Ethics of Obesity Legislation and Litigation: A Public-Health Policy Debate

Introduction

Policy to combat the epidemic of obesity in the United States is in the news on a daily basis, as is litigation related to obesity health issues claiming the food industry is at greater fault than the individual consumer. Nursing and other health professionals are engaged, developing programs and conducting interventions to improve the health status of our increasing obese populations. While many of these attempts are evidence-based, the literature demonstrates that health professionals often fail to consider the ethics of policy design relative to decision making in obesity health policy. ¹ The extent to which improvement actions should be based on evidence and ethics when making health policy decisions has been explored by Tannahill. ² He noted that for any given health-improvement topic such as obesity, action is possible at a number of levels. Application of the ecological model has demonstrated that legislation that is enacted in the form of health policy can affect all levels, from the individual to an entire society. ¹ Policy makers should consider use of an ethical framework to analyze legislation that is posed relative to health policy. ³ Tannahill ² proposed a triangulation model that allows for policy options to be considered against an agreed-upon set of ethical principles. The explicit process would use the available evidence (and identification of noted evidential gaps) combined with theory as a basis for the emerging options. Evidence and theory would establish the litmus from which effectiveness could be monitored and evaluated, while the culture would frame the measures by which policy options could be judged as feasible, all through the lens of ethical principles.

However, the policy enacted, whether utilitarian or autonomous, could be viewed as positive or negative, depending upon the ethical lens used when the policy is established. If a positive view is taken, the enacted health policy may be upheld as a beneficent standard, an equitable means of distributing legal responsibility, or moral empowerment toward unified health. If a negative view is taken of the enacted health policy, it could be opposed as an infringement on individual human rights, a failure to address social responsibility, or the advancement of maleficence in an attempt to hold individuals and systems accountable for adherence to health policy. Have et al. ⁴ found that while public-health ethics helps to support a framework for evaluation of obesity policy, it does not help to guide the ethical conflicts that arise in development of obesity, and that cultural feasibility and psychosocial impacts of obesity health policy are determined to be missing links in existing models. This article focuses on the ethical debate central to legislative and legal decision-making relative to obesity health policy.

Rationale for Ethical Debate of Obesity Health Policy by Health Professionals

Why is it important to clarify the rationale for debate in nursing and other health professions on the ethical decision-making process for obesity health policy? Brody ⁵ observes that professional health organizations establish and promote ethical codes of conduct for their memberships, setting standards for ethical behaviors in practice. These ethical codes of healthcare practice should be the basis on which judgments are made for obesity programs, procedures, and policies. Professional health organizations such as the American Nurses Association and the American Medical Society serve to promote the public image of the health professions, and the positions they take on health policy related to obesity are looked upon by the public with trust and respect. ⁵ Ethical counterargument provides a mechanism for debating the cultural feasibility and psychosocial impacts of any potential legislation for obesity programs, and can assist the decision-making process in a manner based on principle.

Process for Ethical Counterargument Related to Obesity Health Policy

In engaging in this ethical counterargument, the Nuffield Council on Bioethics “Intervention Ladder,” designed specifically for the consideration of obesity prevention, is applied. ⁴ Fundamentally, the intervention ladder is a measurement of autonomy. It determines whether choice is (1) eliminated, (2) restricted, (3) guided by disincentive, (4) guided by incentive, (5) guided by change in given default policy, (6) enabling of choice, (7) informative, or (8) cognizant of activity while taking no action. Following Tannahill's triangulation model, each obesity policy issue reviewed will identify the evidence presented to determine whether the issue has a theoretical framework to support its application. Next, the obesity health policy will be judged in accordance with public-health ethics principles and biomedical principles. Finally, application of the principle “do no harm” will be examined relative to cultural feasibility and the potential psychosocial impact of any obesity health policy issue. Guided by these frameworks, counterarguments can be standardized on the basis of an ethics of obesity legislation and litigation.

Pro Legislation/Litigation for Obesity Policy

The growing obesity problem in the United States, particularly among our children, warrants urgent attention. Clearly written regulation is very much in order. According to Brownell and Warner, ⁶ an astonishing two-thirds of the U.S. adult population is overweight. Proposed policy addressing obesity must meet the test of being a morally beneficent standard, an equitable means of legal distribution, or moral empowerment toward unified health. With this in mind, we propose that the current disposition toward health shift from the exclusive interests of the individual to the moral interests and good for the community as a whole.

