ETHICAL ISSUES

Ethics of Obesity Legislation and Litigation:A Public-Health Policy Debate

Annette G. Greer, PhD, RN,1 and Janice Butler Ryckeley, MSA, MPH, ANP-BC2

Obesity policy is an emerging priority among legislators and policy developers, who have posited that litigationhelps to frame and support said policy. There is a national need to debate the merits of obesity legislationand litigation, and this requires a forum and a guiding framework. Evidence-based research often guides thepolicy but may be insufficient in terms of the ethical questions the legislation poses. Triangulation of evidence,theory, and ethical principles used in public health, and analysis of the level of autonomy represented in obesitypolicy, can be used in a counterargument to guide debate about obesity legislation and litigation. Healthcareprofessionals should engage in interprofessional, ethical scrutiny of legislation and litigation prior to offeringsupport to obesity policy to ensure that it does not create an environment of social stigmatization. Obesity policythat does not integrate ethical principles and fails to seek counsel from the population of service may risklimiting cultural feasibility and may result in actual harm.

Introduction

Policy to combat the epidemic of obesity in the UnitedStates is in the news on a daily basis, as is litigation related

to obesity health issues claiming the food industry is at greaterfault than the individual consumer. Nursing and other healthprofessionals are engaged, developing programs and con-ducting interventions to improve the health status of our in-creasing obese populations. While many of these attempts areevidence-based, the literature demonstrates that health pro-fessionals often fail to consider the ethics of policy designrelative to decision making in obesity health policy.1 The ex-tent to which improvement actions should be based on evi-dence and ethics when making health policy decisions hasbeen explored by Tannahill.2 He noted that for any givenhealth-improvement topic such as obesity, action is possible ata number of levels. Application of the ecological model hasdemonstrated that legislation that is enacted in the form ofhealth policy can affect all levels, from the individual to anentire society.1 Policy makers should consider use of an ethicalframework to analyze legislation that is posed relative tohealth policy.3 Tannahill2 proposed a triangulation modelthat allows for policy options to be considered against anagreed-upon set of ethical principles. The explicit processwould use the available evidence (and identification of notedevidential gaps) combined with theory as a basis for theemerging options. Evidence and theory would establish thelitmus from which effectiveness could be monitored and

evaluated, while the culture would frame the measures bywhich policy options could be judged as feasible, all throughthe lens of ethical principles.

However, the policy enacted, whether utilitarian or autono-mous, could be viewed as positive or negative, depending uponthe ethical lens used when the policy is established. If a positiveview is taken, the enacted health policy may be upheld as abeneficent standard, an equitable means of distributing legalresponsibility, or moral empowerment toward unified health.If a negative view is taken of the enacted health policy, it couldbe opposed as an infringement on individual human rights, afailure to address social responsibility, or the advancement ofmaleficence in an attempt to hold individuals and systems ac-countable for adherence to health policy. Have et al.4 found thatwhile public-health ethics helps to support a framework forevaluation of obesity policy, it does not help to guide the ethicalconflicts that arise in development of obesity, and that culturalfeasibility and psychosocial impacts of obesity health policy aredetermined to be missing links in existing models. This articlefocuses on the ethical debate central to legislative and legaldecision-making relative to obesity health policy.

Rationale for Ethical Debate of Obesity Health Policyby Health Professionals

Why is it important to clarify the rationale for debate innursing and other health professions on the ethical decision-making process for obesity health policy? Brody5 observes

1Department of Bioethics and Interdisciplinary Studies, Brody School of Medicine, East Carolina University, Greenville, North Carolina.2Columbia Heart Clinic, Columbia, South Carolina.

BARIATRIC NURSING AND SURGICAL PATIENT CAREVolume 6, Number 4, 2011ª Mary Ann Liebert, Inc.DOI: 10.1089/bar.2011.9945

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that professional health organizations establish and promoteethical codes of conduct for their memberships, setting stan-dards for ethical behaviors in practice. These ethical codesof healthcare practice should be the basis on which judg-ments are made for obesity programs, procedures, and poli-cies. Professional health organizations such as the AmericanNurses Association and the American Medical Society serveto promote the public image of the health professions, and thepositions they take on health policy related to obesity arelooked upon by the public with trust and respect.5 Ethicalcounterargument provides a mechanism for debating thecultural feasibility and psychosocial impacts of any potentiallegislation for obesity programs, and can assist the decision-making process in a manner based on principle.

