Rudd Center for Food Policy and Obesity
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FAQ

  1. How does the law have anything to do with obesity? Is there a precedent for using legal action to improve public health?
  2. What sort of laws would make sense with respect to counteracting the obesity epidemic?
  3. Are there ways to prohibit the sale of junk food and beverages to children in school? Are there ways to prevent children from bringing certain high sugar, high fat, etc. foods to school in their lunch boxes?
  4. Are there ways to prohibit the sale of junk food to young people outside of schools?
  5. What regulation is currently in place to restrict food advertising to children?
  6. What is the Rudd Center’s opinion of suing the food industry? Do you support laws that would prohibit this practice (like the “Cheeseburger Bill”)? Do you support plaintiffs who accuse certain food companies of inflicting weight gain and obesity-related illnesses on them?
  7. Are there legal barriers to requiring restaurants to provide nutrition information? Does the First Amendment protect restaurants from such laws?
  8. I am in a situation that I think calls for legal intervention. How can I get legal advice?

1. How does the law have anything to do with obesity? Is there a precedent for using legal action to improve public health?

The law is a powerful tool to improve public health. Regulation, legislation and litigation are three legal avenues to ensure better public health. Previous examples of how the law has been used to improve public health in the past include: tobacco control through no-smoking laws, motor vehicle safety through seatbelt laws, and increased vaccination through public school entry requirements.

2. What sort of laws would make sense with respect to counteracting the obesity epidemic?

The following table provides some examples of the types of legal approaches to obesity. These examples are from Mello MM, Studdert DM, Brennan TA. Obesity – The New Frontier of Public Health Law. The New England Journal Medicine. 2006;354(24):2601-10:

Target Legislation Regulation Litigation
Food in Schools Making better nutrition standards for school lunch programs School district regulation banning sugar-sweetened beverages from schools Lawsuits against school boards that permit schools to accept money from soft-drink companies for exclusive vending rights
Community Food Environment Taxing non-nutritional foods or ingredients and/or providing subsidies for producers or buyers of fruits and vegetables Making restrictions on the use of food stamps to purchase non-nutritious foods Lawsuits against manufacturers of non-nutritious foods under Consumer Protection Laws (e.g., by claiming unfair business practices)
Physical Activity in the Built Environment Creating funds for walking and bicycle trails and pathways In residential subdivisions, requiring pathways, sidewalks and parks Lawsuits against developers who do not provide adequate recreational facilities

3. Are there ways to prohibit the sale of junk food and beverages to children in school? Are there ways to prevent children from bringing certain high sugar, high fat, etc. foods to school in their lunch boxes?

Rules governing food and beverage sales in schools are affected by laws at the federal, state, and local levels. The federal law that addresses food and beverages at public schools is the National School Lunch Program (“NSLP”). Among the NSLP standards are certain rules with respect to “competitive foods,” i.e, foods sold in competition with the NSLP in food-service areas during the lunch periods. Sales of competitive foods are permitted at meal times, at the discretion of state and local authorities, as long as they are not considered “foods of minimal nutritional value.” The USDA declared only the following foods as having minimal nutritional value: soda water, water ices, chewing gum, hard candy, jelly candy, marshmallow candy, fondant, licorice, spun candy, and candy coated popcorn.

Federal laws provide a basic backdrop for state and local laws, leaving room for local control. State and local school boards and legislators have a great deal of discretion to make policies they deem appropriate for public schools in their districts. As a result, the applicable laws and policies vary greatly across the country. Legislators and Boards of Education are legally able to prohibit the sale of non-nutritious foods and beverages in schools. Although it is less common than rules prohibiting the sale of certain foods or beverages, there are school policies that prohibit students from bringing certain foods and beverages into schools.

Unfortunately, many school districts have contracts with food and beverage companies to provide non-nutritious items in vending machines and school stores, or allow fast-food restaurants to lease space on the school grounds. It is a difficult situation because many schools are under-funded and use the revenue from these sales to fund school-related activities. However, the current thinking is that it is better to find other avenues for funding than sacrificing the health of our nation’s school children for revenue. Schools are in dire need of money, but we now know that selling unhealthy foods and beverages in school is not the most advantageous way of getting the funds.

4. Are there ways to prohibit the sale of junk food to young people outside of schools?

It is legally permissible to regulate the sale of certain products to children. This has been done for years with items such as tobacco, alcohol and firearms. Although it has not yet been attempted, banning the sale of non-nutritious foods and beverages to children is legally possible. It remains to be seen whether this is something that legislators will try.

