The term “obese” is difficult – and controversial – to define in children because they are in various stages of physical growth and development. Doctors typically compare a child's Body Mass Index (BMI) to those of others of the same age and gender to determine the normal BMI range. Office of the Surgeon General, Public Health Service, U.S. Department of Health and Human Services, The Surgeon General's Call to Action to Prevent and Decrease Overweight and Obesity (Rockville, MD: U.S. Department of Health and Human Services, Public Health Service, Office of the Surgeon General, 2001): at 1, 6. BMI is calculated by dividing weight in kg by height in meters squared. Id. at 4. Throughout this article we use the term “obese” to refer to children who exceed the clinically accepted BMI range for their age and gender.Google Scholar

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Richard Epstein provides an excellent example of this position in relation to the obesity epidemic. He suggests that the state only intervene when a system of private rights in a free-market system fails to provide a solution. His paper suggests that occurs only in situations of infectious disease that fit models of causation described by Henle-Koch. Epstein, R. A., “Let the Shoemaker Stick to His Last: A Defense of the ‘Old’ Public Health,” Perspectives in Biology and Medicine 46 (2003): S138–159, at S143.CrossRefGoogle Scholar

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E.g., Child Nutrition Promotion and School Lunch Protection Act, S. 2592 IS, 109th Cong. (2006) (seeking to revise the definition of FMNV in accordance with scientific recommendations and apply the new regulations to all foods wherever and whenever sold in schools, with an exception for fundraisers).Google Scholar

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“The National School Lunch Program (NSLP) is a federally assisted meal program operating in public and nonprofit private schools and residential child care institutions. It provides nutritionally balanced, low-cost or free lunches to children each school day. The program was established under the National School Lunch Act, signed by President Harry Truman in 1946.” USDA, National School Lunch Program, available at <http://www.fns.usda.gov/cnd/lunch/> (last visited October 27, 2006).+(last+visited+October+27,+2006).>Google Scholar

“The School Breakfast Program (SBP) provides cash assistance to States to operate nonprofit breakfast programs in schools and residential childcare institutions. The program operates in more than 72,000 schools and institutions, serving a daily average of some 8.4 million children. It is administered at the Federal level by FNS. State education agencies administer the SBP at the State level, and local school food authorities operate it in schools.” USDA, School Breakfast Program, available at <http://www.fns.usda.gov/cnd/breakfast> (last visited October 27, 2006). However, foods offered as part of a “grab-n-go” breakfast contain sugary cereals, animal and snack crackers, and apple juice. All of the items are branded. See Breaks, Breakfast, available at <http://www.breakfastbreaks.com/school/index.php> (last visited October 27, 2006).+(last+visited+October+27,+2006).+However,+foods+offered+as+part+of+a+“grab-n-go”+breakfast+contain+sugary+cereals,+animal+and+snack+crackers,+and+apple+juice.+All+of+the+items+are+branded.+See+Breaks,+Breakfast,+available+at++(last+visited+October+27,+2006).>Google Scholar

“CACFP plays a vital role in improving the quality of day care for children and elderly adults by making care more affordable for many low-income families. Through CACFP, 2.9 million children and 86,000 adults receive nutritious meals and snacks each day as part of their day care.” USDA, Child and Adult Care Food Program, available at <http://www.fns.usda.gov/cnd/care/> (last visited October 27, 2006).+(last+visited+October+27,+2006).>Google Scholar

“The Summer Food Service Program was created to ensure that children in lower-income areas could continue to receive nutritious meals during long school vacations, when they do not have access to school lunch or breakfast…SFSP sponsors receive payments for serving healthy meals and snacks to children and teenagers, 18 years and younger, at approved sites in low-income areas.” USDA, Summer Food Service Program, available at <http://www.fns.usda.gov/cnd/summer/about/index.html> (last visited October 27, 2006). In 2005, the summer program served 115.8 million meals. USDA, SFS Summary, available at <http://www.fns.usda.gov/pd/sfsummar.htm> (last visited October 27, 2006).+(last+visited+October+27,+2006).+In+2005,+the+summer+program+served+115.8+million+meals.+USDA,+SFS+Summary,+available+at++(last+visited+October+27,+2006).>Google Scholar

“The Special Supplemental Nutrition Program for Women, Infants, and Children - better known as the WIC Program - serves to safeguard the health of low-income women, infants, & children up to age 5 who are at nutritional risk by providing nutritious foods to supplement diets, information on healthy eating, and referrals to health care.” USDA, About WIC, available at <http://www.fns.usda.gov/wic/aboutwic/default.htm> (last visited October 27, 2006).+(last+visited+October+27,+2006).>Google Scholar

