American Ground Transport,” Hearings on the Industrial Reorganization Act, S. 1167, Before the Subcommittee on Antitrust and Monopoly of the Committee on the Judiciary, United States Senate, 93rd Cong., 2nd Sess., Part 4A (Washington, D.C.: GPO, 1974).

Adams W. Brock J. W. , “Efficiency, Corporate Power, and the Bigness Complex,” The Journal of Economic Education 21 (1990): 30–50, at 43; see also Snell , supra note 123. A federal court found GM guilty of criminal conspiracy for these actions. United States v. National City Lines , 186 F.2d 562 (7th Cir. 1951).

See Adams Brock , supra note 124, at 42, quoting Owen W. , The Accessible City (Washington, D.C.: Brookings Institution, 1972): At 1.

See, e.g., Littman T. A. , “Economic Value of Walkability,” Victoria Transport Policy Institute (October 12, 2004), available at <http://www.vtpi.org/walkability.pdf> (last visited October 27, 2006).

Walkability is determined both by the physical environment and by other factors such as weather and, most importantly, crime. A high crime rate is a major cause of lack of activity, especially for women. Doyle , “Active Community Environments and Health: The Relationship of Walkable and Safe Communities to Individual Health,” Journal of the American Planning Association 72 (2006): 19–31. Residents of high crime areas are more likely to remain indoors, reducing both walking and outdoor play exercise opportunities for children. Studies have shown that walking increases as the crime rate decreases. The crime rate may also impact a person's general inclination to be active: People who grow up in low crime areas are more likely to walk than those who grow up in high crime areas but later move to safer neighborhoods. Id.

Anderson P. M. Butcher K. F. , Childhood Obesity: Trends and Potential Causes, available at <http://www.futureofchildren.org/information2826/information_show.htm?doc_id=351457> (last visited October 27, 2006), citing Corless J. Ohland G. , Caught in the Crosswalk: Pedestrian Safety in California, Surface Transportation Policy Project Report (San Francisco: Surface Transportation Policy Project, 1999), available at <www.transact.org/ca/caught99/caught.htm> (last visited October 27, 2006).

See Anderson Butcher , supra note 128, citing B. Russonello and Stewart Research and Communications, Americans' Attitudes toward Walking and Creating Better Walking Communities, Surface Transportation Policy Project Report (Washington: B. Russonello & Stewart Research and Communications, 2003), available at <http://www.transact.org/report.asp?id=205/> (last visited October 27, 2006). An additional 6% mentioned crime as a reason. Id.

Interestingly, mention of the connection between obesity and the built environment did not appear in the Congressional record until 2001, House of Representatives, “Bicycle Riding is Efficient Means of Transportation and Promotes Wellness,” March 13, 2001, although a recently proposed bill does address the issue. Sen. Barack Obama and Rep. Hilda L. Solis, Healthy Places Act of 2006.

See Doyle , supra note 127, at 20. For example, on one Atlanta highway, there were 34 pedestrian deaths and 305 injuries in a recent nine-year period. Copeland L. El Nasser H. , “Georgia Tries to Improve Deadly Road for Walkers,” USA Today, May 4, 2006, available at <http://www.usatoday.com/news/nation/2006-04-05-suburban-roads_x.htm> (last visited October 27, 2006).

Frank L. D. , “Many Pathways from Land Use to Health: Associations between Neighborhood Walkability and Active Transportation, Body Mass Index, and Air Quality,” Journal of the American Planning Association 72 (2006): 75–87.

Id.; Littman , supra note 126.

See Frank , supra note 132.

Rodriguez D. A. Khattak A. J. Evenson K. R. , “Can New Urbanism Encourage Physical Activity? Comparing a New Urbanist Neighborhood with Conventional Suburbs,” Journal of the American Planning Association 72 (2006): 43–54, at 43.

For example, by walking three miles a day (or about one hour), children would only burn an extra 260 calories per day. Williams L. , “Small Changes Not Enough to Halt Childhood Obesity,” available at <http://www.bcm.edu/findings/vol2/is1/04jan_n3.htm> (last visited October 27, 2006).

See sections IV and V for a discussion of the regulatory environment.

McGinnis J. M. Gootman J. A. Kraak V. I. , eds., Food Marketing to Children and Youth: Threat or Opportunity? (Washington, D.C.: National Academies Press, 2006).

Roden S. Goodsell D. , Krazy Kids' Food! Vintage Food Graphics (Germany: Taschen, 2003). Post Cereals licensed Mickey Mouse, who first appeared on a box of Post Toasties in 1935.

Preston E. White C. L. , “Commodifying Kids: Branded Identities and the Selling of Adspace on Kids' Networks,” Communication Quarterly 52 (Spring 2004): 115–128. This article discusses the enormous growth of the children's advertising market that led to its segmentation, first by gender and later by age groups (including the newly minted “tweens” category). The authors note that children's marketing increasingly mimics adult segmentation such as distinctions between heavy and light users.

