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Published online by Cambridge University Press: 06 January 2021
Fat. Many love to eat it, but hate to carry it. The majority of people in the United States struggle to get out of this love/hate bond. Unfortunately, they find themselves stuck in an abusive relationship.
Obesity is the “fastest-growing major health problem in the United States.” Approximately two thirds of American adults are overweight or obese. In addition, 15 percent of children are overweight. The number of people suffering from this chronic ailment dwarfs the number of people afflicted with other diseases such as HIV/AIDS, cancer, diabetes and heart disease. Obesity leads to over 400,000 deaths a year, and it costs the United States over $117 billion per year. The prevalence and cost of the disease “warrants an increased emphasis on prevention and treatment.”
1 Richard Pérez-Peña & Grant Glickson, As Obesity Rises, Health Care Indignities Multiply, N.Y. TIMES, Nov. 29, 2003, at A1 (“In 2000, 31 percent of American adults were obese, up from 23 percent in 1990 and 13 percent in 1960, according to the Center for Disease Control and Prevention.”), available at http://www.nytimes.com/2003/11/29/nyregion/29OBES.html.
2 MAYO FOUNDATION FOR MEDICAL EDUCATION AND RESEARCH, Obesity, CNN.COM/HEALTH/LIBRARY, at http://www.cnn.com/HEALTH/library/DS/00314.html (Dec. 31, 2003) [hereinafter MAYO FOUNDATION].
3 ASSOCIATED PRESS, Dining Out May Get Easier for Calories Counters, CNN.COM/HEALTH, at http://www.cnn.com/2003/HEALTH/diet.fitness/10/24/restaurants.obesity.ap/index.html (Oct. 24, 2003).
4 See William, H. Dietz et al., Building Healthy Communities: Policy Tools for the Childhood Obesity Epidemic, 30 J.L. MED. & ETHICS 83, 85 (2002)Google Scholar.
5 See Reuters, Death Rate From Obesity Gains Fast on Smoking, N.Y. TIMES, Mar. 9, 2004, at A16, available at http://www.nytimes.com/2004/03/10/health/10OBES.html.
6 See OFFICE OF THE SURGEON GENERAL, U.S. DEP't OF HEALTH & HUMAN SERVICES, THE SURGEON GENERAL's CALL TO ACTION TO PREVENT AND DECREASE OVERWEIGHT AND OBESITY, (U.S. Gov't Printing Office, Stock No. 017-001-00551-7, 2001) available at http://www.surgeongeneral.gov/topics/obesity.
7 Dietz et al., supra note 4, at 85.
8 MCDONALD's CORP., Frequently Asked Questions About McDonald's Food and Nutrition, at http://www.mcdonalds.com/usa/eat/nutrition_faq/diet.html (stating that, “One key to a healthy diet is to moderate, not eliminate, favorite foods because eliminating foods is rarely successful long term. In fact, the American Dietetic Association says that all foods can fit into a healthy diet and that what's most important is eating a balanced diet over time, rather than focusing on any one food or meal.”).
9 See, e.g., KELLY D. BROWNELL & KATHERINE BATTLE HORGEN, FOOD FIGHT 276-78 (2004) (discussing attorney Samuel Hirsch filing suits against McDonald's on behalf of obese teenagers).
10 See infra pp. 7-11.
11 BROWNELL & HORGEN, supra note 9, at 297.
12 MAYO FOUNDATION, supra note 2.
13 U.S. DEP't OF HEALTH & HUMAN SERVICES, Leading Health Indicators, available at http://www.healthypeople.gov/Document/tableofcontents.htm#under.
14 See OFFICE OF THE SURGEON GENERAL, supra note 6. Note that while the weight epidemic affects all groups of people, a disparity exists among which racial and ethnic groups it affects the most. Id. See also Mary, Anne Bobinski, Health Disparities and the Law: Wrongs in Search of a Right, 29 AM. J. L. & MED. 363 (2003)Google Scholar.
15 See Reuters, supra note 5 for more information on concerns related to obesity.
16 See MAYO FOUNDATION, supra note 2.
17 OFFICE OF THE SURGEON GENERAL, supra note 6.
18 Id. at 8.
19 See U.S. DEP't OF HEALTH & HUMAN SERVICES, supra note 13, at 29.
20 See Lawrence, O. Gostin et al., The Law and the Public's Health: A Study of Infectious Disease Law in the United States, 99 COLUM. L. REV. 59, 69-70 (1999)Google Scholar. Note that all of the models overlap considerably when analyzing most diseases.
21 Id. at 70.
22 Id.
23 Id.
24 Id.
25 Id.
26 See Bobinski, supra note 14, at 368.
27 Id.
28 Gostin et al., supra note 20, at 71.
29 Id.
30 Id. at 74.
31 Id.
32 Id. at 75 (citing Bruce G. Link & Jo Phelan, Social Conditions as Fundamental Causes of Disease, J. HEALTH & SOC. BEHAV. 80, 87 (1995)(Extra Issue)).