“The Food Stamp Program helped put food on the table for some 10.3 million households and 23.9 million individuals each day in Fiscal Year 2004. It provides low-income households with coupons or electronic benefits they can use like cash at most grocery stores to ensure that they have access to a healthy diet.” USDA, Food Stamp Program FAQs, available at <http://www.fns.usda.gov/fsp/faqs.htm> (last visited October 27, 2006). A history of this program is available online. USDA, A Short History of the Food Stamp Program, available at <http://www.fns.usda.gov/fsp/rules/Legislation/history.htm> (last visited October 27, 2006).+(last+visited+October+27,+2006).+A+history+of+this+program+is+available+online.+USDA,+A+Short+History+of+the+Food+Stamp+Program,+available+at++(last+visited+October+27,+2006).>Google Scholar

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For example, participation in the NSLP has grown from 7.1 million at its inception in the 1946–47 school year to 28.4 million in 2003. The SBP is much smaller, although current efforts, including a publicity campaign spearheaded by former Senators McGovern and Dole, are aimed at increasing participation. Dell'Amore, C., “McGovern Rallies for Hunger Initiative,” May 17, 2006, available at <http://www.gotbreakfast.org/news/United_Press_International.html> (last visited October 27, 2006). (last visited October 27, 2006).' href=https://scholar.google.com/scholar?q=For+example,+participation+in+the+NSLP+has+grown+from+7.1+million+at+its+inception+in+the+1946–47+school+year+to+28.4+million+in+2003.+The+SBP+is+much+smaller,+although+current+efforts,+including+a+publicity+campaign+spearheaded+by+former+Senators+McGovern+and+Dole,+are+aimed+at+increasing+participation.+Dell'Amore,+C.,+“McGovern+Rallies+for+Hunger+Initiative,”+May+17,+2006,+available+at++(last+visited+October+27,+2006).>Google Scholar

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See, e.g., WIC Reauthorization Act, supra note 17: “The Secretary shall issue guidance to States and school food authorities to increase the consumption of foods and food ingredients that are recommended for increased serving consumption in the most recent Dietary Guidelines for Americans.”Google Scholar

See, e.g., Shapiro, L., “School Food: What's in a Lunch,” Newsweek 117, Special Issue (1991): 66–68. Efforts are being made to reduce the fat and sodium content of purchases commodities and schools are receiving fresh fruits under an arrangement with the Department of Defense. USDA, Food Distribution Programs, available at <http://www.fns.usda.gov/FDD/programs/dod/default.htm> (last visited October 27, 2006). The USDA is also working to establish Farm to School programs. USDA, Agricultural Marketing Service, How Local Farmers and School Food Service Buyers are Building Alliances, available at <http://www.ams.usda.gov/tmd/MSB/PDFpubList/localfarmsandschool.pdf> (last visited October 27, 2006).Google Scholar

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“[T]he vast majority of most kids' calorie and fat intake comes not from school lunch, but from family dinners at fast food restaurants or high fat foods from the home freezer.” Lawn, J., “School Foodservice Faces a Growing Communication Gap,” available at <http://www.food-management.com/article/2130> (last visited October 27, 2006); The Grocery Manufacturers of America, an industry trade group, has steadfastly opposed state legislation it characterizes as “food and beverage restriction” in schools. See, e.g., Fisk, K., “RE: GMA Letter in Opposition of Texas Food and Beverage Restrictions,” available at <http://www.gmabrands.com/publicpolicy/docs/comment.cfm?DocID=1510> (last visited October 27, 2006). (last visited October 27, 2006); The Grocery Manufacturers of America, an industry trade group, has steadfastly opposed state legislation it characterizes as “food and beverage restriction” in schools. See, e.g., Fisk, K., “RE: GMA Letter in Opposition of Texas Food and Beverage Restrictions,” available at (last visited October 27, 2006).' href=https://scholar.google.com/scholar?q=“[T]he+vast+majority+of+most+kids'+calorie+and+fat+intake+comes+not+from+school+lunch,+but+from+family+dinners+at+fast+food+restaurants+or+high+fat+foods+from+the+home+freezer.”+Lawn,+J.,+“School+Foodservice+Faces+a+Growing+Communication+Gap,”+available+at++(last+visited+October+27,+2006);+The+Grocery+Manufacturers+of+America,+an+industry+trade+group,+has+steadfastly+opposed+state+legislation+it+characterizes+as+“food+and+beverage+restriction”+in+schools.+See,+e.g.,+Fisk,+K.,+“RE:+GMA+Letter+in+Opposition+of+Texas+Food+and+Beverage+Restrictions,”+available+at++(last+visited+October+27,+2006).>Google Scholar