Comiteau J. , “When Does Brand Loyalty Start?” Adweek, March 24, 2003. “[J. U.] McNeal states that in 2000, American children age 4–12 spent $30 billion of their own money, directly requested about $310 billion of purchases by parents, and indirectly influenced another $340 billion of parental spending, making them responsible for a whopping $680 billion of household spending per year.” California Panethnic Health Network and Consumers Union, “Out of Balance,” September 2005, footnote 52, available at <http://www.consumersunion.org/pdf/OutofBalance.pdf> (last visited October 27, 2006).

The program was “Captain Kangaroo,” an educational variety show for preschool children which aired from 1955 to 1984.

Westen T. , “Historical Perspective on FTC Rulemaking and Why It Failed,” presented at Loyola Law School Symposium on Food Marketing to Children and the Law, Los Angeles, October 21, 2005, available at <http://events.lls.edu/food-marketing-lr.html> (last visited October 27, 2006).

Kaiser Family Foundation, Issue Brief, The Role of Media in Childhood Obesity (Menlo Park, CA: Henry J. Kaiser Family Foundation, 2004), available at <http://www.kif.org/entmedia/7030.cfm> (last visited November 30, 2006).

Editorial, “Selling To – and Selling Out – Children,” Lancet 360 (2002): At 959; Horgen K. Choate M. Brownell K. , “Television Food Advertising. Targeting Children in a Toxic Environment,” in Singer D. G. Singer J. L. , eds., Handbook of Children and the Media (Thousand Oaks, CA: Sage, 2001): 375–93.

National Advertising Review Council, White Paper: Guidance for Food Advertising Self-Regulation (2004) available at <http://www.narcpartners.org/reports/whitepaper.asp> (last visited October 27, 2006).

See Engle M. K. , Associate Director, Division of Advertising Practices, Federal Trade Commission, Regulating Food Advertising to Children: An Historical Perspective , presentation at the IOM Meeting on Food Marketing and the Diets of Children and Youth, October 14, 2004, available at <http://www.iom.edu/Object.File/Master/23/031/0.pdf> (last visited October 27, 2006) (providing an historical overview of the FTC's regulation of food advertising to children from the agency's current perspective).

FTC Staff Report on Television Advertising to Children, February, 1978, quoting statistics from National Science Foundation, Research on the Effects of Television Advertising on Children (1977) and A.C. Nielsen Company, Inc., The Television Audience (1977).

A 1965 panel focusing on children's advertising, moderated by former FTC chairman Newton Minow, debated “whether advertisers ‘are using five year olds to pressure parents into buying their products.’” Gavin J. M. , “Panel Doesn't Kid Around about Effectiveness of Children's Ads,” Chicago Tribune, July 13, 1965, at C8. A subsequent FTC chair, Lewis Engman, chastised the ad industry, already spending $400 million in the early 1970s on children's advertising, for its lack of effective self-regulatory standards. He predicted: “If television advertising…fosters dietary habits which endanger their health .I think TV ads directed at children will soon find itself circumscribed by legal restrictions and legal requirements.” Shifrin C. , “A Look at Children's TV Advertising,” Washington Post, August 7, 1973, at B4. Minow subsequently wrote a scathing indictment of the FTC and industry's failure to adequately protect children. Minow N. LaMay C. , Abandoned in the Wasteland: Children, Television, & the First Amendment (New York: Hill and Wang, 1996).

See Preston White , supra note 140, at 115–128.

Program and Committee Staff, New York State Assembly, “Kids, Food and Television: The Compelling Case for State Action,” March, 1977. The staff monitored television commercials on Saturday morning programs for children and conclude that “most of the commercials shown during children's programming are for food products – most of them highly sugared – highly processed food products.”152. Testimony by nutritionists, dentists, and doctors on the negative health impacts of advertising foods led the Committee's conclusion that “[t]elevision advertises food to children which is bad for children's health…and are linked to major medical problems including obesity, diabetes, and heart disease.” Id., at 60–61. Many of the arguments currently offered in support of government regulation of children's advertising from a public health standpoint were already substantially developed decades ago.

Uscinski H. J. Comment , “Deregulating Commercial Television: Will the Marketplace Watch Out for Children?” American University Law Review 34 (1984): 141–173, at 147 (noting that a public interest group, Action for Children's Television (ACT), petitioned the Federal Communications Commission (FCC) for commercial advertising regulations in 1970). Another advocacy group, the Committee on Children's Television, brought suit in California against General Foods and other businesses that advertised sugary breakfast cereals to children. Comm. on Children's Television, Inc. v. General Foods, Corp., 673 P. 2d 660, 663–64 (Cal. 1983). The case settlement included the creation of a health program that still exists today. See Jacobson M. F. , “Tipping the Scales: Recipe for Reducing American Obesity Lists Labels, Legislation, and Litigation,” Legal Times, March 1, 2004, at 34 (stating that the settlement allotted $2 million to the creation of a children's health organization).