33 Gostin et al., supra note 20, at 75.
34 See Bobinski, supra note 14, at 375-76.
35 OFFICE OF THE SURGEON GENERAL, supra note 6.
36 MAYO FOUNDATION, supra note 2.
37 See OFFICE OF THE SURGEON GENERAL, supra note 6.
38 Id.
39 This Note will not focus on the microbial model because it does not play a substantial role in obesity. This is not to say the microbial model plays no role. In fact, the models overlap significantly. See Gostin et al., supra note 20, at 70; BROWNELL & HORGEN, supra note 9, at 23-26. However, most of the intervention for obesity focuses on environmental and behavioral factors. See Bobinski, supra note 14, at 368. But see Y.J., Lui et al., Molecular and Genetic Mechanisms of Obesity: Implications for Future Management, 4 CURR. MOL. MED. 325 (2003)Google Scholar, available at http://www.ncbi.nlm.nih.gov/entrez/query.fcgi?cmd=Retrieve&db=PubMed&list_uids=12776988&dopt=Abstract.
40 See Bobinski, supra note 14, at 368.
41 Tim Byers, Recent Remarkable Trends and Discoveries Regarding Obesity and Health, American Sports Institute, at http://www.amersports.org/library/reports/4.html (February 27, 2002).
42 See id.
43 Id.
44 See BROWNELL & HORGEN, supra note 9, at 299-302.
45 Id. at 297.
46 Id. (“The National Institute of Health funds some research on nutrition, but so does the U.S. Department of Agriculture (USDA), the Centers for Disease Control and Prevention (CDC), the Department of Defense, and more. There does not exists a national nutrition strategic plan that organizes and directs these efforts.”).
47 Id. at 298.
48 See id. (“[E]fforts to improve academic performance by the Department of Education may be undermined by USDA policies that permit unhealthy foods in schools.”).
49 Id. at 298.
50 Id.
51 Id.
52 See Gostin et al., supra note 20, at 61.
53 Id.
54 See id. at 63.
55 Id. at 80.
56 Id. at 61.
57 Lawrence, O. Gostin, Public Health Law: A Renaissance, 30 J.L. MED. & ETHICS 136, 136 (2002)Google Scholar.
58 See Gostin et al., supra note 20, at 77.
59 See id. at 78.
60 Gostin, supra note 57, at 138.
61 See Dietz et al., supra note 4, at 83.
62 See Gostin et al., supra note 20, at 71-72.
63 See id. at 80.
64 See Dietz et al., supra note 4, at 84-85 (discussing Planet Health's Boston initiative to reduce the environmental effects of television viewing on obesity and the efforts of the State of Missouri to establish healthy eating environments in schools).
65 See Gostin et al., supra note 20, at 80.
66 See id. at 81. See also Gostin, supra note 57, at 137-38 (describing different legal tools such as the power to tax, spend and market to alter behavior).
67 See BROWNELL & HORGEN, supra note 9, at 217 (discussing the 1994 Op-Ed piece in the NEW YORK TIMES, which began public discourse on the subject of these taxes).
68 Id. at 218.
69 Id. at 217.
70 For a detailed discussion on the background on the food tax and the controversy surrounding it see id. at 217-34.
71 Gostin et al., supra note 20, at 81.
72 Id.
73 Id. at 82-85.
74 Id. at 82.
75 Id.
76 Jonathan, E. Fielding et al., How Do We Translate Science Into Public Health Policy and Law?, 30 J.L. MED. & ETHICS 22, 26 (2002)Google Scholar.
77 Id. at 28.
78 See, e.g., MAYO FOUNDATION, supra note 2.
79 Gostin et al., supra note 20, at 82.
80 Id.
81 Id. at 83.
82 Id.
83 Id.
84 Id. at 84.
85 Id.
86 See TASK FORCE ON COMMUNITY PREVENTIVE SERVICES, U.S. DEP't OF HEALTH & HUMAN SERV., THE COMMUNITY GUIDE, at http://www.thecommunityguide.org.
87 Gostin et al., supra note 20, at 84.
88 Id. at 84-85.
89 Fielding, supra note 76, at 26.
90 Id.
91 Gostin et al., supra note 20, at 85.
92 Id.
93 Fielding, supra note 76, at 26.
94 Id.
95 Gostin et al., supra note 20, at 85.
96 See generally Pérez-Peña & Glickson, supra note 1.
97 Id.
98 See Fielding, supra note 76 at 26.
99 See Gostin et al., supra note 20, at 86.
100 See Fielding, supra note 76, at 26.
101 See Gostin et al., supra note 20, at 87.
102 BROWNELL & HORGEN, supra note 9, at 288.
103 See supra note 59 and accompanying text.
104 Gostin, supra note 57, at 136.
105 BROWNELL & HORGEN, supra note 9, 298.
106 Many government agencies deal with nutrition issues, including the USDA, the Department of Health and Human Services (Centers for Disease Control and prevention, National Institutes of Health, Office of the Surgeon General), the Federal Trade Commission, Food and Drug Administration, Federal Communications Commission, and even the Department of Education. See BROWNELL & HORGEN, supra note 9, at 298.