Nestle provides a succinct and detailed history of regulations aimed at controlling the sale of competitive and other food of minimal nutritional value. See Nestle, , Food Politics, supra note 20, at 207–211.Google Scholar

“AB 1755 would have banned the sale of junk foods at public school…The prevailing argument against the bill was that the issue should be resolved at the local level. Unfortunately, the high profits from the sales of such foods are not easily relinquished by school boards facing increasing costs and inadequate revenues. An exception to this is the Las Virginies Unified School District, which has adopted a nutrition policy for the sale of foods in all of its schools…. No soft drinks, no artificial coloring or flavoring, or sodium nitrate is allowed. Breads must contain no less than 25% whole wheat and no more than 10% of the calories of any food may be derived from added sugar.” Harris, E. S., “Consumer Advocate: Comprehensive State Food Plan,” Los Angeles Times, August 21, 1977, Part V, at F5.Google Scholar

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“There's no reason why a child should not have a soft drink or a candy bar…School authorities should teach moderation rather than try to prohibit the sale of these items…Tooth decay is caused by a combination of factors…If those advocating curtailment of school sales were as interested in encouraging children to brush their teeth…as they are in trying to take candy away from them, they would accomplish much more.” Interview with James E. Mack; President and General Counsel, National Confectioners, Association, “Curb ‘Junk Foods’ in Schools?: NO – Everything We Eat Need Not have a Scientific, Medical, Nutritional Reason,” U.S. News and World Report 87, no. 13 (1979): at 59; “It is not the place of the Agriculture Department to be telling parents, school administrators, and locally elected school boards how to schedule their cafeteria operations and vending machine hours.” Editorial, “The Spoon-Feeding of Nonjunk,” Los Angeles Times, May 1, 1978, at D4.Google Scholar

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Id.; see also “Court Says U.S. Erred in School Junk Food Ban,” Los Angeles Times, November 15, 1983, at A1.Google Scholar

Competitive foods are defined as foods offered at school other than meals served through school lunch, school breakfast, and after-school snack programs. Current program regulations prohibit the sale of FMNV in the food service areas during the school meal periods. 7 C.F.R. § 210.11(b) (2005). The regulations do not prohibit their sale outside the food service area at any time during the school day. States and local school food authorities may impose additional restrictions. Foods of minimal nutritional value are defined at 7 C.F.R. § 210.11(a)(2) (2005). FMNV are soda water, ices without fruit, chewing gum, and certain hard candies. Appendix B of 7 C.F.R., Part 210 (2005).Google Scholar

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Local schools maintained the ability to control competitive junk foods, although few did so. United States General Accounting Office, School Meal Programs: Competitive Foods are Available in Many Schools; Actions Taken to Restrict Them Differ by State and Locality, available at <http://www.gao.gov/new.items/d04673.pdf> (last visited October 27, 2006).+(last+visited+October+27,+2006).>Google Scholar

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See e.g., the Center for Consumer Freedom's dismissal of scientific evidence linking soda consumption and obesity and the Coca-Cola company's discussion of the same topic: Coca-Cola Company, Information Regarding Obesity and Soft Drinks, available at <http://www2.coca-cola.com/ourcompany/al_obesity_and_softdrinks.html> (last visited October 27, 2006). Coca-Cola's Health and Wellness Institute turns to science in a positive vein; it “focuses on how beverages and beverage ingredients can improve health and help address significant health and nutrition problems around the world.” Coca-Cola Company, Beverage Institute for Health and Wellness, Research Focus, available at <http://www.thebeverageinstitute.org/about_us/research_focus.shtml> (last visited October 27, 2006). (last visited October 27, 2006). Coca-Cola's Health and Wellness Institute turns to science in a positive vein; it “focuses on how beverages and beverage ingredients can improve health and help address significant health and nutrition problems around the world.” Coca-Cola Company, Beverage Institute for Health and Wellness, Research Focus, available at (last visited October 27, 2006).' href=https://scholar.google.com/scholar?q=See+e.g.,+the+Center+for+Consumer+Freedom's+dismissal+of+scientific+evidence+linking+soda+consumption+and+obesity+and+the+Coca-Cola+company's+discussion+of+the+same+topic:+Coca-Cola+Company,+Information+Regarding+Obesity+and+Soft+Drinks,+available+at++(last+visited+October+27,+2006).+Coca-Cola's+Health+and+Wellness+Institute+turns+to+science+in+a+positive+vein;+it+“focuses+on+how+beverages+and+beverage+ingredients+can+improve+health+and+help+address+significant+health+and+nutrition+problems+around+the+world.”+Coca-Cola+Company,+Beverage+Institute+for+Health+and+Wellness,+Research+Focus,+available+at++(last+visited+October+27,+2006).>Google Scholar