Both agencies derive their authority to regulate advertising from the Commerce Clause of the Federal Constitution, which grants the federal government jurisdiction over commerce among states. The legal implications of Commerce Clause authority will be discussed in Part V. In 1974, CSPI (unsuccessfully) petitioned the FDA to require health warning labels on sugary cereals. Rice W. , “Proposing a Public Caveat on Sugar Cereals,” Washington Post, August 2, 1974, at B1. Michael Jacobson had proposed that cereals that contained more than 10 percent sugar would have to be promoted as a snack rather than a breakfast cereal and carry a label stating “Contains….% Sugar[.] Frequent Use Contributes to Tooth Decay and Other Health Problems.” Id. This predated the NLEA. At the time, cereal companies' practices differed with regard to the disclosure of sugar content in cereals and other foods.

Children's Television Report and Policy Statement, 50 F.C.C. 2d 1 (1974) (“1974 Policy Statement”), ajf'd, Action for Children's Television v. FCC, 564 F.2d 458 (D.C. Cir. 1977).

Pertschuk's evaluation of the proceedings appear in Pertschuk M. , Revolt Against Regulation: The Rise and Pause of the Consumer Movement (University of California Press, October 1982).

Zoglin R. , “The Coming Battle Over TV Ads for Kids,” New York Times, January 1, 1978, at D1.

For example, in 1975 the Federal Trade Commission (FTC) proposed a ban on television advertising of premiums directed at children. Annual report of the Federal Trade Commission, 1975, available at <http://www.ftc.gov/os/annualreports/ar1975.pdf> (last visited October 27, 2006). The use of premiums to sell products to children has long been a bane of government and industry regulators. See Children's Advertising Review Unit, Sweepstakes Directed to Children, available at <http://www.caru.org/news/sweepstakes.asp> (last visited October 27, 2006). Nevertheless, advertisers continue to use premiums to lure children to their products. Fried E. , “Assessing Effectiveness of Self-Regulation: A Case Study of the Children's Advertising Review Unit,” Loyola of Los Angeles Law Review 39 (2006): 93–138.

CARU was founded in 1974 as part of an alliance formed by the major advertising trade associations through the National Advertising Review Council. CARU, About the Children's Advertising Review Unit (CARU), available at <http://www.caru.org/about/index.asp> (last visited October 27, 2006). It is the “children's arm of the advertising industry's self-regulation program.” See also Armstrong G. M. , “An Evaluation of the Children's Advertising Review Unit,” Journal of Public Policy & Marketing 3 (1984): 38–55, at 40.

“Advertisers Slate Unit to Better Police their Pitch to Kids: FTC, Consumer Groups Say Industry Plan Doesn't Go Far Enough to Suit Them,” Wall Street Journal, May 21, 1974, at 14.

An advertisement can be unfair without being deceptive: That is, it may truthfully depict a product and its attributes. What makes it unfair is that 1) children don't realize it is a sales pitch, or 2) that the product could ultimately lead to health-related problems such as cavities, poor nutrition, or obesity.

Kunkel D. , “Children and Television Advertising,” in Singer D. G. Singer J. L. , eds., Handbook of Children and the Media (Thousand Oaks, CA: Sage, 2001): 375–93.

FTC, FTC Staff Report on Television Advertising to Children, Recommendation: That the Commission Commence Rulemaking under Applicable Provisions of the Magnuson-Moss Federal Trade Commission Improvements Act to Eliminate Harms Arising Out of Television Advertising to Children, February 1978.

Editorial, “The FTC as National Nanny,” Washington Post, March 1, 1978, at A22. This branding of the FTC's effort was viewed as the point at which public opinion turned against the FTC's regulatory efforts.

Jennings P. , “How to Get Fat Without Really Trying,” Primetime Monday, ABC News Special, December 8, 2003.

In 1982, Timothy J. Muris, then Director of the FTC's Bureau of Consumer Protection, wrote: “When we arrived at the Commission, there was disrespect for the agency among businesses, on Capitol Hill, and in the legal community. This disrespect was well-earned. The Commission in the 1970s saw itself as the second most powerful legislature in Washington. The leaders of the previous administration had a deep distrust for business. Ill-considered proceedings resulted, such as the infamous children's advertising rulemaking.” Muris T. J. , “The Consumer Protection Mission: Guiding Principles and Future Direction,” Antitrust Law Journal 51 (1982): 625–632, at 625; see also Applbaum A. , Mike Pertschuk and the Federal Trade Commission (John F. Kennedy School of Government, Harvard University, 1981).

The staff proposed several alternatives: Ban all TV for any product young children below the age of 8, ban ads for sugared products for children below the age of 12, and require that TV ads aimed at children older than 12 be balanced by nutritional or health disclosures. Each of these recommendations focused upon an environmental solution to prevent childhood disease by preventing television advertisements from entering the home as a public health intervention rather than requiring parents to act as a human shield against the bombardment. See FTC Staff Report on Television and Advertising to Children, supra note 163.

Termination of rulemaking proceeding, 46(191) Fed. Reg. 48710–02 (1981).

Federal Trade Commission Improvements Act of 1980, Public Law 96–252, § 11, 94 Stat. 374 (amending 15 U.S.C. § 57a (1994)). The FTC Improvement Act of 1980, Public Law 96–252, 94 Stat. 378 (1980) added a section to the FTC Act which denies the Commission the “authority to promulgate any rule in the children's advertising proceeding…or in any substantially similar proceeding on the basis…that such advertising constitutes an unfair act or practice….” FTC Act § 18(i), 15 U.S.C. § 57(a) (i) (1976).

