Law as a Tool in “The War on Obesity”: Useful Interventions,Maybe,But,First,What's the Problem?

Campos P. , “Anti-Obesity Ads Won't Work by Telling Kids to Stop Being Fat,” Daily Beast (United States), January 4, 2012, available at <http://www.thedailybeast.com/articles/2012/01/04/anti-obesity-ads-won-t-work-by-telling-fat-kids-to-stop-being-fat.html> (last visited February 21, 2013).

Parker-Pope T. , “The Fat Trap,” New York Times, January 1, 2012, available at <http://www.nytimes.com/2012/01/01/magazine/tara-parker-pope-fat-trap.html?pagewanted=all> (last visited March 4, 2013).

“Obese” is used by health professionals and others to describe those who are significantly overweight. “Fat” is used by those who critique conventional understandings of the causes and consequences of individuals being large. This paper uses both terms as a reflection of such controversies.

For example, Sassi F. (in association with OECD), Obesity and the Economics of Prevention: Fit Not Fat (Cheltenham, UK/Northampton, MA, USA: Edward Elgar, 2010); World Health Organization, Population-Based Prevention Strategies for Childhood Obesity (Geneva: WHO, 2009).

For example, Vastag B. and Aizenman N. , “New Tactic in War on Obesity: Attack Portion Size,” Washington Post, June 2, 2012, available at <http://www.washingtonpost.com/national/health-science/new-tactic-in-war-on-obesity-attack-portion-size/2012/06/02/gJQA4wzi9U_story.html> (last visited February 21, 2013); Eng M. , “Fruit Juice Targeted in the War on Obesity,” Chicago Tribune, May 24, 2012, available at <http://articles.chicagotribune.com/2012-05-24/news/ct-met-war-on-fruit-juice-20120524_1_juice-consumption-fruit-juice-juice-products-association> (last visited February 21, 2013); “Weight of the Nation' Declares War on Obesity,” CNN, May 8, 2012, available at <http://thechart.blogs.cnn.com/2012/05/08/weight-of-the-nation-declares-war-on-obesity/> (last visited February 21, 2013).

Caulfield T. , The Cure For Everything!: Untangling The Twisted Messages about Health, Fitness, and Happiness (Toronto: Penguin Books, 2012).

Committee on Obesity Prevention Policies for Young Children, Early Childhood Obesity Prevention Policies, Institute of the National Academies (Washington, D.C.: The National Academies Press, 2011): at 19 (hereinafter cited as Early Childhood Obesity Prevention).

Seeman N. and Luciani P. , XXL: Obesity and The Limits of Shame (Toronto: University of Toronto Press, 2011): at 24.

See Early Childhood Obesity Prevention, supra note 7.

Bogart W. A. , RO?, at Chapter 2: How is Obesity a Problem? III. Obesity: A Public Health Issue? a) Increase in Weight. This chapter provides an extensive discussion of these factors and related citations to authorities.

See Seeman and Luciani , supra note 8, at 9–15.

Id., at 16–17.

Finkelstein F. , “Annual Medical Spending Attributable to Obesity: Payer- and Service-Specific Estimates,” Health Affairs 28, no. 5 (2009): W822–W831.

See Seeman and Luciani , supra note 8, at 23.

Campos P. , The Obesity Myth: Why America's Obsession with Weight Is Hazardous to Your Health (New York: Gotham, 2004); Oliver E. , Fat Politics: The Real Story Behind America's Obesity Epidemic (New York: Oxford University Press, 2006); Kirkland A. , Fat Rights: Dilemmas of Difference and Personhood (New York: New York University Press, 2008); Rhode D. , The Beauty Bias: The Injustice of Appearance in Life and Law (New York: Oxford University Press, 2010); Farrell A. , Fat Shame Stigma and the Fat Body in American Culture (New York: New York University Press, 2011); Guthman J. , Weighing In: Obesity, Food Justice, and the Limits of Capitalism (Berkeley and Los Angeles: University of California Press, 2011); Saguy A. , What's Wrong With Fat? (New York Oxford University Press, 2012). See also Rothblum E. and Solovay S. , The Fat Studies Reader (New York: New York University Press, 2009); Metzi J. and Kirkland A. , eds., Against Health: How Health Became the New Morality (New York: New York University Press, 2011).

See RO?, supra note 10, at Section IV. Is Being Fat Like Being Short? b) The Rates of Obesity are Exaggerated.

Id., at Section c) The Physical Health Problems Related to Obesity Are Misrepresented.

Id., at Section III. b) Weight Loss: What Is Shed Is Almost Always Regained.

Id., at Section III. c) Stigma, Shame, and Fat.

Id., at Section III. c) 2 Responses.