107 See Gostin et al., supra note 20, 89-101.
108 Id. at 89.
109 Id.
110 See Richard, D. Hurt, The Influence of the Minnesota Tobacco Trial on the Healthcare Community and Tobacco Regulation, 25 WM. MITCHELL L. REV. 455, 467 (1999)Google Scholar.
111 See Dietz et al., supra note 4, at 85.
112 See Gostin et al., supra note 20, at 89.
113 See generally Special Health Issue: The End of Heart Disease, 135 U.S. NEWS & WORLD REPORT, Dec. 1, 2003, at 38-68.
114 See Gostin et al., supra note 20, at 89-90.
115 Id. at 90.
116 Id.
117 Id.
118 See Fielding, supra note 76, at 23.
119 See Gostin et al., supra note 20, at 94-95.
120 Id. at 94.
121 Id. at 95.
122 Id.
123 Id. at 91.
124 Id.
125 See Bobinski, supra note 14, at 375.
126 Gostin et al., supra note 20, at 73.
127 See id.
128 Id. at 73-74.
129 Id. at 74.
130 See Bobinski, supra note 14, at 375.
131 See BROWNELL & HORGEN, supra note 9, at 297-98.
132 Id.
133 See supra Section I.
134 Gostin et al., supra note 20, at 72.
135 Id.
136 Id.
137 Id. at 92.
138 Id.
139 Id. at 93.
140 See id.
141 See id.
142 Id. (quoting Mary B. Harris et al., Gender and Ethnic Differences in Obesity-Related Behaviors and Attitudes in a College Sample, 21 J. APPLIED SOC. PSYCHOL. 1545, 1561 (1991)).
143 Id. (quoting Nancy Stedman, Desperately Seeking Slimdom, HEALTH, Nov. 1985, at 56, 58).
144 See id. at 30.
145 See, e.g., Gostin et al., supra note 20, at 93 (“The pervasive social hostility towards gay men, for example, contributes to the creation of a gay subculture built around nonmonogamous sexual relationships.”).
146 Id. at 92.
147 Id.
148 See MAYO FOUNDATION, supra note 2; BROWNELL & HORGEN, supra note 9, at 12 (“The deteriorating environment is the clear cause of the obesity epidemic and must be the basis for its remedy.”).
149 See Pérez-Peña & Glickson, supra note 1, at 1.
150 Fat Like Me (ABC News Special, Oct. 27, 2003).
151 See Gostin et al., supra note 20, at 95-96. See also explanation of core functions in section III(B).
152 In addition to equipment, care centers must pay for the extra workers required to take care of an obese person compared to an ordinary-sized person. See Pérez-Peña & Glickson, supra note 1, at 2.
153 See Gostin et al., supra note 20, at 95-96.
154 See Pérez-Peña & Glickson, supra note 1, at 2 (“The price [of an equipped hospital bed], according to Bruce Lander, a hospital spokesman: $18,500, five times as much as a standard, motorized hospital bed. The hospital has spent as much as $2,446 for an oversize wheelchair, he said, eight times as much as an ordinary wheelchair, and $30, 414 for an operating table for morbidly obese patients, almost double the usual cost.”).
155 See id. at 1.
156 See Gostin et al., supra note 20, at 96.
157 See Fielding, supra note 76, at 26.
158 Id.
159 Id.
160 See BROWNELL & HORGEN, supra note 9, at 286-287.
161 See, e.g., H.R. 3444, 108th Cong. (1st Sess. 2003) (Menu Education and Labeling (MEAL) Bill would force fast-food and other chain restaurants to display on menus how many calories and how much fat and sodium customers are getting in each item).
162 See Julie Dunn, Restaurant Chains, Too, Watch Their Carbs, N.Y. TIMES, Jan. 4, 2004, at 1 (“Recognizing the size of the trend, nearly every part of the food industry, from manufacturers to restaurant chains, have introduced low-carb products.”). But see Marian Burros, Hold the Fries. Hey, Not All of Them, N.Y. TIMES, Mar. 10, 2004 (noting that companies are adding new options to their menus because of consumer demand, not criticism of the fast food industry), available at http://www.nytimes.com/2004/03/10/dining/10WELL.html.
163 Gostin et al., supra note 20, at 100.
164 Id.
165 Id. at 101.
166 Id. at 100.
167 Id. at 101.
168 Id. at 100-01.
169 Id. at 101.
170 BROWNELL & HORGEN, supra note 9, at 288.
171 Id. at 288-89.
172 Id. at 299-302.
173 Id. at 298 (“There would be fewer people to target with lobbying and fewer elected leaders to court.”).
174 Id.
