CHAPTER FIVE. OBESITY AS A PUBLIC HEALTH PROBLEM

Surgeon General, A Call to Action to Prevent & Decrease Overweight & Obesity 1-17 (2001)

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This Surgeon General's Call To Action seeks to engage leaders from diverse groups in addressing a public health issue that is among the most burdensome faced by the Nation: the health consequences of overweight and obesity. This burden manifests itself in premature death and disability, in health care costs, in lost productivity, and in social stigmatization. The burden is not trivial. Studies show that the risk of death rises with increasing weight. Even moderate weight excess (10 to 20 pounds for a person of average height) increases the risk of death, particularly among adults aged 30 to 64 years.

Overweight and obesity are caused by many factors. For each individual, body weight is determined by a combination of genetic, metabolic, behavioral, environmental, cultural, and socioeconomic influences. Behavioral and environmental factors are large contributors to overweight and obesity and provide the greatest opportunity for actions and interventions designed for prevention and treatment.

For the vast majori

ty of individuals, overweight and obesity result from excess calorie consumption and/or inadequate physical activity. Unhealthy dietary habits and sedentary behavior together account for approximately 300,000 deaths every year. Thus, a healthy diet and regular physical activity, consistent with the Dietary Guidelines for Americans, (see Appendix to this chapter infra) should be promoted as the cornerstone of any prevention or treatment effort. . . . Much work needs to be done to ensure the nutrient adequacy of our diets while at the same time avoiding excess calories. Dietary adequacy and moderation in energy consumption are both important for maintaining or achieving a healthy weight and for overall health.

Many adult Americans have not been meeting Federal physical activity recommendations to accumulate at least 30 minutes o moderate physical activity most days of the week. In 1997, less than one-third of adults engaged in the recommended amount of physical activity. Although nearly 65 percent of adolescents reported participating in vigorous activity for 20 minutes or more on 3 or more out of 7 days, national data are not available to assess whether children and adolescents meet the Federal recommendations to accumulate at least 60 minutes of moderate physical activity most days of the week. Many experts also believe that physical inactivity is an important part of the energy imbalance responsible for the increasing prevalence of overweight and obesity. Our society has become very sedentary; for example, in 1999, 43 percent of students in grades 9 through 12 viewed television more than 2 hours per day.

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MEASURING OVERWEIGHT AND OBESITY

The first challenge in addressing overweight and obesity lies in adopting a common public health measure of these conditions. An expert panel, convened by the National Institutes of Health (NIH) in 1998, has utilized Body Mass Index (BMI) for defining overweight and obesity. BMI is a practical measure that requires only two things: accurate measures of an individual's weight and height. BMI is a measure of weight in relation to height. BMI is calculated as weight in pounds divided by the square of the height in inches, multiplied by 703 [to adjust for comparisons to weights based on the metric system]. Alternatively, BMI can be calculated as weight in kilograms divided by the square of the height in meters.

Studies have shown that BMI is significantly correlated with total body fat content for the majority of individuals. BMI has some limitations, in that it can overestimate body fat in persons who are very muscular, and it can underestimate body fat in persons who have lost muscle mass, such as many elderly. Many organizations, including over 50 scientific and medical organizations . . . support the use of a BMI of 30 kg/m2 and 29.9 kg/m2 to identify overweight in adults. These definitions are based on evidence that suggests health risks are greater at or above a BMI of 25 kg/m2 compared to those at a BMI below that level. The risk of death, although modest until a BMI of 30 kg/m2 is reached, increases with an increasing Body Mass Index.

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In children and adolescents, overweight has been defined as a sex- and age-specific BMI at or above the 95th percentile, based on revised Centers for Disease Control and Prevention (CDC) growth charts. Neither a separate definition for obesity nor a definition for overweight based on health outcomes or risk factors is defined for children and adolescents.

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HEALTH RISKS

Epidemiological studies show an increase in mortality associated with overweight and obesity. Individuals who are obese (BMI 30) have a 50 to 100 percent increase risk of premature death from all causes compared to individuals with a BMI in the range of 20 to 25. An estimated 300,000 deaths a year may be attributable to obesity.

Morbidity from obesity may be as great as from poverty, smoking, or problem drinking. Overweight and obesity are associated with an increased risk for coronary heart disease; type 2 diabetes; endometrial, colon, postmenopausal breast, and other cancers; and certain musculoskeletal disorders, such as knee osteoarthritis. Both modest and large weight gains are associated with significantly increased risk of disease. For example, a weight gain of 11 to 18 pounds increases a person's risk of developing type 2 diabetes to twice that of individuals who have not gained weight, while those who gain 44 pounds or more have four times the risk of type 2 diabetes.

A gain of approximately 10 to 20 pounds results in an increased risk of coronary heart disease (nonfatal myocardial infarction and death) of 1.25 times in women and 1.6 times in men. Higher levels of body weight gain of 22 pounds in men and 44 pounds in women result in an increased coronary heart disease risk of 1.75 and 2.65, respectively. In women with a BMI of 34 or greater, the risk of developing endometrial cancer is increased by more than six times. Overweight and obesity are also known to exacerbate many chronic conditions such as hypertension and elevated cholesterol. Overweight and obese individuals also may suffer from social stigmatization, discrimination, and poor body image.

Although obesity-associated morbidities occur most frequently in adults, important consequences of excess weight, as well as antecedents of adult disease, occur in overweight children and adolescents. Overweight children and adolescents are more likely to become overweight or obese adults; this concern is greatest among adolescents. Type 2 diabetes, high blood lipids, and hypertension, as well as early maturation and orthopedic problems also occur with increased frequency in overweight youth. A common consequence of childhood overweight is psychosocial -- specifically discrimination.

These data on the morbidity and mortality associated with overweight and obesity demonstrate the importance of the prevention of weight gain, as well as the role of obesity treatment, in maintaining and improving health and quality of life.

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ECONOMIC CONSEQUENCES

Overweight and obesity and their associated health problems have substantial economic consequences for the U.S. health care system. The increasing prevalence of overweight and obesity is associated with both direct and indirect costs. . . .

In 1995, the total (direct and indirect) costs attributable to obesity amounted to an estimated $99 billion. In 2000, the total cost of obesity was estimated to be $117 billion ($61 billion direct and $56 billion indirect). Most of the cost associated with obesity is due to type 2 diabetes, coronary heart disease, and hypertension.

EPIDEMIOLOGY

The United States is experiencing substantial increases in overweight and obesity (as defined by a BMI 25 for adults) that cut across all ages, racial and ethnic groups, and both genders. According to self-reported measures of height and weight, obesity (BMI 30) has been increasing in every state in the nation. Based on clinical height and weight measurements in the 2000 National Health and Nutrition Examination Survey (NHANES), 34 percent of U.S. adults aged 20 to 74 years are overweight (BMI 25 to 29.9), and an additional 27 percent are obese (BMI 30). This contrasts with the late 1970s, when an estimated 32 percent of adults aged 20 to 74 years were overweight, and 15 percent were obese.

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The most recent data (1999) estimate that 13 percent of children aged 6 to 11 years and 14 percent of adolescents aged 12-19 years are overweight. During the past two decades, the percentage of children who are overweight has nearly doubled (from 7 to 13 percent), and the percentage of adolescents who are overweight has almost tripled (from 5 to 14 percent).

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DISPARITIES IN PREVALENCE

. . . Disparities in overweight and obesity prevalence exist in many segments of the population based on race and ethnicity, gender, age, and socioeconomic status. For example, overweight and obesity are particularly common among minority groups and those with a lower family income.

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In general, the prevalence of overweight and obesity is higher in women who are members of racial and ethnic minority populations than in non-Hispanic white women. Among men, Mexican/Americans have a higher prevalence of overweight and obesity than non-Hispanic whites or non-Hispanic blacks. For non-Hispanic men, the prevalence of overweight and obesity among whites is slightly greater than among blacks.

Within racial groups, gender disparities exist, although not always in the same direction. . . .

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In addition to racial and ethnic and gender disparities, the prevalence of overweight and obesity also varies by age. Among both men and women, the prevalence of overweight and obesity increases with advancing age until the sixth decade, after which it starts to decline.

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Disparities in the prevalence of overweight and obesity also exist based on socioeconomic status. For all racial and ethnic groups combined, women of lower socioeconomic status (income 130 percent of poverty threshold) are approximately 50 percent more likely to be obese than those with higher socioeconomic status (income 130 percent of poverty threshold). Men are about equally likely to be obese whether they are in a low or high socioeconomic group.

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HEALTH BENEFITS OF WEIGHT LOSS

The recommendations to treat overweight and obesity are based on two rationales. First, overweight and obesity are associated with an increased risk of disease and death, as previously discussed. Second, randomized controlled trials have shown that weight loss (as modest as 5 to 15 percent of excess total body weight) reduces the risk factors for at least some diseases, particularly cardiovascular disease, in the

short term. Weight loss results in lower blood pressure, lower blood sugar, and improved lipid levels. While few published studies have examined the link between weight loss and reduced disease or death in the long-term, current data, as well as scientific plausibility suggest this link.

Studies have shown that reducing risk factors for heart disease, such as blood pressure and blood cholesterol levels, lowers death rates from heart disease and stroke. Therefore, it is highly probable that weight loss that reduces these risk factors will reduce the number of deaths from heart disease and stroke. Trials examining the direct effects of weight loss on disease and death are currently under way. . . .

Families and communities lie at the foundation of the solution to the problems of overweight and obesity. Family members can share their own knowledge and habits regarding a health diet and physical activity with their children, friends and other community members. Emphasis should be placed on family and community opportunities for communication, education, and peer support surrounding the maintenance of healthy dietary choices and physical activity patterns.

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Schools are identified as a key setting for public health strategies to prevent and decrease the prevalence of overweight and obesity. Most children spend a large portion of time in school. Schools provide many opportunities to engage children in health eating and physical activity and to reinforce health diet and physical activity messages. Public health approaches in schools should extend beyond health and physical education to include school policy, the school physical and social environment, and links between schools and families and communities. Schools and communities that are interested in reducing overweight among the young people they serve can consider various options. Decisions about which options to select should be made at the local level.

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The health care system provides a powerful setting for intervention aimed at reducing the prevalence of overweight and obesity and their consequences. A majority of Americans interact with the health care system at least once during any given year. Recommendations by pediatric and adult health care providers can be influential in patient dietary choices and physical activity patterns. In collaboration with schools and worksites, health care providers and institutions can reinforce the adoption and maintenance of healthy lifestyle behaviors. Health care providers also can serve as effective public policy advocates and further catalyze intervention efforts in the family and community and in the media and communications settings.

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The media can provide essential functions in overweight and obesity prevention efforts. From a public education and social marketing standpoint, the media can disseminate health messages and display health behaviors aimed at changing dietary habits and exercise patterns. In

addition, the media can provide a powerful forum for community members who are addressing the social and environmental influences on dietary and physical activity patterns.

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More than 100 million Americans spend the majority of their day at a worksite. While at work, employees are often aggregated within systems for communication, education and peer support. Thus, worksites provide many opportunities to reinforce the adoption and maintenance of healthy lifestyle behaviors. Public health approaches in worksites should extend beyond health education and awareness to include worksite policies, the physical and social environments of worksites, and their links with the family and community setting.

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[The report then discusses the separate but related roles of the individual, private organizations, and government in achieving progress against overweight and obesity.]

. . . [T]he Surgeon General identifies the following activities as national priorities for immediate action. Individuals, families, communities, schools, worksites, health care, media, industry, organizations, and government must determine their role and take action to prevent and decrease overweight and obesity.

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The nation must take an informed, sensitive approach to communicate with and educate the American people about health issues related to overweight and obesity. Everyone must work together to:

-- Change the perception of overweight and obesity at all ages. The primary concern should be one of health and not appearance.

-- Educate all expectant parents about the many benefits of breastfeeding. Breastfed infants may be less likely to become overweight as they grow older. Mothers who breastfeed may return to pre-pregnancy weight more quickly.

-- Educate health care providers and health profession students in the prevention and treatment of overweight and obesity across the lifespan.

-- Provide culturally appropriate education in schools and communities about healthy eating habits and regular physical activity, based on the Dietary Guidelines for Americans [see appendix to this chapter infra], for people of all ages. Emphasize the consumer's role in making wise food and physical activity choices.