Bacon L. and Aphramor L. , “Weight Science: Evaluating the Evidence for a Paradigm Shift,” Nutrition Journal 10, no. 69 (2011): 1–13, at 5.

See Rhode , supra note 15, at 105.

Gaesser G. , “Is ‘Permanent Weight Loss’ an Oxymoron?” in Rothblum E. and Solovay S. , supra note 15, at 37, 39.

NIH Technology Assessment Conference Panel, “Methods for Voluntary Weight Loss and Control,” Annals of Internal Medicine 119, no. 7 (part 2) (1993): 764–770, at 764; see also Puhl R. and Heuer C. , “Obesity Stigma: Important Considerations for Public Health,” American Journal of Public Health 100, no. 6 (2010): 1019–1028, at 1021.

See Bacon and Aphramor , supra note 21, at 5.

“Fat shame” is the title of a prominent work addressing many of the issues discussed in this subsection: see Farrell , supra note 15.

Bogart W. A. , Permit But Discourage: Regulating Excessive Consumption (New York: Oxford University Press, 2011).

Deford F. , journalist, quoted in Farrell , supra note 15, at 9.

See Rhode , supra note 15, at 150–152, note 25. See also Campos , “The Epidemiology of Overweight and Obese,” International Journal of Epidemiology 35, no. 1 (February 2006): 55–60.

See Seeman and Luciani , supra note 8, at 73.

Id., at 88.

See Rhode , supra note 15, at 42.

Id., at 29.

Lasalandra M. , “Doctors Say Losing Weight is Emphasized Too Heavily,” Boston Hearld, June 1, 1998, at 20 (quoting Fumento M. ).

Dailey K. , “Atlanta Anti-Obesity Ads ‘Risk Child Stigma,’” BBC News, February 9, 2012, available at <http://www.bbc.co.uk/news/world-us-canada-16958865> (last visited February 21, 2013); Renzetti E. , “It's Time to Shed the Tyranny of Dieting – Losing Weight Is a Losing Battle,” Globe and Mail, January 7, 2012, at A2.

Kay B. , “High Esteem Won't Cure Obesity's Ills,” National Post (Canada), February 11, 2012, available at <http://fullcomment.nationalpost.com/2012/02/11/barbara-kay-high-esteem-wont-cure-obesitys-ills/> (last visited February 21, 2013).

See Bogart , supra note 27, at Chapter 3: Excessive Consumption and Normativity.

Id.

See Guthman , supra note 15, at Chapter 7: Will Fresh, Local, Organic Food Make You Thin?.

See Puhl and Heuer , supra note 24, at 1019–1028.

See Seeman and Luciani , supra note 8.

Id., at 45 and accompanying text.

See RO?, supra note 10, at Chapter 7: Encouraging Children at Play! V. Playgrounds, School Yards, Games, and Sports b) V. Vouchers to the Rescue?: The Canadian Children's Fitness Tax Credit. See also Seeman and Luciani , supra note 8, at 106–147 (Chapter 4: “Healthy Living Vouchers”).

See Seeman and Luciani , supra note 8, at 126 (emphasis in the original).

Wann M. , “Forward–Fat Studies: An Invitation to Revolution,” in Rothblum E. and Solovay S. , supra note 15, at ix.

Id., at xiii.

See Kirkland , supra note 15; Rhode , supra note 15: Rhode is also supportive of legal interventions that would be guided by an approach like the one taken by the Health at Every Size Model (HAES) (see infra, iii.); Rhode , id., at Chapter 7: Strategies for Change (however, her emphasis is on protection from appearance bias, including the victimization of fat people).

See RO, supra note 10, at Chapter 3: Appearance Bias – Fat Rights.

Burgard D. , “What Is ‘Health at Every Size’?” in Rothblum E. and Solovay S. , supra note 15, at 44.

See Section III. c) 2. iii. Healthy at Every Size (HAES).

See Farrell , supra note 15, at 11–13.

See Bacon and Aphramor , supra note 21, at 8.

Hacker J. and Peirson P. , Winner Take All Politics (New York: Simon and Schuster, 2011); Hacker A. , “We're More Unequal Than You Think,” New York Review of Books, February 23, 2012, at 34; Simpson J. , “Income in Equality: Deep, Complex, and Growing,” Globe and Mail, December 9, 2011, at A21.

Nestle M. , Food Politics: How the Food Industry Influences Nutrition and Health (revised and expanded edition) (Berkeley and Los Angeles: University of California Press, 2007): at 358–359.

See Oliver , supra note 15, at 144–145; see Caulfield , supra note 6, at 46 and following.

See Seeman and Luciani , supra note 8.

See Section III. c) 2. i. Fight Stigma–Battle Weight.

See Seeman and Luciani , supra note 8, at 64.