Although CARU points to its ability (and sole “enforcement” mechanism) to refer cases it cannot satisfactorily resolve to the FTC, few are actually referred and barely any are initiated by the FTC. Kelley B. , Public Health Advocacy Institute, Industry Controls Over Food Marketing to Children: Are They Effective? (2005), available at <http://www.phaionline.org/downloads/caru.analysis.pdf> (last visited November 30, 2006).

Westen T. , “Historical Perspective on FTC Rulemaking and Why It Failed,” paper presented at Loyola Law School Symposium on Food Marketing to Children and the Law, Los Angeles, October 21, 2005, available at <http://events.lls.edu/food-marketing-lr.html> (last visited October 31, 2006).

Nestle M. , “Food Marketing and Childhood Obesity – A Matter of Policy,” New England Journal of Medicine 354 (2006): 2527–2529.

Lang T. Rayner G. Kaelin E. , The Food Industry, Diet, Physical Activity and Health: A Review of Reported Commitments and Practice of 25 of the World's Largest Food Companies (London: Centre for Food Policy, City University, April 2006), available at <http://www.city.ac.uk/press/The%20Food%20Industry%20Diet%20Physical%20Activity%20and%20Health.pdf> (last visited October 31, 2006).

Nestle points out that the scramble for a healthy product portfolio has resulted in “vitamin-enriched candy, whole-grain chocolate cereals, and trans fat-free salty snacks.” See Nestle , supra note 172, at 2529.

See Kaiser Family Foundation, supra note 144.

Report on a Joint Workshop of the Federal Trade Commission and the Department of Health & Human Services, Perspectives on Marketing, Self-Regulation, & Childhood Obesity (April 2006), available at <http://www.ftc.gov/os/2006/05/PerspectivesOnMarketingSelf-Regulation&ChildhoodObesityFTCandHHSReportonJointWorkshop.pdf> (last visited October 31, 2006). Further, David Yosifon has proposed that advertising be required to adopt a “tombstone” format with a basic black-and-white, text only graphic. See Yosifon D. , supra note 6.

See Nestle , supra note 172, at 2529.

Hawkes C. , Marketing Food to Children: The Global Regulatory Environment (Geneva: World Health Organization, 2004), available at <http://whqlibdoc.who.int/publications/2004/9241591579.pdf> (last visited October 31, 2006).

“FSA Board Responds to Ofcom Consultation,” June 15, 2006, available at <http://www.food.gov.uk/news/newsarchive/2006/jun/oftcom> (last visited October 31, 2006).

“The FAU Challenges the FSA Board's Call to Ban Food and Drink Advertising Before 9 pm,” June 15, 2006, available at <http://www.fau.org.uk/html/15_june_2006.html> (last visited October 31, 2006).

Daniells S. , “Junk Food Legal Action Stopped by Heart Charity,” June 23, 2006, available at <http://www.nutraingredients.com/news/ng.asp?n=68627-junk-food-children-ofcom> (last visited October 31, 2006).

McGinnis J. M. Gootman J. A. Kraak V. I. , eds., Food Marketing to Children and Youth: Threat or Opportunity? (Washington, D.C.: National Academies Press, 2006).

Federal Trade Conferences, “Remarks at the Obesity Liability Conference,” Chicago, May 11, 2005, available at <http://www.ftc.gov/speeches/majoras/050511obesityliability.pdf> (last visited October 31, 2006).

Part V will include a more detailed discussion of this phenomenon, known as “deep capture.”185. See Center for Science in the Public Interest, Press Release, Parents and Advocates Will Sue Viacom & Kellogg , Washington, D. C., January 18, 2006, available at <http://www.cspinet.org/new/200601181.html> (last visited October 31, 2006).

Senator Tom Harkin's HeLP America Act, S. 1074, would restore the FTC's unfairness jurisdiction in rulemaking for children's advertising; the authority was removed by the U.S. Congress in the FTC Improvement Act.

Campaign for a Commercial-free Childhood website, “Urge Congress to Restore the FTC's Authority,” available at <http://www.commercialexploitation.org/actions/ftc.htm> (last visited October 31, 2006); American Psychological Association, Report of the APA Task Force on Advertising and Children (Washington, D.C.: APA, 2004), available at <http://www.apa.org/releases/childrenads.pdf> (last visited October 31, 2006).

Compare Editorial, “Selling Junk Food to Toddlers,” New York Times, February 23, 2006, which chastises government for ignoring adverse impact of children's television advertising, with Washington Post “national nanny” editorial (note 164).

Perspectives on Marketing, Self-Regulations, and Childhood Obesity, A report on a joint workshop of the Federal Trade Commission and the Department of Health and Human Services (April 2006).

Story M. French S. , “Food Advertising and Marketing Directed at Children and Adolescents in the U.S.,” International Journal of Behavioral Nutrition and Physical Activity 1 (2004): At 3, available at <http://www.ijbnpa.org/content/pdf/1479-5868-1-3.pdf> (last visited November 30, 2006).