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The nation must take action to assist Americans in balancing healthful eating with regular physical activity. Individuals and groups across all settings must work in concert to:

-- Ensure daily, quality physical education in all school grades. Such education can develop the knowledge, attitudes, skills, behaviors, and confidence needed to be physically active for life.

-- Reduce time spent watching television and in other similar sedentary behaviors.

-- Build physical activity into regular routines and playtime for children and their families. Ensure that adults get at least 30 minutes of moderate physical activity on most days of the week. Children should aim for at least 60 minutes.

-- Create more opportunities for physical activity at worksites. Encourage all employers to make facilities and opportunities available for physical activity for all employees.

-- Make community facilities available and accessible for physical activity for all people, including the elderly.

-- Promote healthier food choices, including at least five servings of fruits and vegetables each day, and reasonable portion sizes at home, in schools, at worksites, and in communities.

-- Ensure that schools provide healthful foods and beverages on school campuses and at school events by:

(1) Enforcing existing U.S. Department of Agriculture regulations that prohibit serving foods of minimal nutritional value during mealtimes in school food service areas, including in vending machines.

(2) Adopting policies specifying that all foods and beverages available at school contribute toward eating patterns that are consistent with the Dietary Guidelines for Americans.

(3) Providing more food options that are low in fat, calories, and added sugars such as fruits, vegetables, whole grains, and low-fat or nonfat dairy foods.

(4) Reducing access to foods high in fact, calories and added sugars and to excessive portion sizes.

(5) Create mechanisms for appropriate reimbursement of the prevention and treatment of overweight and obesity.

The nation must invest in research that improves our understanding of the causes, prevention, and treatment of overweight and obesity. A concerted effort should be made to:

-- Increase research on behavioral and environmental causes of overweight and obesity.

-- Increase research and evaluation on prevention and treatment interventions for overweight and obesity, and develop and disseminate best practice guidelines.

-- Increase research on disparities in the prevalence of overweight and obesity among racial and ethnic, gender, socioeconomic, and age groups, and use this research to identify effective and culturally appropriate interventions.

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United Nations Food & Agriculture Organization/World Health Organization, Joint Report on Diet, Nutrition, and the

Prevention of Chronic Diseases 61-71 (2003)

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Almost all countries (high-income and low-income alike) are experiencing an obesity epidemic, although with great variation between and within countries. In low-income countries, obesity is more common in middle-aged women, people of higher socioeconomic status and those living in urban communities. In more affluent countries, obesity is not only common in the middle-aged, but is becoming increasingly prevalent among younger adults and children. Furthermore, it tends to be associated with lower socioeconomic status, especially in women, and the urban-rural differences are diminished or even reversed.

It has been estimated that the direct costs of obesity accounted for 6.8 percent of total health care costs . . . in the United States in 1995. Although direct costs in other industrialized countries are slightly lower, they still consume a sizeable proportion of national health budgets. Indirect costs, which are far greater than direct costs, include work days lost, physician visits, disability pensions and premature mortality. Intangible costs such as impaired quality of life are also enormous. Because the risks of diabetes, cardiovascular disease and hypertension rise continuously with increasing weight, there is much overlap between the prevention of obesity and the prevention of a variety of chronic diseases, especially type 2 diabetes. . . .

The increasing industrialization, urbanization, and mechanization occurring in most countries around the world is associated with changes in diet and behaviour, in particular, diets are becoming richer in high-fat, high energy foods and lifestyles more sedentary. In many developing countries undergoing economic transition, rising levels of obesity often co-exist in the same population (or even the same household) with chronic undernutrition. Increases in obesity over the past 30 years have been paralleled by a dramatic rise in the prevalence of diabetes.

Mortality rates increase with increasing degrees of overweight, as measured by BMI. As BMI increases, so too does the proportion of people with one or more comorbid conditions. . . . Eating behaviours that have been linked to overweight and obesity include snacking/eating frequency, binge-eating patterns, eating out, and (protectively) exclusive breast-feeding. Nutrient factors under investigation include fat, carbohydrate type (including refined carbohydrates such as sugar), the glycaemic index of foods, and fibre. Environmental issues are clearly important, especially as many environments become increasingly "obesogenic" (obesity-promoting).

Physical activity is an important determinant of body weight. In addition, physical activity and physical fitness (which relates to the ability to perform physical activity) are important modifiers of mortality and morbidity related to overweight and obesity. There is firm evidence that moderate to high fitness levels provide a substantially

reduced risk of cardiovascular disease and all-cause mortality and that these benefits apply to all BMI levels. Furthermore, high fitness protects against mortality at all BMI levels in men with diabetes. Low cardiovascular fitness is a serious and common comorbidity of obesity, and a sizeable proportion of deaths in overweight and obese populations are probably a result of low levels of cardio-respiratory fitness rather than obesity per se. Fitness is, in turn, influenced strongly by physical activity in addition to genetic factors. These relationships emphasize the role of physical activity in the prevention of overweight and obesity, independently of the effects of physical activity on body weight.

. . . There is convincing evidence that regular physical activity is protective against unhealthy weight gain whereas sedentary lifestyles, particularly sedentary occupations and inactive recreation such as watching television, promote it. Most epidemiological studies show smaller risk of weight gain, overweight and obesity among persons who currently engage regularly in moderate to large amounts of physical activity. Studies measuring physical activity at baseline and randomized trials of exercise programmes show more mixed results, probably because of the low adherence to long-term changes. Therefore, it is ongoing physical activity itself rather than previous physical activity or enrollment in an exercise programme that is protective against unhealthy weight gain. The recommendation for individuals to accumulate at least 30 minutes of moderate-intensity physical activity on most days is largely aimed at reducing cardiovascular diseases and overall mortality. The amount needed to prevent unhealthy weight gain is uncertain but is probably significantly greater than this. Preventing weight gain after substantial weight loss probably requires about 60-90 minutes per day. . . . Studies aimed at reducing sedentary behaviours have focused primarily on reducing television viewing in children. Reducing viewing times by about 30 minutes a day in children in the United States appears feasible and is associated with reductions in BMI.

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. . . [T]wo recent reviews of randomized trials have concluded that the majority of studies show that a high intake of NSP (dietary fibre) promotes weight loss. Pereira & Ludwig found that 12 out of 19 trials showed beneficial objective effects (including weight loss). In their review of 11 studies . . . Howarth Saltzman & Roberts reported a mean weight loss of 1.9 kg over 3.8 months. There were no differences between fibre type or between fibre consumed in food or as supplements.

There is convincing evidence that a high intake of energy-dense foods promotes weight gain. In high-income countries (and increasingly in low income countries) these energy-dense foods are not only highly processed (low NSP) but also micronutrient-poor, further diminishing their nutritional value. Energy-dense foods tend to be high in fat (e.g. butter, oils, fried foods), sugars or starch, while energy-dilute foods have a high water content (e.g. fruits and vegetables). . . . While energy from fat is no more fattening than the same amount of energy from carbohydrate or protein, diets that are high in fat tend to be energy-dense. An important exception to this is diets based predominantly on energy-dilute foods (e.g. vegetables, legumes, fruits) but which have a reasonably high percentage of energy as fat from added oils.

The effectiveness over the long term of most dietary strategies for weight loss, including low-fat diets, remains uncertain unless accompanied by changes in behaviour affecting physical activity and food habits. These latter changes at a public health level require an environment supportive of healthy food choices and an active life. . . . A variety of popular weight-loss diets that restrict food choices may result in reduced energy intake and short term weight loss in individuals but most do not have trial evidence of long-term effectiveness and nutritional adequacy and therefore cannot be recommended for populations.

Despite the obvious importance of the roles that parents and home environments play on children's eating and physical activity behaviours, there is very little hard evidence available to support this view. It appears that access and exposure to a range of fruits and vegetables in the home is important for the development of preferences for these foods and that parental knowledge, attitudes, and behaviours related to healthy diet and physical activity are important in creating role models. More data are available on the impact of the school environment on nutrition knowledge, on eating patterns and physical activity at school, and on sedentary behaviours at home. Some studies, but not all, have shown an effect of school-based interventions on obesity prevention. . . .

Part of the consistent, strong relationships between television viewing and obesity in children may relate to the food advertising to which they are exposed. Fast food restaurants and foods and beverages that are usually classified under the "eat least" category in dietary guidelines are among the most heavily marketed products, especially on television. Young children are often the target group for the advertising of these products because they have a significant influence on the foods bought by parents. The huge expenditure on marketing fast-foods and other "eat least" choices was considered to be a key factor in the increased consumption of food prepared outside the home in general and of energy-dense, micronutrient-poor foods in particular. Young children are unable to distinguish programme content from the persuasive intent of advertisements. The evidence that the heavy marketing of these foods and beverages to young children causes obesity is not unequivocal. [T]here is sufficient indirect evidence to warrant this practice being placed in the "probable" category and thus becoming a potential target for interventions.

Diets that are proportionally low in fat will be proportionally higher in carbohydrate (including a variable amount of sugars) and are associated with protection against unhealthy weight gain, although a high intake of free sugars in beverages probably promotes weight gain. The physiological effects of energy intake on satiation and satiety appear to be quite different for energy in solid foods as opposed to energy in fluids. Possibly because of reduced gastric distension and faster transit times, the energy contained in fluids is less well "detected" by the body and subsequent food intake is poorly adjusted to account for the energy taken in through beverages. . . . The high and increasing consumption of sugars-sweetened drinks by children in many countries is of serious concern. It has been estimated that each additional can or glass of sugars-sweetened drink that they consume every day increases the risk of becoming obese by 60 percent. Most of

the evidence relates to soda drinks but many fruit drinks and cordials are equally energy-dense and may promote weight gain if drunk in large quantities. Overall, the evidence implicating a high intake of sugars-sweetened drinks in promoting weight gain was considered moderately strong.

Classically the pattern of the progression of obesity through a population starts with middle-aged women in high-income groups but as the epidemic progresses, obesity becomes more common in people (especially women) in lower socioeconomic status groups. The relationship may even be bi-directional, setting up a vicious cycle (i.e. lower socioeconomic status promotes obesity, and obese people are more likely to end up in groups with low socioeconomic status). The mechanisms by which socioeconomic status influences food and activity patterns are probably multiple and need elucidation. However, people living in circumstances of low socioeconomic status may be more at the mercy of the obesogenic environment because their eating and activity behaviours are more likely to be the "default choices" on offer. The evidence for an effect of low socioeconomic status on predisposing people to obesity is consistent (in higher income countries) across a number of cross-sectional and longitudinal studies, and was thus rated as a "probable" cause of increased risk of obesity.

Breastfeeding as a protective factor against weight gain has been examined in at least 20 studies involving nearly 40,000 subjects. . . . There are probably multiple effects of confounding in these studies; however, the reduction in the risk of developing obesity observed in the two largest studies was substantial. Promoting breastfeeding has many benefits, the prevention of childhood obesity probably being one of them.

. . . Large portion sizes are a possible causative factor for unhealthy weight gain. The marketing of "supersize" portions, particularly in fastfood outlets, is now common practice in many countries. There is some evidence that people poorly estimate portion sizes and that subsequent energy compensation for a large meal is incomplete and therefore is likely to lead to overconsumption.

In many countries, there has been a steady increase in the proportion of food eaten that is prepared outside the home. In the United States, the energy, total fat, saturated fat, cholesterol and sodium content of foods prepared outside the home is significantly higher than that of home prepared food. People in the United States who tend to eat in restaurants have a higher BMI than those who tend to eat at home.

Certain psychological parameters of eating patterns may influence the risk of obesity. The "flexible restraint" pattern is associated with lower risk of weight gain, whereas the "rigid restraint/periodic disinhibition" pattern is associated with a higher risk.

. . . Studies have not shown consistent associations between alcohol intake and obesity despite the high energy density of the nutrient. . . .

. . . While a high eating frequency has been shown in some studies to have a negative relationship with energy intake and weight gain, the types of foods readily available as snack foods are often high in fat and a high consumption of foods of this type might predispose people to weight gain. The evidence regarding the impact of early nutrition on subsequent obesity is also mixed, with some studies showing relation-ships for high and low birth weights.

The prevention of obesity in infants and young children should be considered of high priority. For infants and young children, the main preventive strategies are:

-- the promotion of exclusive breastfeeding;

-- avoiding the use of added sugars and starches when feeding formula;

-- instructing mothers to accept their child's ability to regulate energy intake rather than feeding until the plate is empty;

-- assuring the appropriate micronutrient intake needed to promote optimal linear growth.

