Parens Patriae Deemed a Flawed Strategy to Address Obesity
A recent law review note outlines the history of parens patriae actions that allow states to sue to protect the health and welfare of their citizens, explores its use by state attorneys general to advance public health policy—particularly regarding the use of tobacco—and argues that it cannot be successfully wielded against food companies to address rising levels of obesity in the United States. John Hoke, “Parens Patriae: A Flawed Strategy for State-Initiated Obesity Litigation,” William and Mary Law Review, April 2013.
The author opines that the “many different environmental, lifestyle, and uncontrollable genetic causes of obesity” pose a “formidable obstacle to establishing causation.” He also contends that “the sheer number of food companies and food producers further weakens the causal connection between the conduct of the food industry and obesity” and that “there is scant evidence that the food industry has deliberately tried to deceive consumers about the adverse health effects of various food products.”
Other deficiencies mentioned include alleged harm that is not unique to an individual state, that is, “a person’s residency in one state likely does not increase or decrease that person’s chances of becoming obese,” and a recent trend in the courts to rein in public nuisance, often used as the basis for parens patriae actions, limiting the theory to its traditional moorings in harm against real property. The author briefly explores alternatives that attorneys general could consider, including consumer protection laws giving them broad authority to obtain restraining orders, subpoena documents and impose injunctions and fines. He also posits that they could engage in rulemaking and consumer education or pursue subrogation claims, but argues that regulation is best left to legislatures and that subrogation claims are subject to traditional defenses, such as assumption of the risk and contributory negligence and would thus be unlikely to prevail.