The many stakeholders in formulating health policy today include the U.S. Public Health Service (USPHS), Department of Health and Human Services (DHHS), the Centers for Disease Control (CDC), and various other governmental agencies and professional consulting bodies such as the American Academy of Pediatrics (AAP) and the Institute of Medicine (IOM). Food marketing has become a focus of advertising targeting naïve children with temptations of heavily sugared and nutritionally empty foods. This marketing approach is now subject to increased scrutiny and public awareness, but any regulatory or ethical push-back is complicated and challenged by dwindling budgets at federal, state, and local levels.

Wilde ⁷ cites racial, ethnic, and income disparities in the childhood obesity prevalence and its suspected causal factors, raising important questions of social inequality. This places the onus on society to address and monitor nutritional matters and to demand that nutritional information be fully disclosed to the public. Some evidence of success along these lines is illustrated by the average 9-year-old, who can point out the number of servings, calories, and fat grams on packaging. Clearly, this constitutes knowledge and education that benefits both the individual and society as a whole. Contextually, there are many who take this information to be a constitutional right and who believe the responsibility is on manufacturers to prove proactively the nutritional merit of their products. ⁷ In that vein, support is found for the ethical principle that “public health institutions should provide communities with the information they have that is needed for decisions on policies or programs and should obtain the community's consent for their implementation.” ⁸ Self-regulation in the food industry addresses four primary initiatives: beverages and foods in schools (one), marketing to children (two), and menu labeling (one). ⁹ But Wilde ⁷ reminds us that media content, long a topic of debate, has been shifting away from the promotion of healthy foods and beverages, and that scrutiny of media content has failed to stem the high-calorie, low-nutrition food advertising to which we are subject. These changes have taken place in an environment that was devoid of controls until approximately 10 years ago.

In North Carolina, the percentage of overweight or obese children is 33% versus 30% of all American adolescents in 2008–2009. Nationally, 16% of girls and more than 18% of boys were classified as “obese” between 2004 and 2006, with much higher percentages for children whose body mass index places them at risk for obesity, incurring costs of $11 billion for private insurance and $3 billion for Medicaid. ⁷

Researchers further decry the obesity epidemic by pointing to changing diagnosis statistics, from adult onset diabetes to increasing numbers of Type 2 diabetes cases. A rationale for this change is that no longer is onset limited to adults. Children as young as 8 years of age are developing the disease. Additionally, the assertion further submitted that young adults in Canada were developing complications of diabetes with early onset of blindness, amputation, kidney failure, and death, all attributable to obesity and poor nutritional habits. ⁶ It is this evidence-based information that helps the public-health sector designate obesity as a fundamental cause of disease, which implies an increased need for health intervention. ⁸

What remedy, then? Clearly, the good habit of reading health information on food packaging can be successfully taught at an early age, as evidenced by the average 9-year-old's ability to interpret such labeling. ⁹ In recent years, 40% of children in Delaware were found to be overweight or obese, the highest prevalence in the nation. With that in mind, the Nemours Foundation ¹⁰ established vending guidelines for selections and portion sizes for better overall student food choices. Using the 4 Ps for product, promotion, price, and placement, they worked closely with vendors to identify marketing for foods that were categorized according to nutritional value as “Go” (almost anytime), “Slow” (sometimes), or “Whoa” (once in a while). Use of these simple strategies helps empower vulnerable community members and aims to ensure that the requisite resources for health maintenance are accessible to all, even to children making autonomous choices. ⁸ Worthy as this effort is, more regulatory work is needed to address firmly the clinical issues associated with children's diet, nutrition, and health.

As of 2009, media self-regulation is also evident in the techniques used by Disney and Nickelodeon, which constitute examples of corporate public-health policies implemented in a manner that enhances the physical and social environment and that supports decreasing obesity. ⁸ Using their own criteria, Disney has discontinued licensing of its proprietary names and characters on products with more than 30% fat content for meals and 35% for snacks, and more than 10% of calories from saturated fats for meals and snacks and more than 10% from added sugars for meals and snacks. ⁹ For its part, Nickelodeon uses its licenses and patents on products that meet a “better for you” criterion without giving further specifics on nutritional guidelines. ⁹