For children and adolescents, prevention of obesity implies the need to:

-- promote an active lifestyle;

-- limit television viewing;

-- promote the intake of fruits and vegetables;

-- restrict the intake of energy-dense, micronutrient-poor foods (e.g. packaged snacks);

-- restrict the intake of sugars-sweetened soft drinks.

Additional measures include modifying the environment to enhance physical activity in schools and communities, creating more opportu-nities for family interaction (e.g. eating family meals), limiting the exposure of young children to heavy marketing practices of energy-dense, micronutrient-poor foods, and providing the necessary information and skills to make healthy food choices.

In developing countries, special attention should be given to avoidance of overfeeding stunted population groups. Nutrition programmes designed to control or prevent undernutrition need to assess stature in combination with weight to prevent providing excess energy to children of low weight-for-age but normal weight-for-height. In countries in economic transition, as populations become more sedentary and able to access energy-dense foods, there is a need to maintain the healthy components of traditional diets (e.g. high intake of vegetables, fruits and NSP). Education provided to mothers and low socioeconomic status communities that are food insecure should stress that overweight and obesity do not represent good health.

Low-income groups globally and populations in countries in economic transition often replace traditional micronutrient-rich foods by heavily marketed, sugars-sweetened beverages (i.e. soft drinks) and energy-dense, fatty, salty, and sugary foods. These trends, coupled with reduced physical activity, are associated with the rising prevalence of obesity. Strategies are needed to improve the quality of diets by increasing consumption of fruits and vegetables, in addition to increasing physical activity, in order to stem the epidemic of obesity and associated diseases.

[The report then discusses the use of BWI as a crude but useful means to measure the prevalence of obesity but notes the need to adjust the standard for different cultures and body-types.]

A total of one hour per day of moderate-intensity activity, such as walking on most days of the week, is probably needed to maintain a healthy body weight, particularly for people with sedentary occupations.

The fat and water content of foods are the main determinants of the energy density of the diet. A lower consumption of energy-dense (i.e. high-fat, high-sugars, and high-starch) foods and energy-dense (i.e. high free sugars) drinks contributes to a reduction in total energy intake. Conversely, a higher intake of energy-dilute foods (i.e. vegetables and fruits) and foods high in NSP contributes to a reduction in total energy intake and an improvement in micronutrient intake. It should be noted, however, that very active groups who have diets high in vegetables, legumes, fruits and wholegrain cereals, may sustain a total fat intake of up to 35 percent without the risk of unhealthy weight gain.

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Kelly Brownell & Katherine Battle Horgen, Food Fight 3-13 (2004)

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It came quickly, with little fanfare, and was out of control before the nation notices. Obesity, diabetes, and other diseases caused by poor diet and sedentary lifestyle now affect the health, happiness, and vitality of millions of men, women, and, most tragically, children and pose a major threat to the health care resources of the United States. Most alarming has been the national inaction in the face of crisis, the near-total surrender to a powerful food industry, and the lack of innovation in preventing further havoc.

The Centers for Disease Control and Prevention (CDC) labels the obesity problem an "epidemic." Within the United States, 64.5 percent of Americans are either overweight or obese, with the number growing. For many reasons, some obvious and some not, the increase in overweight children is twice that seen in adults.

Other nations are in hot pursuit. Country after country follows the American lead and grows heavier. Over consumption has replaced malnutrition as the world's top food problem. From Banff to Buenos Aires, from Siberia to the Sahara, the world need only look to America to see its future. There are now clinics for obese children in Beijing.

Similar to a new virus without natural enemies, our lifestyle of abundant food and inactivity faces little opposition. Quite the contrary, powerful forces push it forward, spreading the problem to all segments of the population. These forces are woven so tightly into our social systems (economics, health care system, even education) that change seems almost beyond imagination. Despite talk of an obesity crisis, government reports, and Presidents pushing exercise, obesity is increasing in all races, ages, income groups, and areas of the world.

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The picture with children is sad. Projecting ahead to their adult years, today's children are targeted in a relentless way by the food companies. Institutions such as schools that would like to protect children instead must sell soft drinks and snack foods to function.

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It is easy to blame parents, but they face off every day with an environment that grabs their children and won't let go. Children and the parents who raise them do not get what they deserve -- conditions that support healthy eating and physical activity. The environment wins in most cases, and we have an epidemic to show for it.

By any definition, we face an emergency.

The reasons for this growing problem are simple and complex at the same time. People eat too much and exercise too little, but this easy

truth masks a fascinating dance of genetics with modern lifestyle. Economics, breakthroughs in technology, how our nation thinks about food, and, of course, the powerful and sophisticated food industry, are all actors in this tragic play. Our environment is textured with risk. It intersects with genes in a way that makes an obese population a predictable consequence of modern life.

Some individuals have the biological fortune or the skills to resist this risk, leading to arguments that weight control is a matter of personal responsibility. Choices people make are important, but the nation has played the willpower and restraint cards for years and finds itself trumped again and again by an environment that overwhelms the resources of most people.

The cost of inaction will multiply human suffering, place our nation at a strategic disadvantage, and have a massive impact on health care costs.

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Picture yourself a child, rather a zygote. Your father's sperm penetrates your mother's egg, unleashing a cascade of biological events. What you will eat later in life, your upper and lower limits for body weight, and how your physiology responds to being sedentary have been partially fixed.

The lives of your ancestors, dating back many thousands of years, reside in your genes. Unpredictable food supplies and looming starvation were their everyday realities. Those who adapted ate voraciously when food appeared, stored energy (as body fat) with extreme efficiency, survived later scarcity, and contributed to the gene pool from which you draw your DNA.

Married to this food biology are genes related to physical activity. Extreme exertion was once required to hunt and gather food. The body functioned optimally with bouts of heavy activity punctuated by periods of rest needed to conserve energy. Modern culture has removed strenuous exercise.

You are an exquisitely efficient calorie conservation machine. Your genes match nicely with a scarce food supply, but not with modern living conditions. As a child, you are about to be broadsided by a "toxic" environment. Your body is unprepared for the plummeting need to be physically active and cannot anticipate the impending confrontation with Big -- Big Gulp, Bog Grab, Big Mac, Biggie Fries, Big everything.

If you could speak with your ancient ancestors, they would explain that people eat a lot when food is abundant, particularly foods high in fat, sugar, and calories, a fact proven by scientists thousands of years later. These foods provide quick energy but more important, are optimal for storing energy.

As you breathe for the first time outside the womb, your genes are mismatched with modern conditions. The environment is distorted beyond your body's ability to cope. It will pound you with inducements to eat, make exertion unnecessary, and do little to defend you against diseases that most threaten you.

Good fortune may bring you parents who are committed to healthy eating. They keep junk food out of the home, have healthy foods available, and teach you good nutrition. But then you go to play groups, birthday parties, and school. You see billboards, watch TV, go to movies, and travel the supermarket aisles where your favorite Disney and Nickelodeon characters are linked with sugared cereals, snack foods, and ice cream. Your parents now face Goliath.

. . . .

Biology comes undone when confronted by modern eating and exercise conditions, what we call the toxic environment. Toxic is a powerful word, but powerful language is needed to describe the situation. . . .

. . . .

The second half of the energy equation, physical activity, has also been affected in disastrous ways. Few children walk or bike to school; there is little physical education; computers, video games, and televisions keep children inside and inactive; and parents are reluctant to let children roam free to play.

The American landscape has been altered in profound ways. Cheeseburgers and French fries, drive-in windows and supersizes, soft drinks and candy, potato chips and cheese curls, once unusual, are as much our background as trees, grass, and clouds. We now take notice when food isn't there. Gas stations without a mini-market look old-fashioned and unappealing.

. . . .

The world of fast food is only one of many changing influences but may be the most dramatic. In his book Fast Food Nation, Eric Schlosser notes that American spending on fast food went from $6 billion to $110 billion annually in the last 30 years. . . .

. . . .

Fast food is high in fat, calories and sugar; low in fiber; and nearly devoid of fruits and vegetables beyond fried potatoes.

. . . .

Food, not just fast food, is everywhere. Think of the modern drugstore. The items you need, like pain relievers, bandages, cough remedies, and vitamins, not to mention the pharmacy, are in the rear of the store, requiring you to pass through aisles of items you did not intend to buy. Many people gravitate naturally to the center aisles, home to a large collection of candies and foods. When you leave the pharmacy and walk back along the far aisle, notice what you encounter.

Children are valuable consumers, affecting billions of dollars in sales each year. Food marketing directed at children, almost exclusively for unhealthy foods, is as sophisticated as marketing gets. There are books, advertising journals, and conferences describing how to best market to children. It is no surprise that we have a nation of children

consuming record amounts of sugar, soft drinks, fast foods, and snack foods.

. . . .

Accessibility of bad food is coupled with a key economic reality: unhealthy food is cheap. It is also convenient, fast, packaged attractively, and tasty. Healthy foods are more difficult to get, less convenient, and more expensive. If you came from Mars and knew nothing but this about a country, an epidemic of obesity is exactly what you'd predict.

This confluence of declining physical activity and in altered eating environment, both in toxic proportions, has created a human crisis.

. . . .

Food is big, but so are the companies making and selling it. Massive agribusiness companies control a surprising amount of the food chain, raising grave concerns with issues such as dwindling genetic diversity in plants and farm animals, resistant strains of bacteria resulting from the overuse of antibiotics, and undue influence on the nation's nutrition and agriculture policy.

. . . .

A consequence of this consolidation is that enormous power and influence rest in the hands of a few companies. Their presence in Washington, D.C., is visible and felt in many ways, some more obvious than others. What crops get subsidized, which commodities get shipped to schools through the National School Lunch Program, what foods get emphasized in the foot guide pyramid, and whether soft drinks are permitted in schools are a few places where political influence can affect the national nutrition environment. There are many, many cases where business interests conflict with public health. People deserve to know how and when this occurs and the impact it has on them and their children.

. . . .

The word big applied to the food industry conjures up images of Big Oil, Big Energy, Big Tobacco, and so on. The public image of such industries is that a small number of giant companies led by ruthless executives control an entire industry and manipulate the political system, finances, and public opinion in self-serving ways that damage the public's interests. You may draw your own conclusions about whether the food industry deserves this label.

. . . .

Changing the environment is the obvious place to begin. The deteriorating environment is the clear cause of the obesity epidemic and must be the basis for its remedy. Attacking a problem by considering its causes is logical and leads squarely to a public health imperative -- prevention.

Prevention is appealing for several reasons:

1. With obesity the nation's most common major chronic health problem, vast numbers of people could benefit.

2. Children are the logical focus when a disease begins early in life. Food preferences, eating habits, and, possibly, brand loyalties take shape in childhood, so the best opportunity for creating healthy habits may exist in the early years.

3. Obesity is very difficult to treat, and most people who lose weight do not keep it off. The most optimistic estimates are that 25 percent of people lose weight and maintain the loss, often requiring many tries. This lack of success combines with the very high cost of treatment to make most approaches cost-ineffective. We will never treat this problem away.

4. The nation has a long history of supporting prevention to protect its children. Child safety seats, childproof medicine bottles, warnings on toys that are choking hazards, immunization requirements, and the prohibition of tobacco sales to children are examples. Such programs show good return on investment. Improving diet and physical activity and preventing obesity rival any of these programs in importance to public health.

* * *

Pelman v. McDonald’s237 F. Supp. 2d 512 (S.D.N.Y. 2003)(“Pelman I”)

Sweet, Judge.

* * *

This action presents unique and challenging issues. The plaintiffs have alleged that the practices of McDonalds in making and selling their products are deceptive and that this deception has caused the minors who have consumed McDonalds' products to injure their health by becoming obese. Questions of personal responsibility, common knowledge and public health are presented, and the role of society and the courts in addressing such issues.

The issue of determining the breadth of personal responsibility underlies much of the law: where should the line be drawn between an individual's own responsibility to take care of herself, and society's responsibility to ensure that others shield her? Laws are created in those situations where individuals are somehow unable to protect themselves and where society needs to provide a buffer between the individual and some other entity -- whether herself, another individual or a behemoth corporation that spans the globe. Thus Congress provided that essentially all packaged foods sold at retail shall be appropriately labeled and their contents described. [The Nutrition Labeling and Education Act of 1990]. Also, as a matter of federal regulation, all alcoholic beverages must warn pregnant women against their use. Congress has gone further and made the possession and consumption of certain products criminal because of their presumed effect on the health of consumers. Other products have created health hazards and resulted in extensive and expensive class action litigation. . . . Public health is one, if not the, critical issue in society.

