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ABA Health eSource
 December 2007 Volume 4 Number 4

Legal and Policy Resources to Prevent Childhood Obesity
by Marice Ashe, Director of Public Health & Policy, City, ST

Marice AsheThe childhood obesity epidemic is a public health problem of nearly unparalleled dimension. Health leaders are calling for changes in public policy to combat the problem, including bans on junk food marketing to children, increased access to healthy foods and physical activity in every school, and new alliances among civic leaders to ensure that the built environment supports human health. To promote major institutional changes like these, advocates will need legal and policy research and tools that will help limit the environmental triggers that can promote obesity.

 

The Robert Wood Johnson Foundation (RWJF) recently announced a $500 million commitment to reversing the childhood obesity epidemic by 2015, and asked Public Health Law & Policy (PHLP) to develop a legal and policy support network to help meet this goal. By empowering advocates and decision makers with expert resources such as model legislation, fact sheets on legal topics, and one-on-one legal technical assistance, the new National Policy and Legal Analysis Network to Prevent Childhood Obesity (NPLAN) is designed to support policy innovation and implementation within a collaborative learning environment.

NPLAN will serve as an incubator where lawyers, policymakers, advocates, and scientists collaborate to produce legal and policy tools and resources. As research and products are developed, NPLAN will also operate as a national one-stop source for access to practical, efficient, and effective legal technical assistance products.

Its stakeholders will include a broad array of professionals and groups: advocacy organizations (national, state, and community-based), public health agencies and organizations, school systems, urban planners, transportation planners, economic development specialists, government attorneys, elected officials, and others committed to using public policy to reverse the childhood obesity epidemic.

New policy strategies require deep research and analysis to ensure they are on solid legal ground, and NPLAN will engage with legal centers across the country to develop this critical research as a starting point for its technical assistance resources. NPLAN will draw on leading national scholars with expertise in legal and policy areas such as the First Amendment; civil rights; regulatory “takings”; preemption; interstate commerce; administrative law at the federal, state, and local levels; international trade; agricultural law; government tax and finance law; and contracts and tort law.

Technical Assistance Services: The Cornerstone NPLAN Resource

Building on the legal centers’ research, NPLAN will develop accessible advocacy tools and technical assistance to support federal, state, and local policy change efforts.

Practical written tools will include model legislation, written memoranda, fact sheets, and other resources. (All written materials will be “open source” – available for download on an interactive website.)

Training opportunities will include in-person and electronic workshops and in-person consultation targeted at advocates, attorneys, and national public health trade associations. An annual NPLAN conference will convene stakeholders to impart knowledge, share lessons learned, and develop policy leadership.

Litigation support for state and local governments will be a linchpin to the success of this advocacy movement, just as it has been to the tobacco control movement. As public policies are successfully adopted, it is virtually certain they will be challenged by the food and beverage industry, whose primary interests may be promoting self-regulation and limiting government regulation of corporate practices. Anticipating this challenge creates an opportunity for public-private partnerships, with NPLAN and state and local government agencies collaborating to defend legislation built upon NPLAN tools and resources.

Realizing the Vision: Policy Priorities for the Next Three Years

Though advocates have identified numerous policy strategies to pursue, three major efforts have emerged as priorities: eliminating the marketing of junk foods to children, improving food and physical activity in childcare and K–12 school environments, and improving the built environment.

 

 

Although these policy priorities are relevant to all communities throughout the United States, they are most urgently needed in low-income communities of color, which have disproportionately higher rates of obesity-related illness and death and fewer resources to combat the socioenvironmental conditions leading to poor health. , NPLAN’s specific commitment to these communities is expressed throughout the project design: from the choice of policy targets to the technical assistance delivery model, which emphasizes accessible resources to empower community-based policy change agents.

 

During its initial period of development, NPLAN also will engage in innovative research into two legal issues that will have relevance across every legal and policy advocacy goal it will address.