In our media culture, the public can easily fall prey to deceit and fraud. The current status of the food industry in some ways compares to the former grandeur of the tobacco industry, whose practice of adding nicotine to tobacco as an addicting agent comes particularly to mind. U.S. District Judge H. Lee Sarokin stated in a 1992 pretrial ruling ordering the tobacco companies to turn over internal research documents: “All too often in the choice between the physical health of consumers and the financial well-being of business, concealment is chosen over disclosure, sales over safety, and money over morality. Who are these persons who knowingly and secretly decide to put the buying public at risk solely for the purpose of making profits and who believe that illness and death of consumers is an apparent cost of their own prosperity?” ⁶ So the issue goes beyond full disclosure in packaging. The entire structure of food marketing and corporate interests comes into play. Just as it bears asking who is most served by the addition of nicotine to cigarettes, so too we should ask who is most served by the addition of caffeine to beverages or fat to snacks. We have seen that consumers, even in full knowledge of tobacco-industry depredations, have not entirely stopped using tobacco. But they have cut back. The same would likely be true of consumers of unhealthy foods. First of all, they may not know the content of their food choices and thus could not give knowing consent, an ethical issue in its own right. Second, even though some consumers would still make unhealthy choices in full knowledge of food content, that knowledge, once sufficiently widespread, can lead to better (if still imperfect) choices.

The interests of all of society are put at risk when private interests go unexamined and unregulated. Brownell and Warner ⁶ observe that the tobacco industry vigorously advertised its partnership with public health, even as it worked to prevent or delay shifts in public opinion that might support legislative, regulatory, or legal actions and thus erode sales and profits. We know today that the great prevalence of lung cancer and chronic obstructive pulmonary disease are attributable to tobacco abuse, costing large sums in healthcare expenditures. How are the human and economic costs associated with obesity any different from an ethical standpoint? Theoretically, they are not. We are all at risk if we are ill-informed. For us to be responsible citizens and parents, we cannot allow evidence and facts to be forever obscured by marketing hyperbole. Obesity must be addressed in aggressive public policy as the emerging epidemic it is. The challenge is ours to demand, at minimum, full and true information about the foods we consume.

Con Legislation/Litigation for Obesity Policy

There is no disagreement about the enormity of the obesity epidemic and its impact on the health status of both American and global populations. The issue is whether public-health ethical principals are being used by health-professional advocates to inform the mechanisms of legislation and litigation properly. If the problem and proposed remedies are not viewed through an ethical lens, resources dedicated toward obesity management are likely to be applied inappropriately and inefficiently. Examples follow, highlighting cases in which political, economic, and social resources have been ineffectively used in attempts to intervene in the obesity epidemic.

Antler ¹¹ conducted a critical analysis of the Pelman v. McDonald's Corporation case, where a class action lawsuit in New York State was filed on behalf of obese, urban, poor youth against the McDonald's Corporation, claiming false advertisement relative to nutritional quality. Antler proposed that litigation brought against the food industry served to mitigate the effects of obesity in disparate populations. Antler documented that obesity affects minority poor at disproportionately higher rates than other racial and socioeconomic populations. Antler further posited that individual responsibility (autonomy and accountability) for obesity is complicated by a confluence of environmental factors such as available high-calorie food sources at low cost (McDonald's), over which the individual has no control, or limited control, due to socioeconomic and access issues.

Antler submitted that it is the “build environment” and the “nutritional environment”—the infrastructure of place—that contributes to the issue of obesity. It is within such environments that marketing media have designed advertising to capitalize on cultural social milieus, with emphasis on cultural food selections, thus exploiting the minority poor and contributing to the obesity epidemic. ¹¹ Those filing the suit claimed that deception in advertisement relative to nutritional food sources resulted in adverse health effects and diseases related to obesity. The case was originally dismissed and passed around the court system in various appeals. It was Antler's premise that litigation of this nature is vital to the development of public-health policy through the regulation of environmental factors that may result in choice limitation to protect the public, especially those in disparity. However, the claim that lack of sufficient disclosure of nutritional value seems inadequate because nutritional information is available on placemats, online, or upon request at sales locations.

One reason this suit may have failed is that it did not present evidence based on any theoretical framework(s), but instead based its argument upon broad assumptions. In fact, the litigation seemed to take a paternalistic approach, supporting restrictions of autonomous choice of the individual, neither endorsing guided incentives to include better food choices nor taking heed of individual consumer rights. A better approach would have been to negotiate for more consumer-friendly industrial communication about nutrition, marketing of cultural foods using healthier preparations, and presentation of images that reflected proper serving sizes to achieve community health in a way that respects the rights of individuals. ⁸