This opinion is guided by the principle that legal consequences should not attach to the consumption of hamburgers and other fast food fare unless consumers are unaware of the dangers of eating such food. . . . If consumers know (or reasonably should know) the potential ill health effects of eating at McDonalds, they cannot blame McDonalds if they, nonetheless, choose to satiate their appetite with a surfeit of supersized McDonalds products. On the other hand, consumers cannot be expected to protect against a danger that was solely within McDonalds' knowledge. Thus, one necessary element of any potentially viable claim must be that McDonalds' products involve a danger that is not within the common knowledge of consumers. As discussed later, plaintiffs have failed to allege with any specificity that such a danger exists.

McDonalds has also, rightfully, pointed out that this case, the first of its kind to progress far enough along to reach the stage of a dispositive motion, could spawn thousands of similar "McLawsuits" against restaurants. Even if limited to that ilk of fare dubbed "fast food," the potential for lawsuits is great: Americans now spend more than $110 billion on fast food each year, and on any given day in the United States, almost one in four adults visits a fast food restaurant. [citation to Fast Food Nation] The potential for lawsuits is even

greater given the numbers of persons who eat food prepared at other restaurants in addition to those serving fast food. . . .

The interplay of these issues and forces has created public interest in this action, ranging from reports and letters to the Court to television satire. Obesity, personal liberty, and public accountability affect virtually every American consumer.

In terms of the pending motion by McDonalds to dismiss the complaint, these principles require the complaint to be dismissed for lack of specificity, with leave granted to replead within the limits set forth below.

Facts

Ashley Pelman, a minor, and her mother and natural guardian Roberta Pelman are residents of the Bronx, New York. . . . The [class of] infant plaintiffs are consumers who have purchased and consumed the defendants' products and, as a result thereof, have become overweight and have developed diabetes, coronary heart disease, high blood pressure, elevated cholesterol intake, and/or other detrimental and adverse health effects as a result of the defendants' conduct and business practices. Defendant McDonald's Corp. is a Delaware corporation with its principal place of business at One McDonald's Plaza, Oak Brook, Illinois. It does substantial business with outlets in the State of New York, as well as throughout the fifty states and the world. Defendant McDonalds of New York is a New York State corporation . . . . It does substantial business with outlets and/or franchises in the State of New York.

McDonalds is the owner, manager, franchisee, and operator of defendants the Bruckner Boulevard and Jerome Avenue outlets. Ashley and Roberta Pelman purchased and consumed food products at the Bruckner Boulevard outlet. . . .

Obesity in Young Persons and its Effects

Today there are nearly twice as many overweight children and almost three times as many overweight adolescents as there were in 1980. In 1999, an estimated 61 percent of U.S. adults were overweight or obese and 13 percent of children aged 6 to 11 years and 14 percent of adolescents aged 12 to 19 years were overweight. In 1980, those figures for children were 7 percent for children aged 6 to 11 years and 5 percent for adolescents aged 12 to 19 years. Obese individuals have a 50 to 100 percent increased risk of premature death from all causes. Approximately 300,000 deaths a year in the United States are currently associated with overweight and obesity. . . . Obesity and overweight classification are associated with increased risk for coronary heart disease; type 2 diabetes; endometrial, colon, postmenopausal breast, and other cancers; and certain musculoskeletal disorders, such as knee osteoarthritis.

Studies have shown that both modest and large weight gains are associated with significantly increased risk of diseases. . . .

Claims

The plaintiffs allege five causes of action as members of a putative class action of minors residing in New York State who have purchased and consumed McDonalds products. Counts I and II are based on deceptive acts and practices in violation of the Consumer Protection Act, New York General Business Law §§ 349 and 350 . . . . Count I alleges that McDonalds failed to adequately disclose the ingredients and/or health effects of ingesting certain of their food products with high levels of cholesterol, fat, salt, and sugar; described their food as nutritious; and engaged in marketing to entice consumers to purchase "value meals" without disclosing the detrimental health effects thereof. Count II focuses on marketing techniques geared toward inducing children to purchase and ingest McDonalds' food products. Count III sounds in negligence, alleging that McDonalds acted at least negligently in selling food products that are high in cholesterol, fat, salt and sugar when studies show that such foods cause obesity and detrimental health effects. Count IV alleges that McDonalds failed to warn the consumers of McDonalds' products of the ingredients, quantity, qualities and levels of cholesterol, fat, salt and sugar content and other ingredients in those products, and that a diet high in fat, salt, sugar and cholesterol could lead to obesity and health problems. Finally, Count V also sounds in negligence, alleging that McDonalds acted negligently in marketing food products that were physically and psychologically addictive.

Discussion

[The court then considers whether it should remand the case to state court.]

This lawsuit is not the typical products liability case because, as referred to above, the issue is over-consumption of products created, manufactured, and advertised at a national level. A McDonalds' Big Mac is the same at every outlet in the Bronx, New York; the same at every outlet in the State of New York; and the same at every outlet throughout the United States. Clearly what is at issue in this lawsuit is the national menu and national policy of McDonalds Corp., and the plaintiffs' real beef is with McDonalds Corp.

As a result, the motion to remand is denied.

[The court then discusses the defendants’ motion to dismiss the

case.]

Counts I and II allege that McDonalds violated the New York Consumer Protection Act, §§ 349 and 350 by (1) deceptively advertising their food as not unhealthful and failing to provide consumers with nutritional information (Count I) and (2) inducing minors to eat at McDonalds through deceptive marketing ploys (Count II).

Section 349 makes unlawful "[d]eceptive acts or practices in the conduct of any business, trade, or commerce or in the furnishing of any service in this state." Section 350 prohibits "[f]alse advertising in the conduct of any business." To state a claim for deceptive practices under either section, a plaintiff must show: (1) that the act, practice, or advertisement was consumer-oriented; (2) that the act, practice, or advertisement was misleading in a material respect, and (3) that the

plaintiff was injured as a result of the deceptive practice, act, or advertisement.

[The court then rejects the defendants argument that the federal nutritional labeling laws which exempts restaurants from the laws applicable to retail products preempts any state law which relating to the labeling of food.]

In Count I, plaintiffs allege that McDonalds violated the act both by commission (e.g., stating that its products were nutritious, encouraging consumers to "supersize" their meals without disclosing the negative health effects) and by omission (e.g., failing to provide nutritional information for products). Because the Complaint does not identify a single instance of deceptive acts, Count I shall be dismissed to the extent it alleges deceptive practices . . . .

[I]t is worth noting that, even in their opposition papers, the plaintiffs only cite to two advertising campaigns ("McChicken Everyday!" and "Big N' Tasty Everyday") and to a statement on the McDonalds' website that "McDonalds can be part of any balanced diet and lifestyle." These are specific examples of practices, act, or advertisements and would survive a motion to dismiss based on lack of specificity. Whether they would survive a motion to dismiss on the substantive issue of whether such practices, act, and advertisements are deceptive is less clear. The two campaigns encouraging daily forays to McDonalds and the statement regarding making McDonalds a part of a balanced diet, if read together, may be seen as contradictory -- a balanced diet likely does not permit eating at McDonalds everyday. However, the advertisements encouraging persons to eat at McDonalds "everyday!" do not include any indication that doing so is part of a well-balanced diet, and the plaintiffs fail to cite any advertisement where McDonalds asserts that its products may be eaten for every meal of every day without any ill consequences. Merely encouraging consumers to eat its products "everyday" is mere puffery, at most, in the absence of a claim that to do so will result in a specific effect on health. As a result, the claims likely would not be actionable if alleged.

On December 11, 2002, the Court accepted from plaintiffs a number of documents concerning actions taken against McDonalds' advertising practices in the late 1980's by the state attorneys general from several states, including New York State. While any claim based on the advertisements at issue likely would be time barred, a review of those advertisements and the state attorney generals' analysis of them may assist plaintiffs in shaping a claim under the Consumer Protection Act. For instance, by letter dated April 24, 1987 (the "Abrams Letter"), Robert Abrams, the then-Attorney General of the State of New York, addressed several specific allegedly deceptive claims in McDonalds advertisements: 1. The advertisement discussing salt (sodium) content in foods says, "Our sodium is down across the menu." (emphasis added) This is not true. That same advertisement lists four products (regular fries, regular cheeseburger, 6-piece McNuggets, and vanilla milkshake), none of which have had their sodium content lowered in the past year. 2. The advertisement touting the "real" milk in McDonald's shakes says that they contain "Wholesome milk, natural sweeteners, a fluid ounce of flavoring, and stabilizers for consistency. And that's all." In fact, that's not really all. McDonald's own ingredient booklet shows that a typical shake, such as vanilla or strawberry, actually contains

artificial flavor and sodium benzoate and sodium hexametaphosphate, two chemical preservatives. This advertisements tells only part of the story. . . .

The second subset of Claim I focuses on McDonalds' failure to label its foods with their nutritional content. Unlike above, the plaintiffs clearly have outlined the allegedly deceptive practice: the fact that McDonalds failed to post nutritional labeling on the products and at points of purchase. However, because this is a purportedly deceptive act based on an omission, it is not sufficient for the plaintiffs to point to the omission alone. They must also show why the omission was deceptive -- a duty they have shunned.

. . . .

The plaintiffs fail to allege that the information with regard to the nutritional content of McDonalds' products was solely within McDonalds' possession or that a consumer could not reasonably obtain such information. It cannot be assumed that the nutritional content of McDonalds' products and their usage was solely within the possession of McDonalds. (Although the plaintiffs do not allege it as part of Count I or II, the allegations contained in Count V -- that McDonalds serves addictive products -- would present a closer question as to a deceptive omission in violation of the Act, as such information is not available to the public.)

Count II, which focuses on representations targeting children, fails for the same reasons discussed above. The Complaint does not identify a single specific advertisement, promotion, or statement directed at infant consumers, and Count II must be dismissed in the absence of such specificity.

The plaintiffs' common law claims against McDonalds sound in negligence, alleging that McDonalds was negligent in manufacturing and selling its products and negligent in failing to warn consumers of the potential hazards of eating its products. . . .

Count III essentially alleges that McDonalds' products are inherently dangerous because of the inclusion of high levels of cholesterol, fat, salt, and sugar. McDonalds argues that because the public is well aware that hamburgers, fries, and other fast food fare have such attributes, McDonalds cannot be held liable.

. . . .

When asked at oral argument to distinguish this case from those cases involving injuries purportedly caused by asbestos exposure, counsel for the defendants stated that in this case, the dangers complained of have been well-known for some time, while the dangers of asbestos did not became apparent until years after exposure. The Restatement provision cited above confirms this analysis, recognizing that the dangers of over-consumption of items such as alcoholic beverages, or typically high-in-fat foods such as butter, are well-known. Thus any liability based on over-consumption is doomed if the consequences of such over-consumption are common knowledge.

It is worth noting, however, that the Restatement provision cited

above included tobacco as an example of products such as whiskey and butter, the unhealthy over-consumption of which could not lead to liability. As the successful tobacco class action litigation and settlements have shown, however, the fact that excessive smoking was known to lead to health problems did not vitiate liability when, for instance, tobacco companies had intentionally altered the nicotine levels of cigarettes to induce addiction. . . .

Thus, in order to state a claim, the Complaint must allege either that the attributes of McDonalds products are so extraordinarily unhealthy that they are outside the reasonable contemplation of the consuming public or that the products are so extraordinarily unhealthy as to be dangerous in their intended use. The Complaint -- which merely alleges that the foods contain high levels of cholesterol, fat, salt and sugar, and that the foods are therefore unhealthy -- fails to reach this bar. It is well-known that fast food in general, and McDonalds' products in particular, contain high levels of cholesterol, fat, salt, and sugar, and that such attributes are bad for one.

This rule makes sense in light of the policy issues discussed at the outset of this opinion. If a person knows or should know that eating copious orders of supersized McDonalds' products is unhealthy and may result in weight gain (and its concomitant problems) because of the high levels of cholesterol, fat, salt, and sugar, it is not the place of the law to protect them from their own excesses. Nobody is forced to eat at McDonalds (except, perhaps, parents of small children who desire McDonalds' food, toy promotions, or playgrounds and demand their parents' accompaniment).