  • Addressing civil rights and health disparities : There is clear data that health disparities are rampant throughout the nation based on race, ethnicity, and income. This research will be designed to “unpack” these disparities from a legal perspective: Are the disparities related to public or private sector discrimination? What obligations can be imposed on the financing of public services to address health disparities? Can restrictions be imposed on junk food advertising that targets specific racial and ethnic groups?
  • Analyzing preemption of state and local policy interventions: It is highly likely that the food and beverage industry will attempt to preempt innovative policy development in communities throughout the country. Preemption has been a hugely successful tactic of the tobacco companies (whose parent corporations also own food and beverage companies) to limit clean indoor air and other effective legislation, and the tactic already has been used successfully to limit tort liability for food purveyors.

 

The policy strategies NPLAN will pursue are associated with numerous and complex legal and policy issues, from major constitutional questions to specific protocols that ensure enforcement of new laws and policies at the local level. The chart below highlights just some of the major legal and policy research issues that need to be addressed:

 

Policy ArenaPossible Areas of Intervention 

Food Marketing I

 

 

Restaurants with standardized food must provide menus containing specified nutrition information.


No advertising is allowed in licensed childcare and in K–12 public schools.

 

Examples of Legal and Policy Research Issues

First Amendment issues:

  • First Amendment analysis regarding compelled speech concerns and advertising regulation
  • Child protection theories
  • School board authority to address advertising and marketing in public K–12 schools
  • Analysis of potential First Amendment– based affirmative defenses

 

Other Constitutional issues:

  • Preemption, state and local authority, and statutory limits
  • Privacy (trade secret protection)
  • Takings claims
  • Equal protection claims
  • Due process requirements
  • Interstate commerce clause analyses

 

State and local police power:

  • Local police power to regulate advertising by private businesses and on public property

 

Contract law:

  • Contract, including alleged interference with contract and franchise agreements
  • Analysis of state and local power to negotiate public contracts that prohibit or limit advertising

School and Early Childhood Food Environments

 

 

Enforce existing nutrition standards.

 

Enforce existing physical education and activity standards.

 

Create joint use agreements with public or private sector entities.

 

 

  • State and local power and authority to regulate nutrition and physical activity standards in licensed childcare and K–12 school settings
  • How procurement agreements, as contracts, can be used to incorporate and enforce nutrition standards in vending machines
  • How statutory enforcement mechanisms can be used to ensure compliance with statutory physical education standards in K–12 public schools including:
  • financial incentive programs
  • financial penalty schemes
  • writs of mandate
  • Joint use agreements:
  • model contract language
  • risk management and liability issues
  • related labor and employment law issues

 

Built Environment

 

 

Develop model comprehensive plan and zoning code regulations to promote access to healthy foods and physical activity.

 

Require existing businesses to comply with new zoning code changes.

 

Prohibit new and void existing restrictive covenants.

 

 

  • Police power authority to regulate the use of land based on public health rationale
  • Equal protection analysis regarding whether there is a rational basis to regulate businesses based on health criteria
  • “Takings” analysis: provide guidelines for regulating the use of land to avoid takings claims
  • Regulate the operations of existing businesses through land use tools
  • Eliminate “redlining” of neighborhoods through restrictive covenants
  • Address health issues associated with building standards and transportation planning

 

Civil Rights and Health Disparities

 

 

Develop civil rights analyses to combat health and other disparities in low-income communities of color.

  • Potential public sector discrimination:
  • What are the equal protection obligations of government financing of public resources (parks, recreation facilities) especially in light of public health disparities?
  • If a showing of discriminatory intent is required, are there other advocacy/legal strategies that communities can employ to address disparity goals?

 

  • Potential private sector discriminatory behavior:
  • Restrictive covenants/anti-compete clauses
  • Is it discriminatory for food and beverage industries to:
  • Target certain race and ethnic communities to promote non-nutritious products?
  • Practice differential price/product availability?
  • Redline neighborhoods?

 

Preemption

 

 

 

Ensure advocates understand risk of federal preemption of state and local innovations.

 

Ensure advocates understand risk of state preemption of local innovations.