Deficit Reduction Act of 2005, Pub. L. No. 109–171, 109th Cong., S. 1932, Title III, sec. 3002.

Children Now, Digital Television: Sharpening the Focus on Children , Conference Report, Oakland, CA., available at <http://publications.childrennow.org/assets/pdf/cmp/digital-tv/dtv-report-04.pdf> (last visited October 31, 2006).

Children Now, Interactive Advertising and Children: Issues and Implications , Oakland, CA., available at <http://www.childrennow.org/assets/pdf/issues_media_iadbrief_2005.pdf> (last visited October 31, 2006).

See Charting the Digital Broadcast Future , Final Report of the Advisory Committee on Public Interest Obligations of Digital Television Broadcasters, December 18, 1998, available at <http://www.ntia.doc.gov/pubintadvcom/piacreport.pdf> (last visited October 31, 2006).

See Children's Television Obligations of Digital Television Broadcasters, Notice of Proposed Rulemaking, 15 FCC Rcd 22946, 22950 (10) (2000) (“NPRM”).

Id., at 22958.

Children's Television Obligations of Digital Television, Report and Order, 19 FCC Rcd 22943 (2004) (“Order”), rule effective date extended by Children's Television Obligations of Digital Television Broadcasters, 20 FCC Rcd 2055 (2005).

Order Extending Effective Date, FCC 05–211 at 1, MM Docket No. 00–167 (Rel. December 16, 2005).

Motion of Viacom, Walt Disney, NBC Universal, and NBC Telemundo for Extension of Effective Date or, in the Alternative, Administrative Stay at 1, In the Matter of Children's Television Obligations of Digital Television Broadcasters (Federal Communications Commission) (No. 00–167) (September 26, 2005) (“Motion”).

Office of Communication of the United Church of Christ, Inc. v. FCC, No. 05–4189 (6th Cir., filed September 26, 2005); Viacom, Inc. v. FCC, No. 05–1387 (D.C. Cir., filed October 3, 2005).

In re Walt Disney, No. 05–1393 (D.C. Cir., filed October 11, 2005).

Motion of Viacom, Walt Disney, NBC Universal, and NBC Telemundo (see supra note 199); Viacom, Inc. v. FCC, No. 05–1387 (D.C. Cir., filed October 3, 2005).

Office of Communication of the United Church of Christ, Inc. v. FCC, No. 05–4189 (6th Cir., filed September 26, 2005).

In the Matter of: Children's Television Obligations of Digital Television Broadcasters; MM Docket No. 00–167, Joint Proposal of Industry and Advocates on Reconsideration of Children's Television Rules, available at <http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-06-33A2.pdf> (last visited October 31, 2006).

Order Extending Effective Date, FCC 05–211 at 1, MM Docket No. 00–167 (Rel. December 16, 2005).

Second Further Notice of Proposed Rule Making, FCC 06–33, MM Docket No. 00–167 (Rel. March 24, 2006).

In its Motion the industry relies on a series of cases to show irreparable harm. What is interesting is the industry's reliance on cases that involve political speech on the part of individuals. Industry seeks to collapse the appropriate distinction between the reduced protections for commercial speech and the high protections afforded the political speech of citizens. Elrod v. Burns, 427 U.S. 347 (1976) and Newsom v. Norris, 888 F. 2d 371 (6th Cir. 1989), cited in Motion at 27. While this language can be partially attributed to zealous advocacy, such an absolutist position by commercial interests is not uncommon.

See, e.g. Respondents brief in opposition to Motion for Stay Pending Judicial Review at 12, Viacom, Inc. v. Federal Communications Commissions and the United States of America, (No. 05–1387) (D.C. Cir.) (October 27, 2005) (citing Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n., 447 U.S. 557, 564–66 (1980)), available at <http://www.fcc.gov/ogc/briefs/05-1387-102705.pdf> (last visited October 31, 2006); Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557, 564–66 (1980).

Collapsing the distinction between commercial speech and non-commercial speech and subjecting both to the same judicial scrutiny would undermine the state's ability to protect the health and welfare of the population. See Parmet Smith , supra note 27.

See Testimony of Dick O'Brien, American Association of Advertising Agencies, Joint Workshop of FTC and HHS, Perspectives on Marketing, Self-Regulation and Childhood Obesity , July 14, 2005, at 79, available at <http://www.ftc.gov/bcp/workshops/foodmarketingtokids/transcript_050714.pdf> (last visited October 31, 2006).

See, e.g., Terilli S. , “Nike v. Kasky and the Running-but-Going-Nowhere Commercial Speech Debate,” Communications Law & Policy 10 (2005): 383–432.

Research International USA, “Bad News for Lawyers: We're Responsible for Our Own Fat,” September 24, 2003, available at <http://www.globeinvestor.com/servlet/ArticleNews/story/PRNEWS/20030924/2003_09_24_10_4919_1008980> (last visited October 31, 2006).