5. What regulation is currently in place to restrict food advertising to children?

The Federal Trade Commission, through the Federal Trade Commission Act, has the power to regulate “unfair or deceptive acts or practices” in advertising. The terms “unfair” and “deceptive” are narrowly interpreted so unless the advertisement is misleading or may cause injury to a consumer, the FTC lacks the power to regulate it. Although the FTC attempted to regulate advertising directed to children several decades ago (known as “Kidvid”), its efforts drew intense criticism by corporate stakeholders and Congress eventually pressured the agency to abandon the proposed regulations. Currently, some members of the industry are trying to avoid further government regulation through self-regulatory initiatives. Other industry members function with almost no boundary to their advertising and marketing activities.

There are many avenues that the food and beverage industry use to advertise to children. These include: television advertising; radio advertising; print advertising; movie theater/video/video game advertising; company-sponsored Internet sites; other Internet advertising; other digital advertising; in-store advertising and promotions; specialty item or premium distribution; public entertainment events; product placements; character licensing and cross-promotions; sponsorship of sports teams or individual athletes; packaging and labeling; word-of-mouth marketing; viral marketing; celebrity endorsements; in-school marketing; advertising in conjunction with philanthropic endeavors; and other expenditures.

6. What is the Rudd Center’s opinion of suing the food industry? Do you support laws that would prohibit this practice (like the “Cheeseburger Bill”)? Do you support plaintiffs who accuse certain food companies of inflicting weight gain and obesity-related illnesses on them?

The Rudd Center does not believe in categorically denying a possible avenue of recourse to potential plaintiffs. We do not support frivolous law suits but do believe that people who have been injured should have equal access to the legal avenues available to them. Lawsuits should be decided on the legal merit of the plaintiff’s claims and not based on the defendant’s status. We do not support laws commonly called “Cheeseburger Bills” because they deny access to the courts based on the defendant’s status as a restaurant instead of based on the legal merit of the plaintiff’s claim. Moreover, many of the laws that fall under the rubric of Cheeseburger Bills expressly blame people for being overweight. We do not support this way of thinking.

The Rudd Center does not believe that our legislators should spend time, resources and taxpayers’ dollars on closing off a potential avenue of legal recourse. Instead, we should all be working towards solving issues related to obesity. Some lawsuits against the industry are merited, while others are not. We cannot make a categorical statement about any type of lawsuit because each one should be judged on the merits of law as applied to the facts of the individual case.

7. Are there legal barriers to requiring restaurants to provide nutrition information? Does the First Amendment protect restaurants from such laws?

The federal, state and local governments have the legal authority to legislate and regulate in the interest of public health.  This includes the ability to require restaurants to provide nutrition information for the products they sell. This can be done on a federal level by Congress amending the Nutrition Labeling and Education Act of 1990 to include a requirement that restaurants must disclose the nutritional content of their foods and beverages, like manufacturers of processed foods already are required to do. This can also be done at a state and local level by enacting menu labeling laws. Disclosure requirements are routine in the current commercial marketplace. Just think of all the labels on food packaging (which require standard nutrition information of processed foods), clothing items (which require information on the country of origin and the fiber content), and on alcoholic beverage containers (which must state the percentage of alcohol by volume).

There is no First Amendment barrier to requiring restaurants to disclose the nutritional make-up of the menu items offered for sale. This is considered a commercial speech disclosure requirement of factual information. (Speech is considered commercial speech when it relates to commercial transactions and as such it gets less protection by the United States Constitution than political speech.) The United States Supreme Court addressed this issue in a case called Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626, 6510 (1985). Zauderer holds that in the context of commercial speech, compelled disclosure requirements of purely factual information are constitutional.

8. I am in a situation that I think calls for legal intervention. How can I get legal advice?

Consult the American Bar Association’s Consumers’ Guide to Legal Help if you need a lawyer.
Consult the same guide under Helping Yourself if you want to try to help yourself.
If you believe you are in danger contact your local police department.

For an overview of how the law can be used as a tool to address the obesity epidemic, please see:

Gostin LB. Law as a tool to facilitate healthier lifestyles and prevent obesity. The Journal of the American Medical Association. 2007;297:87-90.

Mello MM, Studdert DM, Brennan TA. Obesity – the new frontier of public health law. The New England Journal Medicine. 2006;354(24):2601-10.