. . . .

In an attempt to save their common law causes of action, plaintiffs raise four arguments that are not alleged in the Complaint to show that McDonalds has a duty toward plaintiffs: (1) McDonalds' products have been processed to the point where they have become completely different and more dangerous than the run-of-the-mill products they resemble and than a reasonable consumer would expect; (2) plaintiffs have an allergic sensitivity to McDonalds' products; (3) McDonalds should know that consumers would misuse products (presumably by eating in larger quantities or at greater frequencies than is healthy); and (4) policy arguments based upon the Nutrition Labeling and Education Act. While the Court may only consider allegations in the Complaint for the purposes of this motion, these arguments are important in determining whether the plaintiffs should have the right to amend their complaint, as they point to potentially viable claims, and thus will briefly be addressed.

For the first time in their opposition papers, the plaintiffs attempt to show that over-consumption of McDonalds is different in kind from, for instance, over-consumption of alcoholic beverages or butter because the processing of McDonalds' food has created an entirely different -- and more dangerous -- food than one would expect from a hamburger, chicken finger, or French fry cooked at home or at any restaurant other than McDonalds. They thus argue that McDonalds' food is "dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics." . . .

Similarly, plaintiffs argue that McDonalds' products have been so altered that their unhealthy attributes are now outside the ken of the average reasonable consumer. They point to McDonalds' ingredient lists to show that McDonalds' customers worldwide are getting much more than what is commonly considered to be a chicken finger, a hamburger, or a French fry. . . .

For instance, Chicken McNuggets, rather than being merely chicken fried in a pan, are a McFrankenstein creation of various elements not utilized by the home cook. . . .

In addition, Chicken McNuggets, while seemingly a healthier option than McDonalds hamburgers because they have "chicken" in their names, actually contain twice the fat per ounce as a hamburger. It is at least a question of fact as to whether a reasonable consumer would know -- without recourse to the McDonalds' website -- that a Chicken McNugget contained so many ingredients other than chicken and provided twice the fat of a hamburger.

Similarly, it is hardly common knowledge that McDonalds' French fries are comprised, in addition to potatoes, of: partially hydrogenated soybean oil, natural flavor (beef source), dextrose, and sodium acid pyrophosphate (to preserve natural color); they are cooked in partially hydrogenated vegetable oils, (“may contain partially hydrogenated soybean oil and/or partially hydrogenated corn oil and/or partially hydrogenated canola oil and/or cottonseed oil and/or corn oil”); TBHQ and citric acid are added to preserve freshness; Dimethylpolysiloxane is added as an anti-foaming agent.

This argument comes closest to overcoming the hurdle presented to plaintiffs. If plaintiffs were able to flesh out this argument in an amended complaint, it may establish that the dangers of McDonalds' products were not commonly well known and thus that McDonalds had a duty toward its customers. The argument also addresses McDonalds' list of horribles, i.e., that a successful lawsuit would mean that "pizza parlors, neighborhood diners, bakeries, grocery stores, and literally anyone else in the food business (including mothers cooking at home),” could potentially face liability. Most of the above entities do not serve food that is processed to the extent that McDonalds' products are processed, nor food that is uniform to the extent that McDonalds' products are throughout the world. Rather, they serve plain-jane hamburgers, fries and shakes -- meals that are high in cholesterol, fat, salt and sugar, but about which there are no additional processes that could be alleged to make the products even more dangerous. In addition, there is the problem of causation; hardly any of the entities listed above other than a parent cooking at home serves as many people regularly as McDonalds and its ilk.

In response to this argument, McDonalds claims that, even if true, it is also a matter of common knowledge that any processing that its foods undergo serve to make them more harmful than unprocessed foods. It is premature to speculate as to whether this argument will be successful as a matter of law if the plaintiffs amend their complaint to include these allegations, as neither argument has been more than cursorily presented to the Court and certainly is not properly before it. McDonalds' argument is insufficient, however, to convince this Court

that the plaintiffs should not have the opportunity to amend their complaint to include these allegations.

Plaintiffs also argue in their papers, less successfully, that McDonalds has a duty to plaintiffs because they have an "allergic sensitivity" to McDonalds fare. . . .

Plaintiffs also attempt to ground a duty in a claim that eating McDonalds with high frequency is a "misuse" of the product of which McDonalds is aware. Again, such allegation was not in the Complaint, and, in any case, plaintiffs fail to allege even in their papers that what is at issue is a misuse "in the sense that it was outside the scope of the apparent purpose for which the [products] were manufactured." . . .

A better argument based on over-consumption would involve a claim that McDonalds' products are unreasonably dangerous for their intended use. The intended use of McDonalds' food is to be eaten, at some frequency that presents a question of fact. If plaintiffs can allege that McDonalds products' intended use is to be eaten for every meal of every day, and that McDonalds is or should be aware that eating McDonalds' products for every meal of every day is unreasonably dangerous, they may be able to state a claim.

. . . .

Because Count III has failed to state a claim, it is dismissed.

McDonalds also argues that Count III should be dismissed because the plaintiffs may not as a matter of law allege that the unhealthy attributes of McDonalds' products were the proximate cause of their obesity and other health problems.

In order to show proximate cause, a plaintiff must establish that the defendant's conduct was a substantial cause in bringing about the harm. . . .

Several factors are considered, including "the aggregate number of actors involved which contribute towards the harm and the effect which each has in producing it," and "whether the situation was acted upon by other forces for which the defendant is not responsible." . . .

No reasonable person could find probable cause based on the facts in the Complaint without resorting to "wild speculation." . . .

First, the Complaint does not specify how often the plaintiffs ate at McDonalds. The class action proposed by plaintiffs could consist entirely of persons who ate at McDonalds on one occasion. As a result, any number of other factors then potentially could have affected the plaintiffs' weight and health. In order to survive a motion to dismiss, the Complaint at a minimum must establish that the plaintiffs ate at McDonalds on a sufficient number of occasions such that a question of fact is raised as to whether McDonalds' products played a significant role in the plaintiffs' health problems. While the assignment of such a frequency is beyond the competency of this Court at this time, it seems like the frequency must be more than once per week -- a figure cited by plaintiffs' counsel in oral argument as a potentially not unhealthy

figure. Naturally, the more often a plaintiff had eaten at McDonalds, the stronger the likelihood that it was the McDonalds' food (as opposed to other foods) that affected the plaintiffs' health.

Second, McDonalds points out that articles on which plaintiffs rely in their Complaint suggest that a number of factors other than diet may come into play in obesity and the health problems of which plaintiffs complain. As a result, in order to allege that McDonalds' products were a significant factor in the plaintiffs' obesity and health problems, the Complaint must address these other variables and, if possible, eliminate them or show that a McDiet is a substantial factor despite these other variables. Similarly, with regard to the plaintiffs' health problems that they claim resulted from their obesity (which they allege resulted from their McDonalds habits) it would be necessary to allege that such diseases were not merely hereditary or caused by environmental or other factors.

Because the Complaint fails to allege that the danger of the McDonalds' products were not well-known and fails to allege with sufficient specificity that the McDonalds' products were a proximate cause of the plaintiffs' obesity and health problems, Count III shall be dismissed.

Count IV alleges a failure to warn of the unhealthy attributes of McDonalds' products. While the cause of action differs from Count III, McDonalds' arguments that this claim fails because the dangers of its fare were well-known and that plaintiffs have failed to show proximate cause are nonetheless applicable.

. . . .

As discussed above, the Complaint fails to allege that the McDonalds' products consumed by the plaintiffs were dangerous in any way other than that which was open and obvious to a reasonable consumer. While the plaintiffs have presented the outline of a substantial argument to the contrary in their papers, as discussed supra, their theory is not supported in their Complaint, and thus cannot save Count IV from dismissal. In addition, as also discussed above, the Complaint does not allege with sufficient specificity that the plaintiffs' consumption of McDonalds' products was a significant factor in their obesity and related health problems. As a result, Count IV must be dismissed.

The exact basis of Count V is unclear. It appears to be a products liability claim, i.e., McDonalds' products are inherently dangerous in that they are addictive. The claim may also be read to allege that McDonalds failed to warn its customers that its products were addictive. This claim, unlike the one above based on unhealthy attributes, does not involve a danger that is so open and obvious, or so commonly well-known, that McDonalds' customers would be expected to know about it. In fact, such a hypothesis is even now the subject of current investigations. . . . Such a finding would go far in explaining why fast-food sales have climbed to more than $100 billion a year . . . despite years of warnings to limit fats. Therefore, it does not run into the same difficulties discussed above with regard to clarifying that the unhealthy attributes are above and beyond what is normally known about fast food.

While it is necessary to accept as true the allegation in the Complaint that McDonalds' products are addictive for the purposes of this motion, such allegation standing alone is, nonetheless, insufficient as overly vague. The Complaint does not specify whether it is the combination of fats and sugars in McDonalds products, that is addictive, or whether there is some other additive, that works in the same manner as nicotine in cigarettes, to induce addiction. Further, there is no allegation as to whether McDonalds purposefully manufactured products that have these addictive qualities. In addition, the Complaint fails to specify whether a person can become addicted to McDonalds' products after eating there one time or whether it requires a steady diet of McDonalds in order to result in addiction. There is also no allegation as to whether plaintiffs, as infants, are more susceptible to the addiction than adults.

While some of these questions necessarily may not be answered until discovery (should this claim be replead and survive a motion to dismiss), and likely then only with the aid of expert witnesses, to allow a complaint to survive merely because it alleges product liability on the basis of addiction would be to allow any complaint that alleges product liability based on the addictive nature of the products to survive dismissal, even where such addiction is likely never to be proven. As a result, a complaint must contain some specificity in order to survive a motion to dismiss.

A claim that a product causes addiction and that reasonable consumers are unaware of that danger must at the very least (1) allege that the plaintiffs are addicted, with allegations revealing ways in which their addiction may be observed, and (2) specify the basis of the plaintiffs' belief that they and others became addicted to the product. Further allegations addressing questions raised above would further strengthen the claim. In the absence of any such specific allegations, Count V must be dismissed.

In any case, as discussed above, the Complaint fails to allege sufficiently that the addictive nature of McDonalds' food and the plaintiffs' resulting ingestion thereof is a proximate cause of the plaintiff's health problems. As a result, Count V is dismissed.

. . . [T]he plaintiffs may amend their complaint to address the deficiencies listed above.

* * *

Pelman v. McDonald’s 2003 WL 2205277 (S.D.N.Y.)(“Pelman II”)

Sweet, Judge.

* * *

McDonald's Advertising Campaigns

In one survey of the frequency of purchases by visitors to McDonald's restaurants, McDonald's found that 72% of its customers were "Heavy Users," meaning they visit McDonald's at least once a week, and that approximately 22% of its customers are "Super Heavy Users," or "SHUs," meaning that they eat "at McDonald's ten times or more a month." Super Heavy Users make up approximately 75% of McDonald's sales. Many of McDonald's advertisements, therefore, are designed to increase the consumption of Heavy Users or Super Heavy Users. The plaintiffs allege that to achieve that goal, McDonald's engaged in advertising campaigns which represented that McDonald's foods are nutritious and can easily be part of a healthy lifestyle.

Advertising campaigns run by McDonald's from 1987 onward claimed that it sold: "Good basic nutritious food.” “Food that's been the foundation of well-balanced diets for generations.” “And will be for generations to come." McDonald's also represented that it would be "easy" to follow USDA and Health and Human Services guidelines for a healthful diet "and still enjoy your meal at McDonald's." McDonald's has described its beef as "nutritious" and "leaner than you think." And it has described its French fries as "well within the established guidelines for good nutrition." While making these broad claims about its nutritious value, McDonald's has declined to make its nutrition information readily available at its restaurants. In 1987, McDonald's entered into a settlement agreement with the New York State Attorney General in which it agreed to “provide [nutritional] information in easily understood pamphlets or brochures which will be free to all customers so they could take them with them for further study [and] to place signs, including in-store advertising to inform customers who walk in, and drive through information and notices would be placed where drive-through customers could see them.” Despite this agreement, the plaintiffs have alleged that nutritional information was not adequately available to them for inspection upon request.