Process for Ethical Counterargument Relatedto Obesity Health Policy

In engaging in this ethical counterargument, the NuffieldCouncil on Bioethics ‘‘Intervention Ladder,’’ designed specifi-cally for the consideration of obesity prevention, is applied.4

Fundamentally, the intervention ladder is a measurement ofautonomy. It determines whether choice is (1) eliminated, (2)restricted, (3) guided by disincentive, (4) guided by incentive,(5) guided by change in given default policy, (6) enabling ofchoice, (7) informative, or (8) cognizant of activity while takingno action. Following Tannahill’s triangulation model, eachobesity policy issue reviewed will identify the evidence pre-sented to determine whether the issue has a theoreticalframework to support its application. Next, the obesity healthpolicy will be judged in accordance with public-health ethicsprinciples and biomedical principles. Finally, application of theprinciple ‘‘do no harm’’ will be examined relative to culturalfeasibility and the potential psychosocial impact of any obesityhealth policy issue. Guided by these frameworks, counterar-guments can be standardized on the basis of an ethics of obesitylegislation and litigation.

Pro Legislation/Litigation for Obesity Policy

The growing obesity problem in the United States, partic-ularly among our children, warrants urgent attention. Clearlywritten regulation is very much in order. According toBrownell and Warner,6 an astonishing two-thirds of the U.S.adult population is overweight. Proposed policy addressingobesity must meet the test of being a morally beneficentstandard, an equitable means of legal distribution, or moralempowerment toward unified health. With this in mind, wepropose that the current disposition toward health shift fromthe exclusive interests of the individual to the moral interestsand good for the community as a whole.

The many stakeholders in formulating health policy todayinclude the U.S. Public Health Service (USPHS), Departmentof Health and Human Services (DHHS), the Centers for Dis-ease Control (CDC), and various other governmental agenciesand professional consulting bodies such as the AmericanAcademy of Pediatrics (AAP) and the Institute of Medicine(IOM). Food marketing has become a focus of advertisingtargeting naı̈ve children with temptations of heavily sugaredand nutritionally empty foods. This marketing approach isnow subject to increased scrutiny and public awareness, butany regulatory or ethical push-back is complicated and chal-lenged by dwindling budgets at federal, state, and local levels.

Wilde7 cites racial, ethnic, and income disparities in thechildhood obesity prevalence and its suspected causal factors,raising important questions of social inequality. This placesthe onus on society to address and monitor nutritional mattersand to demand that nutritional information be fully disclosedto the public. Some evidence of success along these lines isillustrated by the average 9-year-old, who can point out thenumber of servings, calories, and fat grams on packaging.Clearly, this constitutes knowledge and education that bene-fits both the individual and society as a whole. Contextually,there are many who take this information to be a constitu-tional right and who believe the responsibility is on manu-facturers to prove proactively the nutritional merit oftheir products.7 In that vein, support is found for the ethicalprinciple that ‘‘public health institutions should providecommunities with the information they have that is neededfor decisions on policies or programs and should obtainthe community’s consent for their implementation.’’8 Self-regulation in the food industry addresses four primaryinitiatives: beverages and foods in schools (one), marketing tochildren (two), and menu labeling (one).9 But Wilde7 remindsus that media content, long a topic of debate, has been shiftingaway from the promotion of healthy foods and beverages,and that scrutiny of media content has failed to stem the high-calorie, low-nutrition food advertising to which we are sub-ject. These changes have taken place in an environment thatwas devoid of controls until approximately 10 years ago.

In North Carolina, the percentage of overweight or obesechildren is 33% versus 30% of all American adolescents in2008–2009. Nationally, 16% of girls and more than 18% ofboys were classified as ‘‘obese’’ between 2004 and 2006, withmuch higher percentages for children whose body mass indexplaces them at risk for obesity, incurring costs of $11 billion forprivate insurance and $3 billion for Medicaid.7

Researchers further decry the obesity epidemic by point-ing to changing diagnosis statistics, from adult onset dia-betes to increasing numbers of Type 2 diabetes cases. Arationale for this change is that no longer is onset limited toadults. Children as young as 8 years of age are developingthe disease. Additionally, the assertion further submittedthat young adults in Canada were developing complicationsof diabetes with early onset of blindness, amputation, kidneyfailure, and death, all attributable to obesity and poor nu-tritional habits.6 It is this evidence-based information thathelps the public-health sector designate obesity as a funda-mental cause of disease, which implies an increased need forhealth intervention.8

