Jennifer L. Pomeranz

A Crisis in the Marketplace: How Food Marketing Contributes to Childhood Obesity and What Can Be Done

Reducing food marketing to children has been proposed as one means for addressing the global crisis of childhood obesity, but significant social, legal, financial, and public perception barriers stand in the way. The scientific literature documents that food marketing to children is (a) massive; (b) expanding in number of venues (product placements, video games, the Internet, cell phones, etc.); (c) composed almost entirely of messages for nutrient-poor, calorie-dense foods; (d) having harmful effects; and (e) increasingly global and hence difficult to regulate by individual countries. The food industry, governmental bodies, and advocacy groups have proposed a variety of plans for altering the marketing landscape. This article reviews existing knowledge of the impact of marketing and addresses the value of various legal, legislative, regulatory, and industry-based approaches to change.

The interplay of public health law and industry self-regulation: the case of sugar-sweetened beverage sales in schools.

It is increasingly recognized that sugar-sweetened beverage consumption contributes to childhood obesity. Most states have adopted laws that regulate the availability of sugar-sweetened beverages in school settings. However, such policies have encountered resistance from consumer and parent groups, as well as the beverage industry. The beverage industrys recent adoption of voluntary guidelines, which call for the curtailment of sugar-sweetened beverage sales in schools, raises the question, Is further policy intervention in this area needed, and if so, what form should it take? We examine the interplay of public and private regulation of sugar-sweetened beverage sales in schools, by drawing on a 50-state legal and regulatory analysis and a review of industry self-regulation initiatives.

Legal and Public Health Considerations Affecting the Success, Reach, and Impact of Menu-Labeling Laws

Because the rate of consumption of away-from-home meals has increased dramatically, the distinction between requiring nutrition information for packaged but not restaurant products is no longer reasonable. Public health necessitates that nutrition labels must be included with restaurant menus as a strategy to educate consumers and address the escalation of obesity. Menu-labeling laws are being considered at the local, state, and federal levels, but the restaurant industry opposes such action. We discuss the public health rationale and set forth the governments legal authority for the enactment of menu-labeling laws. We further aim to educate the public health community of the potential legal challenges to such laws, and we set forth methods for governments to survive these challenges by drafting laws according to current legal standards.

Energy drinks: An emerging public health hazard for youth

Energy drinks are emerging as a public health threat and are increasingly consumed by youth internationally. Energy drinks contain high levels of caffeine, sugar, and novel ingredients, and are often marketed through youth-oriented media and venues. We review these practices and the current inconsistent state of labeling. We also examine international support for regulation of these products, including a survey showing that 85 per cent of United States parents agreed that regulations requiring caffeine content disclosure and warning labels on energy drinks are warranted. We then examine the regulatory structure for energy drinks in the United States, analyzing legal and self-regulatory strategies to protect consumers, especially youth, from these potentially dangerous products. Recommended government interventions include revised labeling requirements, addressing problematic ingredients, and enacting retail restrictions. We conclude by identifying areas for future research.

Advanced policy options to regulate sugar-sweetened beverages to support public health

Consumption of sugar-sweetened beverages (SSBs) has increased worldwide. As public health studies expose the detrimental impact of SSBs, consumer protection and public health advocates have called for increased government control. A major focus has been on restricting marketing of SSBs to children, but many innovative policy options – legally defensible ways to regulate SSBs and support public health – are largely unexplored. We describe the public health, economic, and retail marketing research related to SSBs (including energy drinks). We review policy options available to governments, including mandatory factual disclosures, earmarked taxation, and regulating sales, including placement within retail and food service establishments, and schools. Our review describes recent international initiatives and classifies options available in the United States by jurisdiction (federal, state, and local) based on legal viability.

A Historical Analysis of Public Health, the Law, and Stigmatized Social Groups: The Need for Both Obesity and Weight Bias Legislation

History teaches that discrimination against socially undesirable groups leads to societal and governmental neglect of the stigmatized groups health problem. By placing weight discrimination in a historical context, this article demonstrates that legislation specifically aimed at rectifying obesity is less likely while weight bias is socially acceptable. Beyond obesity legislation, public health professionals may consider advocating for legislation directly targeting discrimination based on weight. This article reviews the history of discrimination against distinct groups and provides statutory solutions for discrimination based on weight. In addition to revising current statutes and regulatory rules, a unique statute targeting weight bias in the employment context is considered.

Television Food Marketing to Children Revisited: The Federal Trade Commission Has the Constitutional and Statutory Authority to Regulate

The evidence reveals that young children are targeted by food and beverage advertisers but are unable to comprehend the commercial context and persuasive intent of marketing. Although the First Amendment protects commercial speech, it does not protect deceptive and misleading speech for profit. Marketing directed at children may fall into this category of unprotected speech. Further, children do not have the same First Amendment right to receive speech as adults. For the first time since the Federal Trade Commissions original attempt to regulate marketing to children in the 1970s (termed KidVid), the political, scientific, and legal climate coalesce to make the time well-suited to reevaluate the FTCs authority for action. This paper analyzes the constitutional authority for the FTC to regulate television food marketing directed at children as deceptive in light of the most robust public health evidence on the subject.

The Trans-Fat Ban — Food Regulation and Long-Term Health

The FDA proposes to declare partially hydrogenated oils unsafe and to allow only a small amount of artificial trans fats in foods. The move portends future government actions regarding the food supply that will affect human health much more broadly.

Innovative Legal Approaches to Address Obesity

CONTEXT The law is a powerful public health tool with considerable potential to address the obesity issue. Scientific advances, gaps in the current regulatory environment, and new ways of conceptualizing rights and responsibilities offer a foundation for legal innovation. METHODS This article connects developments in public health and nutrition with legal advances to define promising avenues for preventing obesity through the application of the law. FINDINGS Two sets of approaches are defined: (1) direct application of the law to factors known to contribute to obesity and (2) original and innovative legal solutions that address the weak regulatory stance of government and the ineffectiveness of existing policies used to control obesity. Specific legal strategies are discussed for limiting childrens food marketing, confronting the potential addictive properties of food, compelling industry speech, increasing government speech, regulating conduct, using tort litigation, applying nuisance law as a litigation strategy, and considering performance-based regulation as an alternative to typical regulatory actions. Finally, preemption is an overriding issue and can play both a facilitative and a hindering role in obesity policy. CONCLUSIONS Legal solutions are immediately available to the government to address obesity and should be considered at the federal, state, and local levels. New and innovative legal solutions represent opportunities to take the law in creative directions and to link legal, nutrition, and public health communities in constructive ways.

Portion Sizes and Beyond — Government's Legal Authority to Regulate Food-Industry Practices

The New York City Department of Health proposes to prohibit restaurants, movie theaters, and mobile food vendors from selling sugar-sweetened beverages in containers larger than 16 oz. Does government have the authority to regulate food-industry conduct in this way?