In the amended complaint, the plaintiffs alleged four causes of action as members of a putative class action of minors residing in New York State who have purchased and consumed McDonald's products. Shortly before oral argument, however, the plaintiffs informed the Court that they are dropping their fourth cause of action, which alleged negligence by McDonald's because of its failure to warn plaintiffs of the dangers and adverse health effects of eating processed foods from McDonald's. The three remaining causes of action are based on deceptive acts in practices in violation of the Consumer Protection Act . . . . Count I alleges that McDonald's misled the plaintiffs, through advertising campaigns and other publicity, that its food products were nutritious, of a beneficial nutritional nature or effect, and/or were easily part of

a healthy lifestyle if consumed on a daily basis. Count II alleges that McDonald's failed adequately to disclose the fact that certain of its foods were substantially less healthier, as a result of processing and ingredient additives, than represented by McDonald's in its advertising campaigns and other publicity. Count III alleges that McDonald's engaged in unfair and deceptive acts and practices by representing to the New York Attorney General and to New York consumers that it provides nutritional brochures and information at all of its stores when in fact such information was and is not adequately available to the plaintiffs at a significant number of McDonald's outlets.

The plaintiffs allege that as a result of the deceptive acts and practices enumerated in all three counts, they have suffered damages including, but not limited to, an increased likelihood of the development of obesity, diabetes, coronary heart disease, high blood pressure, elevated cholesterol intake, related cancers, and/or detrimental and adverse health effects and/or diseases.

. . . .

[The court then describes § 349 and § 350. It goes on to conclude that any violation of the act cannot be claimed for actions before 1987 because of the statute of limitations.]

McDonald's argues that the consumer protection claims must be dismissed because the plaintiffs do not "allege that any of them ever saw even one of the McDonald's statements and advertisements described in the Amended Complaint." The plaintiffs counter that they have alleged that their misconceptions about the healthiness of McDonald's food resulted from "a long-term deceptive campaign by Defendant of misrepresenting the nutritional benefits of their foods over last approximate [sic] fifteen (15) years." Plaintiffs are correct that it is not necessary to allege reliance on defendant's deceptive practices in the context of a § 349 claim. . . . To state a claim under § 350 for false advertising, however, it is necessary to allege reliance on the allegedly false advertisement.

While plaintiffs have alleged that McDonald's has made it difficult to obtain nutritional information about its products, they have not alleged that McDonald's controlled all relevant information. Indeed, the complaint cites the complete ingredients of several McDonald's products. Plaintiffs are therefore required to allege reliance in order to survive a motion to dismiss. The plaintiffs' vague allegations of reliance on a "long-term deceptive campaign" are insufficient to fulfill the reliance requirement . . . . Even assuming that the specific advertisements cited by the plaintiffs would be considered deceptive, it cannot be determined that the other advertisements upon which the plaintiffs are alleged to have relied are also deceptive without citing at least one instance of such advertisements. Absent an example of an alleged false advertisement on which plaintiffs relied, the amended complaint states only a legal conclusion -- that the campaign in its entirety is deceptive -- without making a factual allegation. Such conclusory allegations are not entitled to a presumption of truthfulness. . . .

. . . .

Making all reasonable inferences in favor of the plaintiffs, the complaint implicitly alleges only one instance in which the infant plaintiffs were aware of allegedly false advertisements. The plaintiffs implicitly allege that they were aware of McDonald's national advertising campaign announcing that it was switching to "100 percent vegetable oil" in its French fries and hash browns, and that McDonald's fries contained zero milligrams of cholesterol, when they claim that they "would not have purchased or consumed said French fries or hash browns, or purchased and consumed in such quantities," had McDonald's disclosed the fact that these products "contain beef or extracts and trans fatty acids." . . .

The most formidable hurdle for plaintiffs is to demonstrate that they "suffered injury as a result of the deceptive act." . . .

. . . .

Even if plaintiffs were able sufficiently to allege that their injuries were causally related to McDonald's representations about its French fries and hash browns, that claim must still be dismissed because the plaintiffs have not alleged that those advertisements were objectively misleading.

The essence of the plaintiffs' claim of deception with regard to McDonald's French fries and hash browns is that McDonald's represented that its fries are cooked in "100 percent vegetable oil" and that they contain zero milligrams of cholesterol whereas in reality they "contain beef or extracts and trans fatty acids." However, the citations in the amended complaint to McDonald's advertisements, and the appended copies of the advertisements, do not bear out the plaintiffs' claims of deception. The first citation is to an advertisement titled "How we're getting a handle on cholesterol," alleged to have commenced in 1987 and to have continued for several years thereafter. The text cited by the plaintiffs states: “a regular order of French fries is surprising low in cholesterol and saturated fat: only 9 mg of cholesterol and 4.6 grams of saturated fat. Well within established guidelines for good nutrition.” The advertisement also states that McDonald's uses "a specially blended beef and vegetable shortening to cook our world famous French fries and hash browns."

The plaintiffs next allege that beginning on or around July 23, 1990, McDonald's announced that it would change its French fry recipe and cook its fries in "100 percent vegetable oil," a change that rendered its fries cholesterol-free. They allege that from the time of the change until May 21, 2001, McDonald's never acknowledged "that it has continued the use of beef tallow in the French fries and hash browns cooking process." On its website, however, McDonald's is alleged to have "admitted the truth about its French fries and hash browns": “A small amount of beef flavoring is added during potato processing -- at the plant. After the potatoes are washed and steam peeled, they are cut, dried, par-fried and frozen. It is during the par-frying process at the plant that the natural flavoring is used. These fries are then shipped to our U.S. restaurants. Our French fries are cooked in vegetable oil at our restaurants.”

. . . .

Plaintiffs further allege that McDonald's claims that its French fries and hash browns are cholesterol-free is also misleading because the oils in which those foods are cooked contain "trans fatty acids responsible for raising detrimental blood cholesterol levels (LDL) in individuals, leading to coronary heart disease." However, plaintiffs have made no allegations that McDonald's made any representations about the effect of its French fries on blood cholesterol levels.

Because the plaintiffs have failed to allege both that McDonald's caused the plaintiffs' injuries or that McDonald's representations to the public were deceptive, the motion to dismiss the complaint is granted. . . .

* * *

Pelman v. McDonald’s Corp. 396 F.3d 508 (2d Cir. 2005)(“Pelman III”)

Rakoff, Judge.

* * *

In this diversity action, plaintiffs . . . by their respective parents . . . appeal from the dismissal of Counts I-III of their amended complaint. Each of the these counts purports to allege, on behalf of a putative class of consumers, that defendant McDonald's Corporation violated both § 349 and § 350 of the New York General Business Law, commonly known as the New York Consumer Protection Act, during the years 1987 through 2002.

Specifically, Count I alleges that the combined effect of McDonald's various promotional representations during this period was to create the false impression that its food products were nutritionally beneficial and part of a healthy lifestyle if consumed daily. Count II alleges that McDonald's failed adequately to disclose that its use of certain additives and the manner of its food processing rendered certain of its foods substantially less healthy than represented. Count III alleges that McDonald's deceptively represented that it would provide nutritional information to its New York customers when in reality such information was not readily available at a significant number of McDonald's outlets in New York visited by the plaintiffs and others. The amended complaint further alleges that as a result of these deceptive practices, plaintiffs, who ate at McDonald's three to five times a week throughout the years in question, were "led to believe that [McDonald's] foods were healthy and wholesome, not as detrimental to their health as medical and scientific studies have shown . . . [and] of a beneficial nutritional value," and that they "would not have purchased and/or consumed the Defendant's aforementioned products, in their entire[t]y, or on such frequency but for the aforementioned alleged representations and campaigns." Finally, the amended complaint alleges that, as a result, plaintiffs have developed "obesity, diabetes, coronary heart disease, high blood pressure, elevated cholesterol intake, related cancers, and/or other detrimental and adverse health effects . . . ." What is missing from the amended complaint, however, is any express allegation that any plaintiff specifically relied to his/her detriment on any particular representation made in any particular McDonald's advertisement or promotional material. The district court concluded that, with one exception, the absence of such a particularized allegation of reliance warranted dismissal of the claims under § 350 which prohibits false advertising. As to the exception -- involving McDonald's representations that its French fries and hash browns are made with 100% vegetable oil and/or are cholesterol-free -- the district court found that, while the amended complaint might be read to allege implicit reliance by plaintiffs on such representations, the representations themselves were objectively non-misleading.

Although plaintiffs' notice of appeal states that they challenge the judgment "dismissing the Plaintiffs' Amended Complaint," their brief on appeal contains no argument as to why the district court's dismissal

of the claims asserted under § 350 was incorrect. Accordingly, we regard any challenge to the dismissal of the § 350 claims as abandoned.

Plaintiffs' appellate brief does, however, challenge the district court's dismissal of the claims under § 349 which makes unlawful "[d]eceptive acts or practices in the conduct of any business, trade, or commerce, or in the furnishing of any service in this state." Unlike a private action brought under § 350, a private action brought under § 349 does not require proof of actual reliance. Additionally, § 349 extends well beyond common-law fraud to cover a broad range of deceptive practices . . . and because a private action under § 349 does not require proof of the same essential elements (such as reliance) as common-law fraud, an action under § 349 is not subject to the pleading-with-particularity requirements . . . but need only meet the bare-bones notice-pleading requirements . . . .

Although the district court recognized that § 349 does not require proof of reliance, the district court nonetheless dismissed the claims because it concluded that "[p]laintiffs have failed, however, to draw an adequate causal connection between their consumption of McDonald's food and their alleged injuries." Thus, the district court found it fatal that the complaint did not answer such questions as: What else did the plaintiffs eat? How much did they exercise? Is there a family history of the diseases which are alleged to have been caused by McDonald's products? Without this additional information, McDonald's does not have sufficient information to determine if its foods are the cause of plaintiffs' obesity, or if instead McDonald's foods are only a contributing factor.

This, however, is the sort of information that is appropriately the subject of discovery, rather than what is required to satisfy the limited pleading requirements . . . .

So far as the § 349 claims are concerned, the amended complaint more than meets the [minimum pleading] requirements . . . .

Accordingly, the district court's dismissal of those portions of Counts I-III of the amended complaint as alleged violations of § 349 [is vacated].

* * *

Cheryl L. Hayne, Patricia A. Moran, & Mary M. Ford, “Regulating Environments to Reduce Obesity,” 25 Journal of

Public Health Policy 391-99 (2005)

* * *

. . . [R]egulatory interventions can help create a food environment more conducive to healthy dietary practices. Regulatory interventions may come in many forms. In order to illustrate two potential regulatory fulcra for legal levers, we will focus here on product labeling and advertising restrictions, and two federal agencies.

. . . .

Restaurant Food Labeling

The Food and Drug Administration has authority to regulate nutritional labeling of processed foods in the United States. The Federal Food, Drug and Cosmetic Act, however, exempts restaurants. They are not required to disclose nutrition information. This exemption seems out-of-date, as Americans now spend about half of their food budget purchasing meals and drinks outside of the home. Exempting the restaurant and fast-food industry from disclosing the content and nutritional value makes it difficult for consumers to estimate the energy content of the food they consume away from home. And food eaten outside of the home is generally higher in fat and lower in other nutrients than food prepared at home. Many popular table-service restaurants serve 1000-2000 calories per meal, or 35% to 100% of a full day's energy required for most adults. . . . Mandating point-of-sale nutritional information for customers could combat increased portion sizes and decreased nutritional value of fast-food and restaurant meals as eating out becomes a larger part of U.S. food consumption. This information might enable consumers to make informed dietary decisions. It could also encourage restaurants to modify their ingredients and menus to provide greater healthy and nutritious food and beverage options to their customers.

Advertising

Food manufacturers' and restaurant chains' advertising encourages consumers to purchase unhealthy foods and make poor dietary decisions. Children are a particularly attractive marketing target. Their increasing buying power and influence on goods purchased for the wider household have encouraged the food industry to target children. In many countries, advertising for energy-dense food targeting children has increased relative to other age group targets. Considerable effort goes into planning the seeds of brand loyalty with this vulnerable group.

High exposure of children to advertisements for foods high in fat and sugar is believed to be a major contributor to obesity. "Eight in ten adults agree that business marketing and advertising exploit children by convincing them to buy things that are bad for them or that they don't need." The study found these concerns highest in relation to

food and nutrition issues. Most foods advertised to children -- fast food, sweets, ice creams, and carbonated drinks -- are highly processed, high in fat and/or sugar and low in nutrients; providing "empty calories." Food marketing has not only undermined parents' dietary preferences, but these highly marketed foods in children's diets contribute to early increasing weight and associated health problems. Eighty percent of obese adolescents remain obese as adults, primarily because dietary habits developed when young persist for a lifetime. That advertising of these products is a direct cause of children's weight and health problems appears to be widely accepted by critics and by some policy makers. Advertising must be effective or why else would the food industry spend so much on it?