What remedy, then? Clearly, the good habit of readinghealth information on food packaging can be successfullytaught at an early age, as evidenced by the average 9-year-old’s ability to interpret such labeling.9 In recent years, 40% ofchildren in Delaware were found to be overweight or obese,the highest prevalence in the nation. With that in mind, theNemours Foundation10 established vending guidelines forselections and portion sizes for better overall student foodchoices. Using the 4 Ps for product, promotion, price, andplacement, they worked closely with vendors to identifymarketing for foods that were categorized according to nu-tritional value as ‘‘Go’’ (almost anytime), ‘‘Slow’’ (sometimes),or ‘‘Whoa’’ (once in a while). Use of these simple strategieshelps empower vulnerable community members and aimsto ensure that the requisite resources for health maintenance

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are accessible to all, even to children making autonomouschoices.8 Worthy as this effort is, more regulatory work isneeded to address firmly the clinical issues associated withchildren’s diet, nutrition, and health.

As of 2009, media self-regulation is also evident in thetechniques used by Disney and Nickelodeon, which constituteexamples of corporate public-health policies implemented in amanner that enhances the physical and social environment andthat supports decreasing obesity.8 Using their own criteria,Disney has discontinued licensing of its proprietary names andcharacters on products with more than 30% fat content formeals and 35% for snacks, and more than 10% of calories fromsaturated fats for meals and snacks and more than 10% fromadded sugars for meals and snacks.9 For its part, Nickelodeonuses its licenses and patents on products that meet a ‘‘better foryou’’ criterion without giving further specifics on nutritionalguidelines.9

In our media culture, the public can easily fall prey to deceitand fraud. The current status of the food industry in someways compares to the former grandeur of the tobacco indus-try, whose practice of adding nicotine to tobacco as an ad-dicting agent comes particularly to mind. U.S. District JudgeH. Lee Sarokin stated in a 1992 pretrial ruling ordering thetobacco companies to turn over internal research documents:‘‘All too often in the choice between the physical health ofconsumers and the financial well-being of business, conceal-ment is chosen over disclosure, sales over safety, and moneyover morality. Who are these persons who knowingly andsecretly decide to put the buying public at risk solely for thepurpose of making profits and who believe that illness anddeath of consumers is an apparent cost of their own pros-perity?’’6 So the issue goes beyond full disclosure in packag-ing. The entire structure of food marketing and corporateinterests comes into play. Just as it bears asking who is mostserved by the addition of nicotine to cigarettes, so too weshould ask who is most served by the addition of caffeine tobeverages or fat to snacks. We have seen that consumers, evenin full knowledge of tobacco-industry depredations, havenot entirely stopped using tobacco. But they have cut back. Thesame would likely be true of consumers of unhealthy foods.First of all, they may not know the content of their foodchoices and thus could not give knowing consent, an ethicalissue in its own right. Second, even though some consumerswould still make unhealthy choices in full knowledge of foodcontent, that knowledge, once sufficiently widespread, canlead to better (if still imperfect) choices.

The interests of all of society are put at risk when privateinterests go unexamined and unregulated. Brownell andWarner6 observe that the tobacco industry vigorously ad-vertised its partnership with public health, even as it workedto prevent or delay shifts in public opinion that might supportlegislative, regulatory, or legal actions and thus erode salesand profits. We know today that the great prevalence oflung cancer and chronic obstructive pulmonary disease areattributable to tobacco abuse, costing large sums in healthcareexpenditures. How are the human and economic costs asso-ciated with obesity any different from an ethical standpoint?Theoretically, they are not. We are all at risk if we are ill-informed. For us to be responsible citizens and parents, wecannot allow evidence and facts to be forever obscured bymarketing hyperbole. Obesity must be addressed in aggres-sive public policy as the emerging epidemic it is. The chal-

lenge is ours to demand, at minimum, full and true infor-mation about the foods we consume.

Con Legislation/Litigation for Obesity Policy

There is no disagreement about the enormity of the obe-sity epidemic and its impact on the health status of bothAmerican and global populations. The issue is whetherpublic-health ethical principals are being used by health-professional advocates to inform the mechanisms of legis-lation and litigation properly. If the problem and proposedremedies are not viewed through an ethical lens, resourcesdedicated toward obesity management are likely to be ap-plied inappropriately and inefficiently. Examples follow,highlighting cases in which political, economic, and socialresources have been ineffectively used in attempts to inter-vene in the obesity epidemic.