The soft drink industry continues to emphasize lack of exercise as the prime cause of childhood obesity, despite attempts to present a more nuanced understanding of the link between the consumption of sugary soft drinks and obesity. Compare Williams, S., “More Limits Sought on Soda Sales in Schools Health Experts Say Soft Drinks Lead to Obesity in Kids,” The Columbus Dispatch, Friday, January 9, 2004, with this recent statement on the American Beverage Association website: “A main contributing factor of obesity is lack of exercise. University of North Carolina researchers found that in the past 20 years adolescent obesity rates climbed 10 percent, while calorie intake only rose one percent. During the same period, children's physical activity levels declined 13 percent.” American Beverage Association, Obesity, available at <http://www.ameribev.org/industry-is-sues/healthy-balanced-diet/obesity/index.aspx> (last visited October 27, 2006).Google Scholar

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The struggle to change the school food environment is illustrated by the historic nine hour debate in the Connecticut state legislature in which every conceivable argument against removing junk foods and sugary beverages was offered primarily by Republicans. The bill, passed by the Democratic majority in June 2005, was vetoed by the governor on the grounds, inter alia, that it improperly usurped control of local schools. An Act Concerning School Nutrition, available at <http://www.cga.ct.gov/2005/act/Pa/2005PA-00117-R00SB-01309-PA.htm> (last visited October 27, 2006); video of legislative debate available on Connecticut Network webpage, available at <http://www.ctn.state.ct.us/> (last visited October 27, 2006); SB 1309, May 15, 2005; Press Release, Governor Rell Vetoes School Nutrition Bill, June 14, 2005, available at <http://www.ct.gov/governorrell/cwp/view.asp?Q=294564&A=1761> (last visited October 27, 2006). The Connecticut legislature narrowly passed a similar bill that now includes financial incentives for schools to offer healthier food options and Governor Rell signed it into law on May 19, 2006. Connecticut, An Act Concerning Healthy Food and Beverages in Schools, S.B. 373 (May 19, 2006).+(last+visited+October+27,+2006);+video+of+legislative+debate+available+on+Connecticut+Network+webpage,+available+at++(last+visited+October+27,+2006);+SB+1309,+May+15,+2005;+Press+Release,+Governor+Rell+Vetoes+School+Nutrition+Bill,+June+14,+2005,+available+at++(last+visited+October+27,+2006).+The+Connecticut+legislature+narrowly+passed+a+similar+bill+that+now+includes+financial+incentives+for+schools+to+offer+healthier+food+options+and+Governor+Rell+signed+it+into+law+on+May+19,+2006.+Connecticut,+An+Act+Concerning+Healthy+Food+and+Beverages+in+Schools,+S.B.+373+(May+19,+2006).>Google Scholar

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Although the wellness committees and the ABA/Clinton agreement are both quite new, media reports have appeared relating instances in which wellness committees are seeking to provide healthier vending machine options in their school districts. See, e.g., Farnam, J., “ISD 166 to Ban Soda Pop at School,” Cook County News-Herald, June 22, 2006.Google Scholar

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From 1989 to 1993, Congress seemed aware of the issue but did little beyond encouraging general public awareness. For example, the 101st Congress enacted programs such as National Checkup Week and National Weight Loss Month. It first mentioned the obesity epidemic in 1993, when the National Institutes of Health Revitalization Act of 1993 called upon the NIH to research obesity. Although many programs have been proposed at the state and local level, fewer have actually been enacted.Google Scholar

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For example, New York has proposed a tax credit of up to $1,000 for health-related purchases like exercise equipment and gym memberships. Bill A09416 – an act to amend the tax law, in relation to providing a tax credit of up to $1000 for certain health-related problems, cited in Waisanen, B., “Taxing Behavior,” State Legislatures 30, no. 6 (2004): 30–31, at 31.Google Scholar

There are not many studies on the issue, but a few have linked the built environment to obesity. See, e.g., Jackson, R. J. and Kochtitzky, C., Creating a Healthy Environment: The Impact of the Built Environment on Public Health, available at <http://www.cdc.gov/healthyplaces/articles/Creating%20A%20Healthy%20Environment.pdf> (last visited October 27, 2006). However, it is possible that active people self-select by choosing to live in walkable areas. See Handy, et al., “Self-Selection in the Relationship between the Built Environment and Walking,” Journal of the American Planning Association 72 (2006): 55–74.+(last+visited+October+27,+2006).+However,+it+is+possible+that+active+people+self-select+by+choosing+to+live+in+walkable+areas.+See+Handy,+et+al.,+“Self-Selection+in+the+Relationship+between+the+Built+Environment+and+Walking,”+Journal+of+the+American+Planning+Association+72+(2006):+55–74.>Google Scholar

