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REPORT ON OBESITY: Litigation and Employer Action Can Fight Epidemic - Imposing Personal Responsibility Key

09.05.2012 - 12:29

An Institute of Medicine [IOM] report issued yesterday predicting a 42% adult obesity rate - and over $500 billion in unnecessary costs - recommended new legal approaches even while admitting that food company resistance has largely stymied new legislation, but litigation and actions by individual employers can also play a major role, says the man who has been called the "Lawyer Who's Leading the Battle Against Big Fat" and "a Major Crusader Against Big Tobacco and Now Among Those Targeting the Food Industry." http://books.nap.edu/openbook.php?record_id=13275&page=R1

Fat law suits - ten of which have been successful - have already forced fast food companies, soft drink makers, major food producers, and others to make make significant changes, and have served as catalysts for legislation which might otherwise never have been considered, says public interest law professor John Banzhaf of George Washington University Law School.

Banzhaf also notes that companies already facing crushing burdens from ever increasing medical insurance costs don't have to wait for legislators to resist food company and restaurant lobbying pressures because they can take a number of actions on their own to slash the unnecessary health insurance and other costs caused by employee obesity.

Litigators, as they have done in so many other public interest areas, aren't waiting for legislators to act on their own. For example, as a result of fat law suits:
* Kellogg has adopted nutrition standards for the foods it advertises to young children
* Soft drink companies have slashed the sale of sugary soft drinks (sometimes called "liquid candy") in schools
* New York City agreed to ban all sugary soft drinks, and most fattening foods, from its classrooms
* McDonald's changed the formulation of one of its major offerings after it was excoriated in a judicial opinion
* Kraft agreed to remove trans fat from its Oreo cookies, resulting in a product which is less hazardous and also lower in calories

In addition, say Banzhaf, several law suits over trans fats, and over the refusal of fast food companies to disclose calories, helped serve as a catalyst for legislative bans on trans fats in many jurisdictions, and to national mandated disclosure of calories on menu boards in fast food outlets, and on menus in many other restaurants.

The IOM report concluded that we must shift from placing the blame for obesity solely on lack of will power, and begin to recognize that some of the responsibility must be shared by corporations which help create an "obesogenic" environment which is so very effective at promoting obesity - the underlying basis for law suits against those companies largely responsible for the current obesity crisis.

But individual employers, sick of being forced to bear huge unnecessary costs - obesity is responsible for an additional $190 billion a year in health care costs, or one-fifth of all health care spending, plus billions more in higher health insurance premiums, lost productivity and absenteeism - can take effective action without waiting for legislators to act.

Aside from simply refusing to hire employees who are obese - a step so far taken by only a handful of companies - employers can charge the obese more for the added health insurance costs their conduct adds to the bottom line. This creates a powerful incentive to lose weight, and is better than simply providing rewards to employees who lose enough weight to no longer be obese for a number of reasons:
* Paying employees who are obese to lose weight is seen as unfair to the great majority of employees who already manage to maintain a healthier weight
* The size of the rewards employers can pay is obviously limited, and small amounts have not proven efficient in triggering weight loss
* Charging the obese more for health insurance eliminates both problems, since the surcharges can be very substantial; e.g., based upon the added medical costs of worker obesity

President Barack Obama, HHS Secretary Kathleen Sebelius, and many others all proclaimed during the health care debates that requiring voters to accept personal responsibility for their own health was key to holding down medical costs. Indeed, the Brookings Institution's analysis of health care reform showed that simply making medical care marginally more effective at treating major diseases - through electronic records, evidence-based medical practices, etc. - is far less efficient than preventing the diseases in the first place with economic incentives for healthier lifestyles. Only by charging those who overeat and fail to exercise for the huge costs they currently impose on others can we really begin to impose personal responsibility for obesity, and provide stronger incentives for weight loss.

Employers who are reluctant to take advantage of differential health insurance rates as part of a wellness program still have many other zero cost options:
* Insisting that on-premises vending machines not contain sugary soft drinks and calorie-laden candy or other unhealthy snacks
* Providing more nutritious lower calorie foods in company cafeterias or, at the very least, charge conspicuously more for unhealthy calorie-laden foods
* Limiting the use of elevators to trips over three floors, except for employees with heavy packages, or those who cannot readily climb stairs
* Moving parking spaces further away from building entrances by reserving close-in spots for the infirm or as rewards for healthy living

As the IOM report emphasized, simply relying upon will power has been a huge failure, and the only way to even slow down the ever expanding pace of obesity is to make significant systemic changes in an environment which today encourages gluttony. Fortunately, we don't necessarily have to wait for timid legislators to act.

"Lawyer can litigate about obesity until legislators legislate, and if necessary we can achieve regulation by litigation," says Banzhaf, noting how important litigation has been in furthering many other social movements. "I helped used legal action as a powerful and successful weapon against the public health problem of smoking, and it can now be used to also fight obesity," he argues.

Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW, Suite S402
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/ https://twitter.com/#!/profbanzhaf