Antler11 conducted a critical analysis of the Pelman v.McDonald’s Corporation case, where a class action lawsuit inNew York State was filed on behalf of obese, urban, pooryouth against the McDonald’s Corporation, claiming falseadvertisement relative to nutritional quality. Antler proposedthat litigation brought against the food industry served tomitigate the effects of obesity in disparate populations. Antlerdocumented that obesity affects minority poor at dispropor-tionately higher rates than other racial and socioeconomicpopulations. Antler further posited that individual responsi-bility (autonomy and accountability) for obesity is compli-cated by a confluence of environmental factors such asavailable high-calorie food sources at low cost (McDonald’s),over which the individual has no control, or limited control,due to socioeconomic and access issues.

Antler submitted that it is the ‘‘build environment’’ and the‘‘nutritional environment’’—the infrastructure of place—thatcontributes to the issue of obesity. It is within such environ-ments that marketing media have designed advertising tocapitalize on cultural social milieus, with emphasis on culturalfood selections, thus exploiting the minority poor and con-tributing to the obesity epidemic.11 Those filing the suitclaimed that deception in advertisement relative to nutritionalfood sources resulted in adverse health effects and diseasesrelated to obesity. The case was originally dismissed andpassed around the court system in various appeals. It wasAntler’s premise that litigation of this nature is vital to thedevelopment of public-health policy through the regulation ofenvironmental factors that may result in choice limitation toprotect the public, especially those in disparity. However, theclaim that lack of sufficient disclosure of nutritional valueseems inadequate because nutritional information is availableon placemats, online, or upon request at sales locations.

One reason this suit may have failed is that it did not presentevidence based on any theoretical framework(s), but insteadbased its argument upon broad assumptions. In fact, the liti-gation seemed to take a paternalistic approach, supportingrestrictions of autonomous choice of the individual, neitherendorsing guided incentives to include better food choices nortaking heed of individual consumer rights. A better approachwould have been to negotiate for more consumer-friendly in-dustrial communication about nutrition, marketing of culturalfoods using healthier preparations, and presentation of imagesthat reflected proper serving sizes to achieve community healthin a way that respects the rights of individuals.8

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Of the paternalistic approach, we should ask what legislativeactivities are being pursued by American political representa-tives. Boehmer, Brownson, Haire-Joshu, and Dreisinger12

conducted a study across all 50 states and found that no fewerthan 717 bills and 134 resolutions were proposed relating tochildhood obesity, and it would have been more had exclu-sion criteria not been set eliminating legislation that consideredlitigation restrictions, food labeling requirements, Medicaidcoverage for obesity-related disease, and insurance coveragefor gastric bypass. To the credit of the given state and nationallegislators, the bills and resolutions that did pass demonstratedempowerment of community through enabling choice andproviding incentives to prevent obesity such as walking paths,farmers markets, and statewide initiatives for public educa-tion.12 However, what of the 83% of proposed bills and 47% ofresolutions that failed to pass? They amounted to a costly wasteof political capital, failing to meet threshold criteria for (1)existence of a sufficient evidence base, (2) development ofeffective coalitions, and (3) commitment of policy makers.12

Development of health policy relating to obesity would be bestserved by considering these factors, and ethical principles.

Application of public-health ethics in design of obesitypolicy requires that legislators and litigators seek the infor-mation needed to implement effective policies and programsthat protect and promote health resources—an evidence-based, proactive (not reactive) approach to health. Further,obesity policy should apply public-health ethics by (1) meet-ing demands that policy makers act in a timely manner on theinformation they have about obesity, while acting withinthe resources and the mandate given to them by the public;(2) designing interventions to prevent obesity that respectdiverse values, beliefs, and cultures in the community; (3)providing information needed to inform community deci-sions on policies or programs; (4) garnering the consent forpolicy implementation needed for decisions on policies orprograms; and (5) obtaining the community’s consent forimplementation.8 It is also important, and ethical, to measurethe outcomes of legislated policies to ensure that successesare supported and considered on a larger scale. Use of mon-itoring and evaluation in legislated policy should tie back toaddressing the fundamental causes of disease with require-ments for health and prevention of obesity-related disease,thereby generating increased evidence of support.8 Boehmeret al.12 agree that surveillance of legislated policy develop-ment to determine effectiveness is needed, as is explorationof the determinants of obesity and outcomes followingimplementation.