In the United States alone, the U.S. food industry spends about $11 billion annually on advertising in addition to another $22 billion on other consumer promotions. Such expenditures dwarf the National Cancer Institute's $1 million annual investment in its educational "5-A-Day" campaign to increase fruit and vegetable consumption or the $1.5 million budget of the National Heart, Lung and Blood Institute's National Cholesterol Education Campaign. . . .

Governments both here and elsewhere might intervene with regulatory actions restricting food marketing practices to overcome this market failure. No one has suggested that governments are likely to spend enough on informational efforts to overcome current industry advertising practices. Provided with balanced information and no longer bombarded pervasively by advertisements for high-calorie, high-fat and high-sugar products, perhaps consumers will have the ability to make healthier food purchasing decisions.

Unlike the FDA, which would need legislative changes before regulating restaurants, the Federal Communications Commission already regulates radio and television broadcasting. Might it consider requiring broadcasters to provide equal time for messages promoting healthy eating and physical activity? Perhaps a greater opportunity comes from restricting advertising of high-calorie, low-nutrient foods on television programming commonly watched by children. If the FCC prohibited "junk food" advertisers from targeting children under a specific age, would children be less likely to purchase, or ask their parents to purchase, unhealthy foods?

The United States could make substantial contributions to the international obesity epidemic, were it to step up efforts to regulate the industry and the food environment to promote healthier and more informed consumer choice. Regulatory actions are already gaining acceptance abroad. . . .

. . . .

The nutritional labeling of foods consumed away from home and health-conscious advertising limitations are two areas that are worthy of regulatory consideration. As discussed above, children have become targets for aggressive advertising of unhealthy foods. Advertising, however, is only one factor fuelling the overweight epidemic; certain aspects of the school environment also encourage weight gain and inactivity among children. The school environment offers some promising opportunities for regulators.

THE SCHOOL ENVIRONMENT

Schools offer an opportunity to address the increasing incidence and prevalence of overweight among children and adolescents. Because children spend a high percentage of their formative years at school, a healthy school environment could influence a child's eating and fitness habits for years to come. . . .

The National School Lunch Program

The National School Lunch Program (NSLP), administered by the United States Department of Agriculture (USDA), serves lunch to approximately 2.5 million American children each school day. Schools choosing to participate receive donated commodities and cash subsidies. They are obliged to provide free or reduced-price lunches to eligible low-income children. All lunches and snacks served under the NSLP must meet federal nutritional guidelines: no more than 30% of calories may be from total fat and no more than 10% from saturated fat; and the lunch must contain one-third of Recommended Daily Allowances for calories, protein, iron, calcium, and vitamins A and C.

Many school cafeterias also offer foods not currently regulated by the USDA. Products sold á la carte or in vending machines, in competition with the NSLP, generally lack comparable nutritional value. Researchers studying 20 Minnesota secondary schools found that high-fat foods such as chips, crackers and ice cream constituted 21.5% of the available á la carte items; while a mere 4.5% of the á la carte items were fruits and vegetables. Two-thirds of the schools examined had soft drink contracts for vending machines. Adolescents have increased their consumption of high-sugar soft drinks by 100% in the last 20 years. Not surprisingly, this energy intake has been linked to weight gain.

Improvements to the NSLP could help combat the obesity epidemic. Expanding NSLP authority to regulate á la carte items and vending may be an avenue to control the types of foods offered to students. With greater authority, it would be possible to replace high-fat and high-sugar food with more nutritious choices.

Physical and Nutrition Education

One key regulatory opportunity at the state level lies in improvements to physical and nutrition education programs. A recent survey shows that state physical education mandates are usually general and include only minimum recommendations leaving interpretations up to local school districts. Resulting physical education programs often fail to meet the recommendations of the Surgeon General and CDC for daily physical education. A report published by the National Center for Education Statistics shows similar deficits in nutrition education: In grades kindergarten to eight only 50% of schools were required by state or district mandates to provide nutrition education. This figure drops to 40% for grades 9 and 10 and to 20% for grades 11 and 12. Failure to fund nutrition and physical education ultimately results in increased state and federal healthcare spending. State mandates to require daily physical education and quality nutrition education in all primary and secondary schools might reduce obesity, but could prove costly to school districts.

Vending Contracts

Local schools have the power to make the greatest and most immediate impact to combat overweight children and adolescents by eliminating soft drink vending machines. Soft drink vending machines have become a ubiquitous fixture in schools in the United States. In Minnesota, 98% of secondary schools and 44% of elementary schools in Kentucky have vending machines. Researchers have found that each daily serving of a sugar-sweetened beverage increases the odds of becoming obese by 1.6.

If vending machine contracts can be modified or eliminated so that machines are either removed or promote healthy beverages, students would have less access to sugary beverages and consumption would decline. This is not unprecedented: The Los Angeles Board of Education has taken action to eliminate the availability of soft drinks in all elementary, middle and high schools and Texas has recently started controlling soft drinks, as well.

But special consideration must be given to school budget constraints and dependence on revenues from vending machines and other food marketing. When Texas took a first step to regulate food choices in the Texas Public School System by issuing new nutrition policies and restricting the availability of soft drinks and high-fat foods, it tried to offset any disruption to school fundraising with a program from the Texas Department of Agriculture to help school districts learn to raise funds without using food.

Limitations of Regulations in the School Environment

Students spend about 7 hours a day for 180 days a year in the school environment and most consume at least one of three meals per day in school. From 35% to 40% of adolescents' total energy intake is being consumed in secondary school. Schools influence a child's eating, drinking and fitness behavior. At home, many children live (and consume most of their calories) in the company of family members who eat poorly. Schools can temper this problem by involving parents in the school's nutrition initiatives. Intense academic requirements and limited budgets often leave little time for physical and nutrition education. Children must be healthy and ready to learn, thus, curriculum reform to improve academic results might well be approached holistically, taking into account not only intellectual growth but physical health and fitness.

. . . .

THE BUILT ENVIRONMENT

[The authors then discuss their views on the "built environment," the various aspects of a community's physical layout, which creates opportunities for exercise and physical activity.]

* * *The California Childhood Obesity Prevention Act of 2005

The Legislature finds and declares as follows:

In the past two decades obesity has doubled in children, and tripled in adolescents. On average, 30 percent of California's children are overweight, and in some school districts, anywhere from 40 to 50 percent of California's pupils are overweight. Only 2 percent of California's adolescents, between the ages of 12 and 17 years, inclusive, have eating habits that meet national dietary recommendations. Only 23 percent of pupils in grades 5, 7, and 9 are physically fit. Almost half of the children and adolescents diagnosed with diabetes have the Type 2 form of the disease, which is strongly linked to obesity and lack of exercise. One in four obese children have early signs of Type 2 diabetes.

Overweight and physical inactivity costs California an estimated 24.6 billion dollars annually, approximately seven hundred fifty dollars ($750) per person -- a cost that is expected to rise by another 32 percent by the year 2005. Poor nutrition and physical inactivity account for more preventable deaths (28 percent) than anything other than tobacco -- more than AIDS, violence, car crashes, alcohol, and drugs combined. The long-term impact of childhood obesity on California's economy, and on our children's increased risk of death from heart disease, cancer, stroke, and diabetes will be staggering. Approximately 300,000 deaths in the United States per year are currently associated with obesity and overweight; the total direct and indirect costs attributed to overweight and obesity amounted to 117 billion dollars in the year 2000. Obesity is linked to a larger increase of chronic health conditions and accounts for a significantly higher amount of health expenditures than those associated with smoking, heavy drinking, or poverty.

Each additional daily serving of sugar-sweetened soda increases a child's risk for obesity by 60 percent. Twenty years ago, boys consumed more than twice as much milk as soft drinks, and girls consumed 50 percent more milk than soft drinks. By 1996, both boys and girls consumed twice as many soft drinks as milk. Soft drinks now comprise the leading source of added sugar in a child's diet. Teenage boys consume twice the recommended amount of sugar each day, almost one-half of which (44 percent) comes from soft drinks. Teenage girls consume almost three times the recommended amount of sugar, 40 percent of which comes from soft drinks.

A study of 9th and 10th grade girls found that those who drank colas were five times more likely to develop bone fractures, and girls who drank other carbonated beverages were three times more likely to suffer bone fractures than nonconsumers of carbonated beverages. Decreased milk consumption means that children are no longer getting required amounts of calcium in their diets. The average teenage girl now consumes 40 percent less calcium than she needs, putting her at high risk of osteoporosis in her later years.

[The legislation then amended the pre-existing law concerning sale of beverages to pupils at elementary, middle or junior high schools, California Education Code § 49931.5 to read in part:]

(a)(1) Regardless of the time of day, only the following beverages may be sold to a pupil at an elementary school:

(A) Fruit-based drinks that are composed of no less than 50 percent fruit juice and have no added sweetener.

(B) Vegetable-based drinks that are composed of no less than 50 percent vegetable juice and have no added sweetener.

(C) Drinking water with no added sweetener.

(D) Two-percent-fat milk, one-percent-fat milk, nonfat milk, soy milk, rice milk, and other similar nondairy milk.

(a)(2) An elementary school may permit the sale of beverages that do not comply with paragraph (1) as part of a school fundraising event in any of the following circumstances:

(A) The items are sold by pupils of the school and the sale of those items takes place off and away from the premises of the school.

(B) The items are sold by pupils of the school and the sale of those items takes place one-half hour or more after the end of the schoolday.

(a)(3) From one-half hour before the start of the schoolday to one-half hour after the end of the schoolday, only the following beverages may be sold to a pupil at a middle or junior high school:

(A) Fruit-based drinks that are composed of no less than 50 percent fruit juice and have no added sweetener.

(B) Vegetable-based drinks that are composed of no less than 50 percent vegetable juice and have no added sweetener.

(C) Drinking water with no added sweetener.

(D) Two-percent-fat milk, one-percent-fat milk, nonfat milk, soy milk, rice milk, and other similar nondairy milk.

(E) An electrolyte replacement beverage that contains no more than 42 grams of added sweetener per 20-ounce serving.

(a)(4) A middle or junior high school may permit the sale of beverages that do not comply with paragraph (3) as part of a school event if the sale of those items meets all of the following criteria:

(A) The sale occurs during a school-sponsored event and takes place at the location of that event at least one-half hour after the end of the schoolday.

(B) Vending machines, pupil stores, and cafeterias are used later than one-half hour after the end of the schoolday.

(a)(5) This subdivision does not prohibit an elementary, or middle or junior high school from making available through a vending machine any beverage allowed under paragraph (1) or (3) at any time of day, or, in middle and junior high schools, any beverage that does not comply with paragraph (3) if the beverage only is available not later than one-half

hour before the start of the schoolday and not sooner than one-half hour after the end of the schoolday.

(b)(1) Commencing July 1, 2007, no less than 50 percent of all beverages sold to a pupil from one-half hour before the start of the schoolday until one-half hour after the end of the schoolday shall be those enumerated by paragraph (3).

(b)(2) Commencing July 1, 2009, all beverages sold to a pupil from one-half hour before the start of the schoolday until one-half hour after the end of the schoolday shall be those enumerated by paragraph (3).

(b)(3) Beverages allowed under this subdivision are all of the following:

(A) Fruit-based drinks that are composed of no less than 50 percent fruit juice and have no added sweetener.

(B) Vegetable-based drinks that are composed of no less than 50 percent vegetable juice and have no added sweetener.

(C) Drinking water with no added sweetener.

(D) Two-percent-fat milk, one-percent-fat milk, nonfat milk, soy milk, rice milk, and other similar nondairy milk.

(E) An electrolyte replacement beverage that contains no more than 42 grams of added sweetener per 20-ounce serving.

* * *

Notes to Chapter Five

1. The problem of obesity in the United States is qualitatively different from the problems described in previous chapters. To refer to obesity as a public health problem blurs some key distinctions. Obesity is neither a disease nor the result of one. It is not infectious, or, more critically, something that directly causes harm to anyone other the individual who is labeled “obese.” And it is a label. There are some working definitions of who is overweight and who is obese, but ultimately obesity is a judgment call and that judgment involves more than what any objective measure can ascertain and quantify. As a result, the causes of obesity, the resulting health and economic consequences, and the possible remedial solutions are difficult even to discuss let alone verify and assess.