  • Analyze traditional preemption and explain:
  • impact on innovation
  • impact on interstate commerce
  • cooperative federalism models
  • Impact litigation options (e.g., tort liability)
  • Analyze target policy efforts (e.g., marketing, school-based policies) through a preemption lens
  • Anticipate and provide strategies to address preemption issues related to reauthorizations of Child Nutrition Act and Farm Bill

 

Conclusion

Given the growing enormity of the childhood obesity epidemic in the United States, turning the tide is a challenge that requires tremendous vision and coordination. As states and localities across the nation consider innovative policies to create environments that support physical activity and healthier food choices, legal and policy research and tools will be essential to their efforts. Such resources empowered the tobacco control movement, and they are expected likewise to propel the childhood obesity movement. With a solid track record of collaboration and innovation in the use of law as a tool for social change, Public Health Law & Policy is uniquely prepared to partner with others to play this critical role in reversing the childhood obesity epidemic.

Public Health Law & Policy (PHLP), based in Oakland, California, is a national leader in providing legal and policy guidance on public health issues. PHLP created a model for providing technical assistance with the tobacco control movement in California that has been tested and refined over the past decade.

NPLAN’s founding legal research centers include the Center for Law and the Public’s Health at Johns Hopkins School of Public Health; the Chief Justice Earl Warren Institute on Race, Ethnicity, and Diversity at the University of California at Berkeley School of Law; the Public Health Advocacy Institute at Northeastern Law School; the Rudd Center for Food Policy and Obesity at Yale University; the Tobacco Control Legal Consortium at William Mitchell College of Law; the University of Connecticut School of Law; and the University of Texas School of Law.

Berkeley Media Studies Group. Fighting Junk Food Marketing to Kids: a toolkit for advocates, August 2006, p. 5.

Ibid, p. 14.

Ibid, citing Advertising Age. Hispanic Fact Pact, Annual Guide to Hispanic Advertising and Marketing. 2006:10.

Henderson V, Kelly B. Food advertising in the age of obesity: content analysis of food advertising on general market and African American television. Journal of Nutrition Education and Behavior. JulyAug 2005;5–85. Cited in Out of Balance: Marketing of Soda, Candy, Snacks, and Fast Foods Drowns Out Healthful Messages. CPEHN and Consumers Union report, Sept. 2005.

Institute of Medicine, Food Marketing to Children and Youth: Threat or Opportunity? National Academies Press, 2006:307.

Kubik MY et al. The association of the school food environment with dietary behaviors of young adolescents. Am J Public Health. 2003;93:1168–1173 ( citing Centers for Disease Control and Prevention. Guidelines for school health programs to promote lifelong healthy eating. MMWR Morb Mortal Wkly Rep. 1996;45:1–33).

Weschler H and Devereaux RS. Using the school environment to promote physical activity and healthy eating. Preventive Medicine. 2003;31:S121–37

Wechsler H et al. The role of schools in preventing childhood obesity. State Education Standard. Dec 2004:4–12.

Centers for Disease Control and Prevention. School Health Profiles: Surveillance for Characteristics of Health Education Among Secondary Schools (Profiles 2004). Available at www.cdc.govhealthyyouth/profiles/2004/narrative.pdf. 2006:28. (The percentage ranged from 5.5% to 23.5% across states with a median of 9.7%.)

Kubik MY et al. The association of the school food environment with dietary behaviors of young adolescents. Am J Public Health. 2003;93:1168-1173.

Ewing R et al. Relationship between urban sprawl and physical activity, obesity, and morbidity. American Journal of Health Promotion, 2003;18.

Institute of Medicine. Preventing Childhood Obesity: Health in the Balance. National Academies Press, 2005.

Ibid., p. 257.

Block JP et al. Fast food, raceethnicity, and income: a geographic analysis. American Journal of Preventive Medicine. 2004;27:211–217.

Yancey AK et al. Population-based interventions engaging communities of color in healthy eating and active living: a review. Preventing Chronic Disease. Jan 2004. See www.cdc.govpcd/issues/2004/jan/03_0012.htm.

 

 

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1 Geisin