What else makes investment in the creation of bills andresolutions, and constant media messaging about obesity, anethical issue (besides costly resourcing)? Maclean et al.13 notethat the emphasis on calls to action results in stigmatizationof those who are obese. Thus obesity stigma leads to negativestereotyping, discrimination, and victimization within so-ciety.3,13–15 Many obesity-prevention programs fail to con-sider the genetic and environmental risk factors for obesitythat are beyond personal control, or other medical conditionsthat contribute to obesity.15 To avoid consideration of alter-nate causative factors when designing obesity policy, litiga-tion, or interventions amounts to maleficence and results inunintended effects upon obese individuals and subpopula-tions.16 Pomeranz16 reviewed obesity legislation and foundthat in some instances it creates ‘‘weight bias.’’ Obesity results

in bullying, name-calling, rude jokes, and prejudice regardingthe work ethic—in short, harm.13 If the political focus wascentered on holistic concern that created health incentives forthose with obesity rather than punitive disincentives, perhapspolicy outcomes to prevent obesity would meet with greatersuccess.16 Hence, much as minority representation is requiredin certain federal programs to provide civil empowermentin legislation, obesity policy should include representation ofindividuals who suffer from obesity, as they are part of thecommunity as well. Policy should be designed and reviewed toensure that ‘‘blaming’’ obese persons for their condition doesnot occur,13 as education alone can lead to victimization.16

Conclusion

No credible argument exists that denies the need for obesityto be addressed, nor its role in chronic disease. The counter-argument presented here was crafted specifically for consid-eration of ethical design of obesity prevention legislationand litigation. The debate notes that various measures ofautonomy must be considered in obesity policy. The examplesreviewed by the pro/con arguments demonstrate that inlegislated policy, choice is oftentimes (1) eliminated, (2) re-stricted, (3) guided by disincentive, (4) guided by incentive,(5) guided by change in given default policy, but also that itsometimes (6) enables choice, (7) provides information, or (8)takes no action but monitors activity.4 Application of Tan-nahill’s triangulation model shows that in some cases obesitypolicy is guided by scientific evidence and is girded by atheoretical framework to support its application, while inother cases there is evidence of neglectfullness.2 In bothcounterarguments, public-health ethics principles were ap-plied and biomedical principles given for support. Finally, it isfound that ‘‘do no harm’’ is relative to the cultural feasibility ofthe individual lens, and whether the greater harm is beingdone to society at large through increased expense of care ofobese populations or psychological harm rendered throughstigmatization of the obese populations. Guided by theseframeworks, the counterargument technique allows us toview the obesity epidemic as a complex problem, in need of aframework grounded in ethics, to move us effectively intofuture policy design.

Disclosure Statement

No competing financial interests exist.

References

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11. Antler AB. The role of litigation in combating obesity amongpoor urban minority youth: a critical analysis of Pelman v.McDonald’s Corp. Cardozo J Law Gend 2009;15:275–301.

12. Boehmer TK, Brownson RC, Haire-Joshu D, Dreisinger ML.Patterns of childhood obesity prevention legislation in theUnited States. Prev Chronic Dis Public Health Res PractPolicy 2007:4:A56.

13. Maclean L, Edwards N, Garrard M, Sims-Jones N, Clinton K,Ashley L. Obesity, stigma and public health planning.Health Promot Int 2009;24:88–93.

14. Goldberg DS. What kind of people: obesity stigma and in-equities. Am J Med 2011;124:788.

15. Hilbert A, Ried J, Schneider D, Juttner C, Sosna M, et al.Primary prevention of childhood obesity: an interdisciplin-ary analysis. Obes Facts 2008;1:16–25.

16. Pomeranz JL. A historical analysis of public health, the law,and stigmatized social groups: the need for both obesity andweight bias legislation. Obes J 2008;16:S93–S103.

Address correspondence to:Annette G. Greer, PhD, RN

Assistant Professor, Dept. of Bioethicsand Interdisciplinary Studies, Brody School of Medicine

East Carolina UniversityLakeside Annex 6

600 Moye Blvd.Greenville, NC 27834

E-mail: greera@ecu.edu

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