Libertarians, shake in your boots. The January 3, 2007 issue of the Journal of the American Medical Association has an article written by a lawyer that catalogs a variety of ways in which legal approaches could be used to foster healthy lifestyles and prevent obesity. The article is titled, “Law as a Tool to Facilitate Healthier Lifestyles and Prevent Obesity.” Lawrence Gostin, an attorney at the Georgetown University Law Center in Washington DC, is the author.

In fairness, Gostin does not actually advocate implementing any of these approaches and he does present both the arguments in favor and against the different interventions he describes. It is an interesting list and worth reviewing here:

  • Fuller and clearer disclosure of the nutritional content of foods

Although FDA mandated food labels have been on most manufactured foods for a number of years, some of the ways in which foods are labeled are confusing to consumers.

  • Tort liability

We all know about the role lawsuits played in harnessing bad practices of the tobacco industry. Similar tactics have been advocated for the food industry, particularly targeting deceptive representation of the nutritional benefits of certain foods. Although potentially a highly effective strategy, it is one that drives many people bonkers. To date, there is no strong public sentiment to aggressively pursue this route.

  • Mandated surveillance

Mandatory surveillance of certain infectious diseases is an established practice in many countries. New York City has recently implemented a diabetes surveillance program with mandatory reporting of glycosylated hemoglobin, a blood test that measures how well blood sugar is controlled. Both civil libertarians and physicians “vehemently oppose surveillance,” believing it is a direct assault on privacy and personal autonomy. It can also be time consuming and expensive. Nevertheless, if applied judiciously, it could be help to identify and target individuals who would benefit from obesity and diabetes interventions.

  • Regulation of food marketing to children and adolescents

If you want to know how pernicious this can be, take a look at my post on “Advergaming”. Food manufacturers have targeted children with ads for camouflaged as video games. Ads targeting kids also appear on childrens’ TV programs. Most of these ads are for things that most parents don’t want their offspring to eat in excess: candy, sugared cereals, and fast foods. I presented a Web Video Editorial on this topic on a website for physicians, Medscape. Letters to the editor accused me of advocating a ban on such advertising—according to the writers, clearly a violation of the First Amendment. It is interesting to note, however, that we have accepted limitations on advertising (e.g., cigarette ads) in the past and, as far as I can tell, free speech is still alive and well.

  • Taxation of unhealthy foods

In the 80s, I was active in the California chapter of the American College of Emergency Physicians. We joined hands with public health organizations to advocate for a “nickel a drink” tax on alcohol. The money was to be used to fund emergency services. Needless to say, the state’s powerful wine industry was having none of this and our proposition went down in dazzling defeat. Targeting taxes on “junk food” would likely lead to the same outcome. Besides, as the Gostin article notes, determining which foods are good and should remain tax-free and which are bad and should be taxed would be a very difficult task.

  • School and workplace policies

There has already been some progress in these arenas. Thanks to the Alliance for a Healthier Generation and other organizations, sweetened soft drinks are being removed from some school vending machines. School and workplace cafeterias in some areas are offering healthy alternatives to calorie, fat, and sugar laden-foods. Gostin suggests other approaches, such as banning certain foods and requiring schools to adhere to dietary guidelines and recommended portion sizes.

  • Governing the “built” environment

Some neighborhoods are not good for your health, particularly neighborhoods that are low income and non-white. What I mean by that is many of these neighborhoods have limited access to grocery stores where residents can purchase healthy foods, such as fresh produce. These same neighborhoods may not have any safe recreational facilities or even safe places to walk. The article suggests that there may be a role for government in improving these environments by limiting fast food restaurants and liquor stores, building parks and paths, and providing incentives to stores to sell healthy, affordable foods. Arguments against using this legal tool are that it restricts competition and that access to healthy foods may not prevent unhealthy eating or overeating.

  • Food prohibitions

As we have discussed on TDWI, New York recently banned transfats, substances that the medical literature suggests are linked to the development of coronary heart disease. A report by the Institute of Medicine has concluded that “there is no safe level of transfat consumption and it provides no known benefit to human health.” Hey, if transfat was a traditional poison, this action would not be controversial. But since it is considered a food, some of us think we have a right to eat it if we want. Since most of us have some sort of help, either through commercial insurance or government-funded health insurance, an individual’s decision to eat themselves to death actually impacts more than just him- or herself. I discussed this concept a few weeks ago when I raised the question of whose free choice trumps whose not so free choice. If enough of you gorge on transfats and have heart attacks, I am forced to pay higher insurance premiums and may be forced to pay higher taxes.

So, that’s the list. It contains a lot of interesting and potentially fruitful ideas to explore as the country, and indeed, the world dives deeper and deeper into a sea of fat, fast food, and preventable chronic illnesses, such as Type 2 diabetes and heart disease. If you are offended at the suggestions in this list, I challenge you to come up with other effective ways to address the obesity epidemic. Education? Nice but it didn’t stop people from smoking. Parental control? Hmmm…have you ever given in to your kids when they had their heart set on getting something they saw advertised on TV?

I believe there are no easy solutions to the obesity epidemic and, eventually, we will have to resort to laws, regulations, and mandates—as effective adjuncts to less effective, but less onerous approaches.