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A 1965 panel focusing on children's advertising, moderated by former FTC chairman Newton Minow, debated “whether advertisers ‘are using five year olds to pressure parents into buying their products.’” Gavin, J. M., “Panel Doesn't Kid Around about Effectiveness of Children's Ads,” Chicago Tribune, July 13, 1965, at C8. A subsequent FTC chair, Lewis Engman, chastised the ad industry, already spending $400 million in the early 1970s on children's advertising, for its lack of effective self-regulatory standards. He predicted: “If television advertising…fosters dietary habits which endanger their health .I think TV ads directed at children will soon find itself circumscribed by legal restrictions and legal requirements.” Shifrin, C., “A Look at Children's TV Advertising,” Washington Post, August 7, 1973, at B4. Minow subsequently wrote a scathing indictment of the FTC and industry's failure to adequately protect children. Minow, N., LaMay, C., Abandoned in the Wasteland: Children, Television, & the First Amendment (New York: Hill and Wang, 1996).Google Scholar

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Testimony by nutritionists, dentists, and doctors on the negative health impacts of advertising foods led the Committee's conclusion that “[t]elevision advertises food to children which is bad for children's health…and are linked to major medical problems including obesity, diabetes, and heart disease.” Id., at 60–61. Many of the arguments currently offered in support of government regulation of children's advertising from a public health standpoint were already substantially developed decades ago.Google Scholar

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Both agencies derive their authority to regulate advertising from the Commerce Clause of the Federal Constitution, which grants the federal government jurisdiction over commerce among states. The legal implications of Commerce Clause authority will be discussed in Part V. In 1974, CSPI (unsuccessfully) petitioned the FDA to require health warning labels on sugary cereals. Rice, W., “Proposing a Public Caveat on Sugar Cereals,” Washington Post, August 2, 1974, at B1. Michael Jacobson had proposed that cereals that contained more than 10 percent sugar would have to be promoted as a snack rather than a breakfast cereal and carry a label stating “Contains….% Sugar[.] Frequent Use Contributes to Tooth Decay and Other Health Problems.” Id. This predated the NLEA. At the time, cereal companies' practices differed with regard to the disclosure of sugar content in cereals and other foods.Google Scholar

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For example, in 1975 the Federal Trade Commission (FTC) proposed a ban on television advertising of premiums directed at children. Annual report of the Federal Trade Commission, 1975, available at <http://www.ftc.gov/os/annualreports/ar1975.pdf> (last visited October 27, 2006). The use of premiums to sell products to children has long been a bane of government and industry regulators. See Children's Advertising Review Unit, Sweepstakes Directed to Children, available at <http://www.caru.org/news/sweepstakes.asp> (last visited October 27, 2006). Nevertheless, advertisers continue to use premiums to lure children to their products. Fried, E., “Assessing Effectiveness of Self-Regulation: A Case Study of the Children's Advertising Review Unit,” Loyola of Los Angeles Law Review 39 (2006): 93–138.Google Scholar

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An advertisement can be unfair without being deceptive: That is, it may truthfully depict a product and its attributes. What makes it unfair is that 1) children don't realize it is a sales pitch, or 2) that the product could ultimately lead to health-related problems such as cavities, poor nutrition, or obesity.Google Scholar

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In 1982, Timothy J. Muris, then Director of the FTC's Bureau of Consumer Protection, wrote: “When we arrived at the Commission, there was disrespect for the agency among businesses, on Capitol Hill, and in the legal community. This disrespect was well-earned. The Commission in the 1970s saw itself as the second most powerful legislature in Washington. The leaders of the previous administration had a deep distrust for business. Ill-considered proceedings resulted, such as the infamous children's advertising rulemaking.” Muris, T. J., “The Consumer Protection Mission: Guiding Principles and Future Direction,” Antitrust Law Journal 51 (1982): 625–632, at 625; see also Applbaum, A., Mike Pertschuk and the Federal Trade Commission (John F. Kennedy School of Government, Harvard University, 1981).Google Scholar

The staff proposed several alternatives: Ban all TV for any product young children below the age of 8, ban ads for sugared products for children below the age of 12, and require that TV ads aimed at children older than 12 be balanced by nutritional or health disclosures. Each of these recommendations focused upon an environmental solution to prevent childhood disease by preventing television advertisements from entering the home as a public health intervention rather than requiring parents to act as a human shield against the bombardment. See FTC Staff Report on Television and Advertising to Children, supra note 163.Google Scholar