Harris Interactive/Kid Power Poll of Youth Marketers, February 2004, available at <http://www.harrisinteractive.com/services/pubs/KidPower_Poll_Results.pdf> (last visited October 31, 2006). Fifty-eight percent of the marketers polled believe that there's too much marketing and advertising directed to children; sixty-one percent agree that marketing to children starts at too young an age. Youth marketers feel it is appropriate to begin marketing to kids at age seven. Harris Interactive online, Trends and Tudes , April 3, 2004, available at <http://www.harrisinteractive.com/news/newsletters/k12news/HI_Trends&TudesNews2004_v3_iss04.pdf> (last visited October 31, 2006).

On the question of whether litigation should be employed as a means to force reformulation of fast foods or more complete and available nutritional information, industry promotes the oftcited statistic that 89% of consumers “strongly disagree that lawsuits should be slowed against fast food chains” as a means of combating obesity. Fifty-four percent of those polled “believe that the individual, and not the corporation, is solely responsible for healthy eating.” That leaves a sizable forty-six percent casting a critical eye on corporate responsibility. Fried E. , in Crawford D. Jeffrey R. , eds., “The Potential for Policy Initiatives to Address the Obesity Epidemic: A Legal Perspective from the United States,” in Obesity Prevention in the 21st Century: Public Health Approaches to the Obesity Pandemic (London: Oxford University Press, 2005): 265–283.

Pelman v. McDonald's, often derided as frivolous and the catalyst for legislation that shields the food industry from litigation based on claims of obesity, continues its journey through the courts four years after its predicted dismissal; claims of deceptive advertising remain to be adjudicated. Pelman v. McDonald's Corp., 396 F.3d 508 (2nd Cir. 2005); motion granted by Pelman v. McDonald's Corp., 2005 U.S. Dist. LEXIS 24869 (S.D.N.Y. 2005) .

Center for Consumer Freedom, “Lawyer Grills Girl, Sues Scout,” available at <http://www.consumerfreedom.com/advertisements_tv.cfm> (last visited October 31, 2006).

D. J. Popeo and the Washington Legal Foundation, “WARNING: Beware of Activists, Plaintiffs' Lawyers, and State AGs who Use Children and Public Health to Attack Free Enterprise,” November 21, 2005, available at <http://www.wlf.org/upload/112105IAFWarning.pdf> (last visited October 31, 2006); D. J. Popeo and the Washington Legal Foundation, “Exploiting Beer, Liquor & Food,” April 25, 2005, available at <http://www.wlf.org/upload/042505IAFBeer.pdf> (last visited October 31, 2006) .

National Restaurant Association, 2005 State Legislative Review, available at <http://www.restaurant.org/pdfs/government/2005StateLegislativeReview.pdf>; see also Public Health Advocacy Institute, “Legislation: Stop Special Protection for Industry,” available at <http://www.phaionline.org/projects_legis.intro.php> (last visited October 31, 2006).

See Alderman Daynard , supra note 27.

See Part V for a more complete discussion of litigation as a public health strategy.

See Mariner , supra note 31, at 281.

See Parmet Banthin , supra note 27, at 84.

US Const, Art I, § 8, cl 3.

For a discussion of several of these cases, see Parmet W. , “After September 11: Rethinking Public Health Federalism,” Journal of Law, Medicine & Ethics 30 (2002): 201–211, at 204.

See, e.g., Kassel v. Consolidated Freightways Corp. of Delaware , 450 U.S. 662 (1981).

See, e.g., id. (invalidating state law mandating that highway trucks be no more than 60 feet long as a burden on interstate commerce); see Parmet Banthin , supra note 27 (discussing the difficulty of effectively controlling internet tobacco sales under modern dormant commerce clause doctrines); Allen D. M. Annotation , “Validity Under Commerce Clause (Art I, §8, cl 3), of State Statutes Regulating Labeling of Food,” American Law Reports Federal 79 (2006): 246–272.

Preemption was an issue when public health advocates tried to protect the public by restricting smoking. The tobacco industry sometimes supported statewide anti-tobacco laws because the laws were weakened by political compromise and preempted stricter local measures. Siegel M. , “Preemption in Tobacco Control: Review of an Emerging Public Health Problem,” JAMA 278 (1997): 858–863. This could also become a problem with obesity-related laws.

See, e.g., Allen D. M. Annotation , “Federal Pre-Emption of State Food Labeling Legislation or Regulation,” American Law Reports Federal 79 (2006): 181–206.

Protection of public health has been and is a long-standing role of state and federal governments that has been a long-understood facet of state power. Public health has a rightful and traditional role in shaping the relations of the states and the federal government. See, e.g., Parmet W. , “From Slaughter-House to Lochner: The Rise and Fall of the Constitutionalization of Public Health,” American Journal of Legal History 40 (1996): 476–505.

See Mariner , supra note 31, at 279.

See section IV.

Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n , 447 U.S. 557 (1980).

Gostin Compare L. , “When Terrorism Threatens Health: How Far are Limitations on Personal and Economic Liberties Justified?” Florida Law Review 55 (2003): 1105–1170; with Parmet W. E. , “Liberalism, Communitarianism, and Public Health: Comments on Lawrence O. Gostin's Lecture,” Florida Law Review 55 (2003): 1221–1240; and see Mariner , supra note 31. Also see Daynard R. A. , “Regulating Tobacco: The Need for a Public Health Judicial Decision-Making Canon,” Journal of Law, Medicine & Ethics 30 (2002): 281–289 (discussing the importance of judicial training to ensure that courts can recognize this tension when presented with it).

