This symposium article, co-authored by public health officials and a lawmaker, an attorney and a physician, presents the legal perspective on obesity prevention and control and focuses, for the most part, on public health laws and initiatives that have begun to address issues that affect obesity. The examples cited include laws regulating the nutritional value of food available to students and children in child care programs, mandating physical activity for schoolchildren, imposing zoning or land-use restrictions to increase access to affordable healthy foods and limit access to high-calorie foods and beverages, and creating incentives to offer and enroll in wellness programs. The article outlines how partnering with diverse stakeholders is essential “to design and apply law-based strategies” and provides examples of how this was done in several communities and resulted in nutrition labeling of food on restaurant menus and incorporating physical activity projects in municipal development plans. The authors contend…
Category Archives Legal Literature
Starting from the premise that consumer enjoyment of food is linked directly to its color, this article discusses the types of substances that have been used over the centuries to change the appearance of food products and how various governments have tried to regulate their use. The earliest food coloring regulations in the United States were developed under pressure by dairy producers who were able, at one time, to persuade the legislatures of five states to pass laws requiring that margarine be dyed pink to compromise its acceptability in the marketplace. The author traces the history of U.S. laws regulating color additives, noting how debate has raged over the application of strict standards that bar the use of substances with even a 1 in a billion cancer risk to applying what the Food and Drug Administration has championed and called de minimis exceptions that would allow the use of color…
Authored by a recent law school graduate, this article explores the science of animal cloning and the purported shortcomings in existing regulatory authorities to adequately protect the consuming public from potential cloned animal product risks. Noting that animal cloning technology relies, for the most part, on a process that does not create a “pure, one hundred percent genetic clone,” the author recommends the creation of a Food and Drug Administration “Office of Transgenic and Cloned Products” to regulate cloning processes and “take a holistic approach to risk assessment.” She also calls for cloned animal product labeling to “ensure human food consumption safety” and “allow American consumers to choose not to eat cloned animal products, thereby respecting their moral, religious and ethical values.”
Pepperdine University School of Law Professor Richard Cupp argues in this article that the better way to protect animal welfare is to focus on the human moral obligation to treat animals without cruelty. He contends that the current, rapidly expanding movement to endow animals with legal rights would be counterproductive if successful. Cupp reports that 94 law schools either now teach animal law or are planning to do so; three scholarly journals focus exclusively on animal law; and national, state and local bar associations have inaugurated sections dedicated to the subject. Among other matters, Cupp suggests that allowing some animals to ‘earn’ dignity rights if sufficiently intelligent “implies that perhaps some humans should lose their dignity rights if they are sufficiently unintelligent.” He envisions what would happen to our view of infants and mentally incapacitated adults if intelligent animals were accorded rights because of their intelligence. He also claims that…
University of Minnesota Law School Associate Professor William McGeveran discusses the problems posed by Internet marketing that collects and disseminates information about individual purchases as a form of product endorsement among the purchaser’s friends and acquaintances. The author describes how such marketing has already occurred on social networking platforms and the backlash it created. The article explains how current legal paradigms, such as privacy, trademark and consumer protection law, may not provide the protection needed for invasion of privacy by “social marketing” and posits that a common theme to the objections to this type of Web 2.0 marketing is the issue of genuine user consent. McGeveran recommends regulatory best practices to rein in any excesses and theorizes that giving a person control over whether information about her purchase can be used to market a product would go a long way toward resolving some of the concerns that have been raised.
This student-authored case note discusses the obesity-related class litigation filed in 2002 against McDonald’s Corp. involving named plaintiffs who are urban minority youths. The author contends that, while the proposed class definition includes a much broader population of New York residents, framing such litigation to connect obesity with socioeconomic status and race “could have been a valuable opportunity to reframe the obesity issue to highlight its effect on low-income urban minority youth.” According to the article, this reframing could have garnered more positive media attention, which could have spurred the environmental changes that the author believes are needed to combat obesity in this population. The article briefly discusses how “tobacco-style” lawsuits can be part of an effective public health strategy, noting “as was the case with tobacco litigation, if the public becomes convinced that urban minority youth are being misled or manipulated by the food industry, then the politics of fast…
This student-authored article, prepared with the assistance of an attorney from the office of food litigator William Marler, discusses the inconsistent interpretations Washington courts have given to the definition of “manufacturer” in the state’s product liability statute. The issue is critical in foodborne illness cases because those food sellers not deemed to be manufacturers can be held liable for negligence only, which requires conduct-related proof of culpability, and not under the strict liability regime, which does not. According to the author, “without consistent statutory interpretations, both food producers and consumers face unpredictable trial outcomes and costly litigation.” The author recommends the application of “a test that assesses manufacturer liability not only by the apparent physical changes an entity makes to a product, but also by the increased monetary value the entity adds to the product.” This “value-added” test could, according to the author, include simply washing and bagging produce or…
In this publication of the Food and Drug Law Institute, Bruce Silverglade examines his belief that the Food and Drug Administration (FDA) should play a significant role in advancing President Obama’s “prevention” agenda. “The Administration should reinvigorate FDA’s nutrition mission and the agency should be instructed to develop and implement a series of initiatives that would help Americans improve their diets and protect their health,” writes Silverglade, who is director of legal affairs for the Center for Science in the Public Interest in Washington, D.C. He outlines ways the government could facilitate improvements in diet and health, including product reformulation, food labeling, universal symbols to communicate nutritional content, and food marketing to children The government, Silverglade writes, “has an important role in mitigating the toxic food environment created by the food manufacturers and restaurant chains promoting huge servings of soft drinks, snacks and ‘value’ meals that are literally penny-wise and…
University of Cincinnati College of Law Professor James O’Reilly recommends that defense lawyers begin preparing now for a reasonably predictable wave of litigation involving exposures to nano-sized materials that are being used in increasing number in a variety of foods and other products. According to O’Reilly, defense lawyers should be partnering with the health, safety and environmental professionals in key client organizations and starting to revise material safety data sheets, referring to them as important vehicles for risk disclosure and excellent defense tools. O’Reilly also suggests that counsel (i) “urge investment in engineering controls on the lines where the nanoparticles are dumped, sprayed or handled”; (ii) “encourage the medical department or industrial hygiene team to track the medical and compensation claims of lung and internal organ problems, and lost-time illnesses, that have both a base line among the worker population before nano-materials use, and a potential for a ‘spike’ increase…
Recently published articles co-authored by Yale University’s Rudd Center for Food Policy and Obesity Director Kelly Brownell explore various aspects of addressing obesity. They include: Kelly Brownell & Kenneth Warner, “The Perils of Ignoring History: Big Tobacco Played Dirty and Millions Died. How Similar is Big Food?,” The Milbank Quarterly, 2009. This article discusses the “Frank Statement” that cigarette manufacturers published in the 1950s assuring smokers that the industry “always will cooperate closely with those whose task it is to safeguard the public’s health.” The authors call this “a charade, the first step in a concerted, half-century-long campaign to mislead Americans about the catastrophic effects of smoking and to avoid public policy that might damage sales.” They examine the food industry to find purported parallels. They claim that food companies appear to have a similar strategy, focusing on “personal responsibility as the cause of the nation’s unhealthy diet”; raising “fears that…