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Although CARU points to its ability (and sole “enforcement” mechanism) to refer cases it cannot satisfactorily resolve to the FTC, few are actually referred and barely any are initiated by the FTC. Kelley, B., Public Health Advocacy Institute, Industry Controls Over Food Marketing to Children: Are They Effective? (2005), available at <http://www.phaionline.org/downloads/caru.analysis.pdf> (last visited November 30, 2006).+(last+visited+November+30,+2006).>Google Scholar

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See Center for Science in the Public Interest, Press Release, Parents and Advocates Will Sue Viacom & Kellogg, Washington, D. C., January 18, 2006, available at <http://www.cspinet.org/new/200601181.html> (last visited October 31, 2006).+(last+visited+October+31,+2006).>Google Scholar

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In its Motion the industry relies on a series of cases to show irreparable harm. What is interesting is the industry's reliance on cases that involve political speech on the part of individuals. Industry seeks to collapse the appropriate distinction between the reduced protections for commercial speech and the high protections afforded the political speech of citizens. Elrod v. Burns, 427 U.S. 347 (1976) and Newsom v. Norris, 888 F. 2d 371 (6th Cir. 1989), cited in Motion at 27. While this language can be partially attributed to zealous advocacy, such an absolutist position by commercial interests is not uncommon.Google Scholar

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Collapsing the distinction between commercial speech and non-commercial speech and subjecting both to the same judicial scrutiny would undermine the state's ability to protect the health and welfare of the population. See Parmet, and Smith, supra note 27.Google Scholar

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On the question of whether litigation should be employed as a means to force reformulation of fast foods or more complete and available nutritional information, industry promotes the oftcited statistic that 89% of consumers “strongly disagree that lawsuits should be slowed against fast food chains” as a means of combating obesity. Fifty-four percent of those polled “believe that the individual, and not the corporation, is solely responsible for healthy eating.” That leaves a sizable forty-six percent casting a critical eye on corporate responsibility. Fried, E., in Crawford, D. and Jeffrey, R., eds., “The Potential for Policy Initiatives to Address the Obesity Epidemic: A Legal Perspective from the United States,” in Obesity Prevention in the 21st Century: Public Health Approaches to the Obesity Pandemic (London: Oxford University Press, 2005): 265–283.Google Scholar

Pelman v. McDonald's, often derided as frivolous and the catalyst for legislation that shields the food industry from litigation based on claims of obesity, continues its journey through the courts four years after its predicted dismissal; claims of deceptive advertising remain to be adjudicated. Pelman v. McDonald's Corp., 396 F.3d 508 (2nd Cir. 2005); motion granted by Pelman v. McDonald's Corp., 2005 U.S. Dist. LEXIS 24869 (S.D.N.Y. 2005) .Google Scholar

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See Part V for a more complete discussion of litigation as a public health strategy.Google Scholar

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For a discussion of several of these cases, see Parmet, W., “After September 11: Rethinking Public Health Federalism,” Journal of Law, Medicine & Ethics 30 (2002): 201–211, at 204.CrossRefGoogle Scholar

See, e.g., Kassel v. Consolidated Freightways Corp. of Delaware, 450 U.S. 662 (1981).Google Scholar

See, e.g., id. (invalidating state law mandating that highway trucks be no more than 60 feet long as a burden on interstate commerce); see Parmet, and Banthin, supra note 27 (discussing the difficulty of effectively controlling internet tobacco sales under modern dormant commerce clause doctrines); Allen, D. M., Annotation, , “Validity Under Commerce Clause (Art I, §8, cl 3), of State Statutes Regulating Labeling of Food,” American Law Reports Federal 79 (2006): 246–272.Google Scholar

Preemption was an issue when public health advocates tried to protect the public by restricting smoking. The tobacco industry sometimes supported statewide anti-tobacco laws because the laws were weakened by political compromise and preempted stricter local measures. Siegel, M. et al., “Preemption in Tobacco Control: Review of an Emerging Public Health Problem,” JAMA 278 (1997): 858–863. This could also become a problem with obesity-related laws.CrossRefGoogle Scholar

See, e.g., Allen, D. M., Annotation, , “Federal Pre-Emption of State Food Labeling Legislation or Regulation,” American Law Reports Federal 79 (2006): 181–206.Google Scholar

Protection of public health has been and is a long-standing role of state and federal governments that has been a long-understood facet of state power. Public health has a rightful and traditional role in shaping the relations of the states and the federal government. See, e.g., Parmet, W., “From Slaughter-House to Lochner: The Rise and Fall of the Constitutionalization of Public Health,” American Journal of Legal History 40 (1996): 476–505.CrossRefGoogle Scholar