Of the paternalistic approach, we should ask what legislative activities are being pursued by American political representatives. Boehmer, Brownson, Haire-Joshu, and Dreisinger ¹² conducted a study across all 50 states and found that no fewer than 717 bills and 134 resolutions were proposed relating to childhood obesity, and it would have been more had exclusion criteria not been set eliminating legislation that considered litigation restrictions, food labeling requirements, Medicaid coverage for obesity-related disease, and insurance coverage for gastric bypass. To the credit of the given state and national legislators, the bills and resolutions that did pass demonstrated empowerment of community through enabling choice and providing incentives to prevent obesity such as walking paths, farmers markets, and statewide initiatives for public education. ¹² However, what of the 83% of proposed bills and 47% of resolutions that failed to pass? They amounted to a costly waste of political capital, failing to meet threshold criteria for (1) existence of a sufficient evidence base, (2) development of effective coalitions, and (3) commitment of policy makers. ¹² Development of health policy relating to obesity would be best served by considering these factors, and ethical principles.

Application of public-health ethics in design of obesity policy requires that legislators and litigators seek the information needed to implement effective policies and programs that protect and promote health resources—an evidence-based, proactive (not reactive) approach to health. Further, obesity policy should apply public-health ethics by (1) meeting demands that policy makers act in a timely manner on the information they have about obesity, while acting within the resources and the mandate given to them by the public; (2) designing interventions to prevent obesity that respect diverse values, beliefs, and cultures in the community; (3) providing information needed to inform community decisions on policies or programs; (4) garnering the consent for policy implementation needed for decisions on policies or programs; and (5) obtaining the community's consent for implementation. ⁸ It is also important, and ethical, to measure the outcomes of legislated policies to ensure that successes are supported and considered on a larger scale. Use of monitoring and evaluation in legislated policy should tie back to addressing the fundamental causes of disease with requirements for health and prevention of obesity-related disease, thereby generating increased evidence of support. ⁸ Boehmer et al. ¹² agree that surveillance of legislated policy development to determine effectiveness is needed, as is exploration of the determinants of obesity and outcomes following implementation.

What else makes investment in the creation of bills and resolutions, and constant media messaging about obesity, an ethical issue (besides costly resourcing)? Maclean et al. ¹³ note that the emphasis on calls to action results in stigmatization of those who are obese. Thus obesity stigma leads to negative stereotyping, discrimination, and victimization within society.^3,13–15 Many obesity-prevention programs fail to consider the genetic and environmental risk factors for obesity that are beyond personal control, or other medical conditions that contribute to obesity. ¹⁵ To avoid consideration of alternate causative factors when designing obesity policy, litigation, or interventions amounts to maleficence and results in unintended effects upon obese individuals and subpopulations. ¹⁶ Pomeranz ¹⁶ reviewed obesity legislation and found that in some instances it creates “weight bias.” Obesity results in bullying, name-calling, rude jokes, and prejudice regarding the work ethic—in short, harm. ¹³ If the political focus was centered on holistic concern that created health incentives for those with obesity rather than punitive disincentives, perhaps policy outcomes to prevent obesity would meet with greater success. ¹⁶ Hence, much as minority representation is required in certain federal programs to provide civil empowerment in legislation, obesity policy should include representation of individuals who suffer from obesity, as they are part of the community as well. Policy should be designed and reviewed to ensure that “blaming” obese persons for their condition does not occur, ¹³ as education alone can lead to victimization. ¹⁶

Conclusion

No credible argument exists that denies the need for obesity to be addressed, nor its role in chronic disease. The counterargument presented here was crafted specifically for consideration of ethical design of obesity prevention legislation and litigation. The debate notes that various measures of autonomy must be considered in obesity policy. The examples reviewed by the pro/con arguments demonstrate that in legislated policy, choice is oftentimes (1) eliminated, (2) restricted, (3) guided by disincentive, (4) guided by incentive, (5) guided by change in given default policy, but also that it sometimes (6) enables choice, (7) provides information, or (8) takes no action but monitors activity. ⁴ Application of Tannahill's triangulation model shows that in some cases obesity policy is guided by scientific evidence and is girded by a theoretical framework to support its application, while in other cases there is evidence of neglectfullness. ² In both counterarguments, public-health ethics principles were applied and biomedical principles given for support. Finally, it is found that “do no harm” is relative to the cultural feasibility of the individual lens, and whether the greater harm is being done to society at large through increased expense of care of obese populations or psychological harm rendered through stigmatization of the obese populations. Guided by these frameworks, the counterargument technique allows us to view the obesity epidemic as a complex problem, in need of a framework grounded in ethics, to move us effectively into future policy design.