See, e.g., Press Release, The White House, Office of the Press Secretary, Remarks by the President in Apology for Study Done in Tuskegee (May 16, 1997) (President Clinton apologizes to survivors of Tuskegee Study for behavior of United States government) [on file with author]; Buck v. Bell, 274 U.S. 200 (1927) (allowing forced sterilization of “feeble-minded” woman).

See Parmet Smith , supra note 27.

See Alderman Daynard , supra note 27, at 84.

Id., at 84–85. It is also important to mention the transaction costs of litigation. Facing large expenses and small awards, many lawyers may be reluctant to bring such lawsuits even if they are highly beneficial to the public. Brunet E. , “Debunking Wholesale Private Enforcement of Environmental Rights,” Harvard Journal of Law & Public Policy 15 (1992): 311–324, at 313. Likewise, if fees are too high, lawyers may encourage clients to bring cases of limited merit. Further, causation requirements and damage calculation in tort law are designed for individual plaintiffs. See Smith , “Setting the Stage,” supra note 11. Class actions may help address this problem, but they are not always appropriate for plaintiffs whose exposure to an agent or severity of disease varies, eg., Lin A. , “Beyond Tort: Compensating Victims of Environmental Toxic Injury,” Southern California Law Review 78 (2005): 1439–1528, at 1516–1517, and can end up benefiting lawyers more than class members. Coffee J. C. Jr. , “Understanding the Plaintiff's Attorney: The Implications of Economic Theory for Private Enforcement of Law through Class and Derivative Actions,” Columbia Law Review 86 (1986): 669–727, at 678–79.

Pelman v. McDonald's is a good example. The court dismissed many of the plaintiff's individually-focused claims but allowed a consumer protection claim based on harmful advertising to proceed. The court ruled that the plaintiffs did not need to allege highly specific causation, only a general connection between their injuries and McDonald's conduct. Pelman v. McDonald's Corp., 396 F.3d 508 (2nd Cir. 2005). The court thus directed the plaintiffs' focus to broader issues than their own personal experiences. See Smith , “Setting the Stage,” supra note 11.

See, e.g., Connecticut Light & Power Co. v. Secretary of Labor , 85 F.3d 89, 96 (2d Cir. 1996) (invalidating a clause in a utility worker's settlement agreement that undermined federal whistleblower protection law); United States v. Northrop Corp., 59 F. 3d 953, 968 (9th Cir. 1995), cert. denied; Northrop Grumman Corp. v. United States ex rel. Green, 518 U.S. 1018 (1996) (invalidating a clause prohibiting an employee from exposing violations of the federal False Claims Act); Bowman v. Parma Board of Education, 542 N.E.2d 663, 666 (Ohio Ct. App. 1988) (invalidating secrecy provision that sought to bind school district to silence regarding pedophilia investigation of teacher).

Advocates and the public need information to ascertain the true costs of health-affecting behaviors, eg., Givelber D. Robbins A. , “Public Health Versus Court-sponsored Secrecy,” Law and Contemporary Problems 69, no. 3 (2006): 131–139, available at <http://www.law.duke.edu/shell/cite.pl?69+Law+&+Contemp.+Probs.+131+ (summer+2006)> (last visited November 30, 2006), and if there is enough causation to settle, there may also be enough to necessitate action on the part of public health officials. Id. Settlements may be beneficial to plaintiffs, who can then avoid a long and expensive lawsuit, and to defendants, who can reduce exposure that would lead to future litigation or regulation, but they pose a problem for the public. For example, an asbestos producer settled with 11 plaintiffs in 1933 but continued to use asbestos for the next 40 years because the settlement was unknown to the government or to the public. Id.

See Smith , “Setting the Stage,” supra note 11.

Here we to refer to not only the food industry as corporations but also to business associations, trade groups, and self-regulatory bodies that represent purely free market interests and public interests secondarily if at all.

Dodge v. Ford Motor Co. , 170 N.W. 668 (Mich. 1919) For the modern expression of this principle see, e.g., 1 Principles of Corporate Governance §2.01 (1992).

See Yosifon , supra note 6.

In the Civil War era, consumers enforced their rights mostly through private litigation, suing tort law to protect their property. Courts were resistant to governmental regulation (as in Lochner), and when regulation did occur it was highly susceptible to corruption, such as bribery. Glaeser E. L. Shleifer A. , “The Rise of the Regulatory State,” Journal of Economic Literature XLI (2003): 401–425, at 404–05. Regulatory oversight began slowly beginning in the late 1860s and greatly expanded during the first two decades of the 19th century. Examples include the Interstate Commerce Act of 1887 (restricting railroad contracts), the Sherman Act of 1890 (establishing federal oversight of monopolies and trusts), the Pure Food and Drug law of 1906 (controlling the sale of medicine), the Federal Reserve Act of 1913 (implementing controls on banking), and the Clayton Act of 1914 (further regulating monopolies). Id. However, during World War I, though the federal government continued to pass laws controlling industry, support for regulation again decreased as efficiency of production became the primary goal. The head of the Food Administration at this time, Herbert Hoover, viewed the role of regulatory agencies as facilitating cooperation between private entities. Rabin R. L. , “Federal Regulation in Historical Perspective,” Stanford Law Review 38 (1986): 1189–1326, at 1235–1237. In the 1920s, regulations were oriented more towards allowing government and industry to work together. Id., at 1235–41.