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Gostin, Compare L., “When Terrorism Threatens Health: How Far are Limitations on Personal and Economic Liberties Justified?” Florida Law Review 55 (2003): 1105–1170; with Parmet, W. E., “Liberalism, Communitarianism, and Public Health: Comments on Lawrence O. Gostin's Lecture,” Florida Law Review 55 (2003): 1221–1240; and see Mariner, supra note 31. Also see Daynard, R. A., “Regulating Tobacco: The Need for a Public Health Judicial Decision-Making Canon,” Journal of Law, Medicine & Ethics 30 (2002): 281–289 (discussing the importance of judicial training to ensure that courts can recognize this tension when presented with it).Google Scholar

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Id., at 84–85. It is also important to mention the transaction costs of litigation. Facing large expenses and small awards, many lawyers may be reluctant to bring such lawsuits even if they are highly beneficial to the public. Brunet, E., “Debunking Wholesale Private Enforcement of Environmental Rights,” Harvard Journal of Law & Public Policy 15 (1992): 311–324, at 313. Likewise, if fees are too high, lawyers may encourage clients to bring cases of limited merit. Further, causation requirements and damage calculation in tort law are designed for individual plaintiffs. See Smith, , “Setting the Stage,” supra note 11. Class actions may help address this problem, but they are not always appropriate for plaintiffs whose exposure to an agent or severity of disease varies, eg., Lin, A., “Beyond Tort: Compensating Victims of Environmental Toxic Injury,” Southern California Law Review 78 (2005): 1439–1528, at 1516–1517, and can end up benefiting lawyers more than class members. Coffee, J. C. Jr., “Understanding the Plaintiff's Attorney: The Implications of Economic Theory for Private Enforcement of Law through Class and Derivative Actions,” Columbia Law Review 86 (1986): 669–727, at 678–79.Google Scholar

Pelman v. McDonald's is a good example. The court dismissed many of the plaintiff's individually-focused claims but allowed a consumer protection claim based on harmful advertising to proceed. The court ruled that the plaintiffs did not need to allege highly specific causation, only a general connection between their injuries and McDonald's conduct. Pelman v. McDonald's Corp., 396 F.3d 508 (2nd Cir. 2005). The court thus directed the plaintiffs' focus to broader issues than their own personal experiences. See Smith, , “Setting the Stage,” supra note 11.Google Scholar

See, e.g., Connecticut Light & Power Co. v. Secretary of Labor, 85 F.3d 89, 96 (2d Cir. 1996) (invalidating a clause in a utility worker's settlement agreement that undermined federal whistleblower protection law); United States v. Northrop Corp., 59 F. 3d 953, 968 (9th Cir. 1995), cert. denied; Northrop Grumman Corp. v. United States ex rel. Green, 518 U.S. 1018 (1996) (invalidating a clause prohibiting an employee from exposing violations of the federal False Claims Act); Bowman v. Parma Board of Education, 542 N.E.2d 663, 666 (Ohio Ct. App. 1988) (invalidating secrecy provision that sought to bind school district to silence regarding pedophilia investigation of teacher).Google Scholar

Advocates and the public need information to ascertain the true costs of health-affecting behaviors, eg., Givelber, D. and Robbins, A., “Public Health Versus Court-sponsored Secrecy,” Law and Contemporary Problems 69, no. 3 (2006): 131–139, available at <http://www.law.duke.edu/shell/cite.pl?69+Law+&+Contemp.+Probs.+131+ (summer+2006)> (last visited November 30, 2006), and if there is enough causation to settle, there may also be enough to necessitate action on the part of public health officials. Id. Settlements may be beneficial to plaintiffs, who can then avoid a long and expensive lawsuit, and to defendants, who can reduce exposure that would lead to future litigation or regulation, but they pose a problem for the public. For example, an asbestos producer settled with 11 plaintiffs in 1933 but continued to use asbestos for the next 40 years because the settlement was unknown to the government or to the public. Id.Google Scholar

See Smith, , “Setting the Stage,” supra note 11.Google Scholar

Here we to refer to not only the food industry as corporations but also to business associations, trade groups, and self-regulatory bodies that represent purely free market interests and public interests secondarily if at all.Google Scholar

Dodge v. Ford Motor Co., 170 N.W. 668 (Mich. 1919) For the modern expression of this principle see, e.g., 1 Principles of Corporate Governance §2.01 (1992).Google Scholar