Id., at 62.

Id., at 64 (emphasis added).

Kirkland A. , “The Environmental Account of Obesity: A Case for Feminist Skepticism,” Signs 36, no. 2 (2010): 463–486, at 463.

Id., at 467.

Id., at 468 and following.

Id., at 474. Some similar positions are taken by Guthman , supra note 15.

Id., at 481 and Section III. c) 2. iii. Healthy at Every Size (HAES).

Id., at 100.

See supra, IV. The Heavy Hand of the State.

McIntosh W. and Gates C. , Multi–Party Litigation: The Strategic Context (Vancouver: University of British Columbia Press, 2009): at Chapter 5–The Politics of Food Litigation; see Bogart , supra note 27, at Chapter 2 ii. c) Is Litigation a Tool?.

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Id., at 1603–1604.

Id.

Healthy Eating Research, Sugar–Sweetened Beverage Taxes and Public Health (Robert Wood Johnson Foundation, 2009): at 2 (hereinafter cited as Sugar Sweetened).

Caraher M. and Cowburn G. , “Taxing Food: Implications for Public Health Nutrition,” Public Health Nutrition 8, no. 8 (2005): 1242–1249, at 1248; Powell L. and Chaloupka F. , “Food Prices and Obesity: Evidence and Policy Implications for Taxes and Subsidies,” Milbank Quarterly 87, no. 1 (2009): 229–257, at 250–251; Thow A. , “The Effect of Fiscal Policy on Diet, Obesity and Chronic Disease: A Systematic Review,” Bulletin of the World Health Organization 88, no. 8 (2010): 609–614, at 609.

Brownell K. and Frieden T. , “Ounces of Prevention–The Public Policy Case for Taxes on Sugared Beverages,” New England Journal of Medicine 360, no. 18 (2009): 1805–1808, at 1807 (hereinafter cited as Brownell and Frieden).

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Id., at 413.

Hartocollis A. , “City Seeking to Wean Poor from Sodas,” New York Times, October 7, 2010, at A1, A28; Hartocollis A. , “Plan to Ban Food Stamps for Sodas Has Hurdles,” New York Times, October 8, 2010, at A19.

See Brownell , supra note 70, at 1604 (Public Health).

Id., at 1602.

Hartocollis A. , “Failure of State Soda Tax Plan Reflects Power of Antitax Message,” New York Times, July 3, 2012, at A12; Neuman W. , “Save the Children Backs Away from Soda Tax Campaigns,” New York Times, December 15, 2012, at B1.

Makiw M. , “Can a Soda Tax Save Us From Ourselves?” New York Times, June 6, 2010, at Business Week 4.

Parker–Pope T. , “Money Is Tight, and Junk Food Beckons,” New York Times, November 4, 2008, at D6; Brody J. , “Eating Well on a Downsized Food Budget,” New York Times, March 3, 2009, at D7.

See Sweetened Sugar , supra note 73, at 2.

See Andreyeva , supra note 76, at 416; see also Brownell and Frieden , supra note 75, at 1806–1807.

See Guthman , supra note 15, at Chapter 6: Does Farm Policy Make You Fat?. RO will contain a separate discussion of subsidies.

Jolly R. , Marketing Obesity: Junk Food, Advertising and Kids (Parliament of Australia, Department of Parliamentary Services, Research No. 9, 2011): at 36–37.

Kent Potvin M. , “Self-Regulation by Industry of Food Marketing Is Having Little Impact during Children's Preferred Television,” International Journal of Pediatric Obesity 6, nos. 5–6 (2011): 401–408; see RO?, supra note 10, at Chapter 5 – Just the Facts IV. b) i. Self–regulation.

Consumer Protection Act, RSQ, c P-40.1 § 248–249, 87–91 (1978).

Id., at § 248. See also § 249.

Attorney General of Quebec v. Irwin Toy Ltd. , 1 SCR 927, 988 Can (1989).

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Kent Potvin M. Dubois L. , and Wanless A. , “Food Marketing on Children's Television in Two Different Policy Environments,” International Journal of Pediatric Obesity 6, No. 2-2 (2011): e443–e448.

Id., at 5, but compare Dhar T. and Baylis K. , “Fast-Food Consumption and the Ban on Advertising Targeting Children: The Quebec Experience,” Journal of Marketing Research 48, no. 5 (2011): 799–813, at 801.

Id., at 5, 7.

See Dhar and Baylis , supra note 95.

Id., at 810.

Id.

Id.

Id.

Id., at 811.

RO? will contain a separate discussion of the Internet and marketing to children.

See Bogart , supra note 27, at Chapter 2–Legal Intervention, the Regulatory Mix, and the Impact of Law.

See Early Childhood Obesity Prevention, supra note 7.