See Glaeser Shleifer , supra note 245.

Administrative Procedures Act of 1946; see Rabin , supra note 245, at 1265.

See Rabin , supra note 245, at 1272. In the Civil War era, consumers enforced their rights mostly through private litigation, using tort law to protect their property. Courts were resistant to governmental regulation, and when regulation did occur it was highly susceptible to corruption, such as bribery.

Some postulated that industry capture of agencies made regulation inefficient and ineffective. Hanson J. Yosifon D. , “The Situation: An Introduction to the Situational Character, Critical Realism, Power Economics, and Deep Capture,” University of Pennsylvania Law Review 152 (2003): 129–346, at 203–04. However, powerful entities like the Teamsters opposed deregulation, as did Congress. Moore T. G. , “Moving Ahead,” Regulation 25, no. 2 (2002): 6–13, at 6–7. But in general, the public was opposed to regulation: “[T]he deregulation movement was…a one-shot response to the peculiar political conditions of the late 1970s[:]…disillusion[ment] with the efficacy of government intervention.” Peltzman S. , “The Economic Theory of Regulation after a Decade of Deregulation,” Brookings Papers on Economic Activity, Special Issue (1989): 1–59, at 2.

For example, the Motor Carrier Act of 1980 relaxed licensing requirements for the trucking industry. See Moore , supra note 249, at 6–10.

From the late 1970s to the late 1980s, the market rose to global prominence. Capitalism began to spread throughout developing countries, socialist regimes fell, and in the United States LBOs and hostile takeovers “washed away…many of the failed conglomerates.” Gilson R. J. Kraakman R. , “Takeovers in the Boardroom: Burke versus Schumpeter,” Business Lawyer 60 (2005): 1419–1433, at 1433.

Rubin E. L. , “The Myth of Accountability and the Anti-Administrative Impulse,” Michigan Law Review 103 (2005): 2073–2136, at 2081; see also Mayer C. E. , “How 5 Agencies are Changing Direction; Five Federal agencies Re-Examine Consumer-Protection Programs,” Washington Post, November 1, 1981, at H1.

Croley S. , “White House Review of Agency Rulemaking: An Empirical Investigation,” University of Chicago Law Review 70 (2003): 821–885, at 824–825.

Some commentators credited deregulation with the creation of massive wealth in the United States. See, e.g., Barnard B. , “Freeing Europe's Economy: Deregulation Could Save Europeans Billions but Proponents Worry the Drive to Cut Red Tape is Running Out of Steam,” Europe (April 2002): 16–17 (comparing the growth in the 1990s of the deregulated American economy to that of heavily-regulated Europe). In the 1970s and 1980s, many supporters of deregulation argued that regulating industries, whether through price controls, licensing, or setting minimum standards, inhibits competition and leads to economic inefficiency. See Rabin , supra note 245, at 1317–1318. Some see the growth of the American economy in the 1990s as a vindication of this viewpoint. As public trust in industry increased, industry has become bolder, emphasizing “self-regulation and voluntary compliance.” Estlund C. , “Rebuilding the Law of the Workplace in an Era of Self-Regulation,” Columbia Law Review 105 (2005): 319–404, at 340–341. Nonetheless, deregulation is hardly a simple solution. Some scholars believe that deregulation in one sector of the economy can lead to “bottlenecks and market imperfections” in other sectors, necessitating further regulation. Rose-Ackerman S. , “Defending the State: A Skeptical Look at ‘Regulatory Reform’ in the Eighties,” University of Colorado Law Review 61 (1990): 517–535, at 520–22 (discussing the airline deregulation efforts).

Such scandals include The Savings and Loan crisis and more recent incidents involving Worldcom and Enron. Kahn F. S. , “Bombing Markets, Subverting the Rule of Law: Enron, Financial Fraud, and September 11, 2001,” Tulane Law Review 76 (2002): 1579–1643, at 1623, n. 123.

Gerding E. F. , “The Next Epidemic: Bubbles and the Growth and Decay of Securities Regulation,” Connecticut Law Review 38 (2006): 393–450, at 393–394.

Economist George Stigler first introduced the notion of capture. Stigler G. , Memoirs of an Unregulated Economist (New York: Basic Books, 1988): At 8.

Jon Hanson and David Yosifon referred to Stigler's concept as “shallow capture” and coined the term “deep capture” to develop the concept further. See Hanson Yosifon , supra note 249, at 218.

See Hanson Yosifon , supra note 249, at 157.

Id., at 214, 220–223.

Id., at 299–303.