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In the Civil War era, consumers enforced their rights mostly through private litigation, suing tort law to protect their property. Courts were resistant to governmental regulation (as in Lochner), and when regulation did occur it was highly susceptible to corruption, such as bribery. Glaeser, E. L. and Shleifer, A., “The Rise of the Regulatory State,” Journal of Economic Literature XLI (2003): 401–425, at 404–05. Regulatory oversight began slowly beginning in the late 1860s and greatly expanded during the first two decades of the 19th century. Examples include the Interstate Commerce Act of 1887 (restricting railroad contracts), the Sherman Act of 1890 (establishing federal oversight of monopolies and trusts), the Pure Food and Drug law of 1906 (controlling the sale of medicine), the Federal Reserve Act of 1913 (implementing controls on banking), and the Clayton Act of 1914 (further regulating monopolies). Id. However, during World War I, though the federal government continued to pass laws controlling industry, support for regulation again decreased as efficiency of production became the primary goal. The head of the Food Administration at this time, Herbert Hoover, viewed the role of regulatory agencies as facilitating cooperation between private entities. Rabin, R. L., “Federal Regulation in Historical Perspective,” Stanford Law Review 38 (1986): 1189–1326, at 1235–1237. In the 1920s, regulations were oriented more towards allowing government and industry to work together. Id., at 1235–41.CrossRefGoogle Scholar

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Some postulated that industry capture of agencies made regulation inefficient and ineffective. Hanson, J. and Yosifon, D., “The Situation: An Introduction to the Situational Character, Critical Realism, Power Economics, and Deep Capture,” University of Pennsylvania Law Review 152 (2003): 129–346, at 203–04. However, powerful entities like the Teamsters opposed deregulation, as did Congress. Moore, T. G., “Moving Ahead,” Regulation 25, no. 2 (2002): 6–13, at 6–7. But in general, the public was opposed to regulation: “[T]he deregulation movement was…a one-shot response to the peculiar political conditions of the late 1970s[:]…disillusion[ment] with the efficacy of government intervention.” Peltzman, S., “The Economic Theory of Regulation after a Decade of Deregulation,” Brookings Papers on Economic Activity, Special Issue (1989): 1–59, at 2.CrossRefGoogle Scholar

For example, the Motor Carrier Act of 1980 relaxed licensing requirements for the trucking industry. See Moore, supra note 249, at 6–10.Google Scholar

From the late 1970s to the late 1980s, the market rose to global prominence. Capitalism began to spread throughout developing countries, socialist regimes fell, and in the United States LBOs and hostile takeovers “washed away…many of the failed conglomerates.” Gilson, R. J. and Kraakman, R., “Takeovers in the Boardroom: Burke versus Schumpeter,” Business Lawyer 60 (2005): 1419–1433, at 1433.Google Scholar

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Some commentators credited deregulation with the creation of massive wealth in the United States. See, e.g., Barnard, B., “Freeing Europe's Economy: Deregulation Could Save Europeans Billions but Proponents Worry the Drive to Cut Red Tape is Running Out of Steam,” Europe (April 2002): 16–17 (comparing the growth in the 1990s of the deregulated American economy to that of heavily-regulated Europe). In the 1970s and 1980s, many supporters of deregulation argued that regulating industries, whether through price controls, licensing, or setting minimum standards, inhibits competition and leads to economic inefficiency. See Rabin, supra note 245, at 1317–1318. Some see the growth of the American economy in the 1990s as a vindication of this viewpoint. As public trust in industry increased, industry has become bolder, emphasizing “self-regulation and voluntary compliance.” Estlund, C., “Rebuilding the Law of the Workplace in an Era of Self-Regulation,” Columbia Law Review 105 (2005): 319–404, at 340–341. Nonetheless, deregulation is hardly a simple solution. Some scholars believe that deregulation in one sector of the economy can lead to “bottlenecks and market imperfections” in other sectors, necessitating further regulation. Rose-Ackerman, S., “Defending the State: A Skeptical Look at ‘Regulatory Reform’ in the Eighties,” University of Colorado Law Review 61 (1990): 517–535, at 520–22 (discussing the airline deregulation efforts).Google Scholar

Such scandals include The Savings and Loan crisis and more recent incidents involving Worldcom and Enron. Kahn, F. S., “Bombing Markets, Subverting the Rule of Law: Enron, Financial Fraud, and September 11, 2001,” Tulane Law Review 76 (2002): 1579–1643, at 1623, n. 123.Google Scholar

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Economist George Stigler first introduced the notion of capture. Stigler, G., Memoirs of an Unregulated Economist (New York: Basic Books, 1988): at 8.Google Scholar

Jon Hanson and David Yosifon referred to Stigler's concept as “shallow capture” and coined the term “deep capture” to develop the concept further. See Hanson, , Yosifon, supra note 249, at 218.Google Scholar

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