Having said all that, one thing is clear: There is something happening to people in the United States and, apparently, elsewhere, that has to do with the way they live and eat and the net impact on their health. Lots of us are, to use an interesting expression, “out of shape.” And while even a moment’s reflection will make it clear that the body’s “shape” is not a public health problem, what we all know at some level is that our “shape” is a fairly clear and visible indicator of some things that are surely problematic; if, as most of us believe, there are more and more bodies “out of shape,” those problems are increasing.

According to the Surgeon General’s report -- and a host of other public health experts -- lack of “shape” or, to use the term most often used in public discussion of the problem, obesity is a problem of epidemic proportions in the United States. The prevalence of obesity has increased substantially in the United States over the last two decades and appears to be increasing. In 2000, over 30 percent of American adults were described as obese (BMI index greater than 30) nearly 60 million people. This condition is associated with higher rates of heart disease, diabetes, and a number of other medical conditions, and has resulted in nearly 300,000 premature deaths.

Converting those human cost figures into dollar costs, the CDC has estimated that medical costs of treating illnesses were nearly $100 billion in 2004, rivaling the costs associated with smoking. Nearly half of these costs are paid by Medicare and Medicaid.

For a more recent analysis of the obesity problem that reaffirms the conclusions of the Surgeon General’s 2001 report, see the Institute of Medicine, The Future of the Public’s Health in the 21 st Century (2003) at 76-83. For a more academic assessment of the data, see Ali H. Mokdad, et al., “The Spread of the Obesity Epidemic in the United States 1991-1998,” 282 JAMA 1519 (1999).

For a more detailed data on the distribution of obesity among Americans: http://www.cdc.gov/nccdphp/dnpa/obesity/index.htm (last visited March 2005); http://www.surgeongeneral.gov/topics/obesity (last visited March 2005); http://www.cdc.gov/nchs/products/pubs/ (last visited march 2005).

For sources of information on a state-by-state basis, see http://www.cdc.gov/washington/overview/obesity.html (last visited March 2005); http://www.cdc.gov/nccdphp/dnpa/obesity/state_programs (last visited March 2005). For an assessment of the efforts by each state to combat obesity, see the “Obesity Report Cards” found at http://www.ubalt.edu/experts/obesity (last visited may 2005).

2. The trends concerning obesity among American children are even more disturbing. According to a review of the literature by the IOM:

Trends in childhood and youth obesity mirror a similar profound increase over the same approximate period in U.S. adults as well as a concurrent rise internationally, in both developed and developing countries. The obesity epidemic affects both boys and girls and has occurred in all age, race, and ethic groups throughout the United States. In addition to the increase in obesity prevalence, the heaviest group of children is getting heavier whereas the leanest group of children is staying lean. What this means is that among younger age groups of children 6 to 11 years of age and, to a lesser extent, adolescents the lowest part of the BWI distribution appears to have changed little over time.

Institute of Medicine, Childhood Obesity in the United States: Facts and Figures (September 2004). For more details and a further specification of these “facts and figures,” see Institute of Medicine, Preventing Childhood Obesity: Health in the Balance (2004) (found documents can be found at http://www.iom.edu/ (last visited March 2005).

3. As reflected by the executive summary of the WHO/FAO report, the problem of obesity is hardly confined to the United States. Americans may be getting bigger and fatter, but the rest of the world is not far behind -- and apparently for many of the same reasons. For the full WHO/FAO report, see http://who.int/dietandphysicalactivity/publications (last visited march 2005).

For a more detailed analysis of obesity among children in other countries (and some suggestions about what should be done about it), see Cara B. Ebbeling, et al., “Childhood Obesity: Public Health Crisis, Common Sense Cure,” 360 Lancet 473 (2002).

4. Because of the nature of the problem -- i.e., obesity itself is not a disease but rather associated with many diseases and adverse effects on health -- the actual costs of obesity are hard to quantify; nonetheless, the overall picture is fairly straightforward. For some good efforts to summarize and assess the effects of obesity, see, Aviva Must et al., “The Disease Burden Associated With Overweight and Obesity,” 282 JAMA 1623 (1999); David B. Allison et al., “Annual Deaths Attributable to Obesity in the United States,” 282 JAMA 1530 (1999); A.M. Wolf & Graham A. Colditz, “Current estimates of the economic Costs of Obesity in the United States,” 6 Obesity Research 97 (1998).

5. Note that the discussion of possible remedial solutions in the Surgeon General’s report and, to a lesser extent, the WHO/FAO report follows the same pattern later adopted in the IOM report discussed in Chapter One: They envision a grand, cooperative partnership of everyone involved -- government, business, food producers, schools, etc. -- that would work together to solve the problem. There is little realistic discussion of the role that some of these actors play in producing the problem in the first place. Nor is there any realistic game plan for what should happen if this fanciful coalition does not join hands in cooperation.

The excerpt from Brownell, on the other hand, focuses on these more controversial aspects of the problem. As Brownell and Horgen argue, Americans don’t just eat too much and exercise too little because many of them are stupid. They do so, in part, because of the social and economic environment in which they live. And at least part of that environment has been structured by the entities that directly profit from Americans’ bad eating habits. Moreover, since they profit from that environment, they will resist any changes in that environment, whatever the merits of the public health-based justifications for doing so. Thus advocacy of “grand cooperative effort” to fight obesity is at least naïve -- if not politically disingenuous.

Brownell and Horgen are hardly alone in their more realistic analysis of the problem. For other interesting works with similar political messages, see Eric Schlosser, Fast Food Nation (2002)(particularly the chapter on the safety of meat generally and, in particular, that used to prepare fast food); David G. Hogan, Selling ‘Em By the Sack (1998)(the history of White Castle hamburgers and their pioneering of various means for increasing consumption of fast food); Marion Nestle, Food Politics: How the Food Industry Influences Nutrition and Health (2002).

For a useful source of current information on nutrition politics and related matters, see http://www.cspinet.org/(the website of the Nutrition Action Newsletter) (last visited March 2005). See also http://www.phaionline (the website of the Public Health Advocacy Institute) (last visited March 2005).

6. Are lawsuits such as Pelman viable? If they are, will they help reduce obesity and its consequent results?

The answer to the first question is yet to be determined. Pelman III left the plaintiff with a viable cause of action, at least sufficient to survive summary judgment, but the plaintiff’s face substantial problems of proof if they take their case to trial. Moreover, the courts seem to have rejected most of the causes of action except for those under the New York trade laws; there may not be analogous legislation in other jurisdictions. On the other hand, both the trial judge and the appellate judges seem to imply some sympathy for the plaintiffs and some animus for the behavior of the defendants.

Louisiana and at least 12 other states have enacted laws since 1992 attempting to immunize the fast food industry from these sorts of law suits. For a review of pending lawsuits, legislation intended to

immunize potential defendants, and references to other sources, see http://www.banzhaf.net/obesity/links/ (last visited February 2005).

The legal literature has been sparse but not particularly enthusiastic about these “chesseburger lawsuits.” See, e.g., Amy Vroom, “Fast Food or Fat Food: Food Manufacturer Liability for Obesity,” 72 Defense Counsel Journal 56 (2005).

The public reaction to these lawsuits has paralleled the apparent view of the state legislatures in Louisiana and other states; most people think it is silly to claim that fast food purveyors have caused, in the legal sense of the term, people to become obese. But are these lawsuits as specious as they may appear at first glance? Are their parallels to the tobacco litigation discussed in Chapter Four -- which many people thought were silly until all of the facts came out? Can you imagine some set of facts that may be discovered, comparable to the revelations about the nicotine cover-up and other fraudulent practices of the tobacco companies, that might make these lawsuits more factually plausible or legally viable?

7. If privately initiated lawsuits are either not viable or not effective in combating the problems of obesity, are there market-based strategies that may resolve the problem? If Americans consumers started demanding more healthy foods, surely the retail food and restaurant industries would start selling more of them. But part of the problem is that many people don’t know what is and is not healthy and lack the information to make those decisions.

Would better nutritional labeling help resolve this problem? The Food and Drug Administration has the authority to regulate the nutritional labeling of processed foods, although food served in restaurants is exempted from their authority. Should that exemption be removed? Are the current efforts of the FDA appropriate or sufficient? For a discussion, see Rebecca Fribush, “Putting Calories and Fat Counts on the Table: Should Mandatory Nutritional Disclosure laws Apply to Restaurant Foods?” 73 George Washington Law Review 377 (2005).

Or is the problem more a matter of the misinformation and the other demand-inducing effects of food advertising? Should the government regulate food advertising more closely? Alternatively, should the government engage in more counter-advertising and consumer education? Any effort to regulate food advertising, of course, would have to overcome the same First Amendment concerns as discussed with respect to the regulation of tobacco advertising in Chapter Four: It would have to be carefully tailored to meet the demands of the so-called Central Hudson test. For a good discussion, see Rachel Weiss & Jason Smith, “Legislative Approaches to the Obesity Epidemic,” 25 Journal of Public Health Policy 379, 383-385 (2005).

8. A few local communities and states have experimented with “fat taxes,” taxes on soft drinks, fast foods, or other less-than-healthy food. Apparently such taxes can be a good source of revenue and, as “sin taxes,” are somewhat less controversial than other forms of taxation. Whether they can have any effect on the consumption of these foods is harder to assess. For an extended review of “fat taxes,” their effects,

and related matters, see Jeff Strnad, Conceptualizing the “Fat Tax”: The Role of Food Taxes in Developed Economies (Working Paper July 2004) (available at http://ssrn.com/abstract_id=561321) (last visited March 2005). According to Strnad,

As of the middle of 2000, 17 states and two major cities imposed junk food taxes. Eight other states have imposed junk food taxes in the past, but repealed them prior to 2000. . . .

. . . Advocates now propose extending these taxes as a way to fund public health initiatives with respect to diet and exercise. The envisioned initiatives would counter what the advocates see as a “toxic environment” that provides access to and encourages consumption of a diet high in fat, high in calories, delicious, widely available, and low in cost. . . . The advocates emphasize that the taxes would not have to be very heavy, e.g., on the order of a penny per can of soda, in order to raise substantial revenues, and they note that surveys indicates substantial support for small taxes conditional on the revenues being spent to fund health education programs.

Tying junk food taxes to health initiative expenditures may create public appeal, but from a normative standpoint the justification for connecting the tax and the expenditure is not clear . . . .

A second set of tax proposals is much more ambitious. These proposals often fall under the moniker of the “fat taxes” because many of the proposed taxes would apply to fatty foods or to the fat content of foods. Some of the proposals are not limited to fat content. The most general simply call for taxing unhealthy foods and subsidizing healthy foods. In contrast to junk food taxes, fat taxes explicitly attempt to influence behavior to meet public health goals. [S]uch taxes are concerned about the impact of food taxes on consumption.

. . . Focusing on this goal raises the question of why the government should interfere with individual choice with respect to diet. . . .

Id. at 5-6.

9. In Adam Benforado, et al., “Broken Scales: Obesity and Justice in America,” 53 Emory Law Journal 1645 (2004) the authors attempt to assess the linkage between the availability of food, the efforts by corporate entities to encourage its consumption, and the apparent epidemic of obesity. They come to some interesting conclusions. As reflected in the following paragraph, they too challenge the assumption that obese people simply make bad decisions about what they choose to eat:

The point of this excursion into the realities of human eating has been to enable a critical realist analysis of the obesity crisis. The experience of eating is driven in powerful ways by the unseen realities of our interior situation and because these realities are hidden, our conceptions of the obese and overweight end up being tragically distorted. When we see fat

people eating, we assume that hunger has nothing to do with it because we "know" that we feel hungry and eat when our bodies need more food, and their bodies clearly do not need more food. Eating by the obese and the overweight, we therefore mistakenly conclude, must be driven not by legitimate hunger and food needs, but by something less legitimate -- something like gluttony, or at the very least, something arising from personal, dispositional choice.

Id. at 1687-88.

10. As discussed in the Hayne article, the federal government has been involved in underwriting better nutrition in the nation’s schools since 1946 when the first national school lunch program (NSLP) was enacted. Since that time, the program has been expanded to include federal aid for pre-school meals and “snacks,” and grown to become a multi-billion undertaking serving tens of millions of children. While the program has been publicized as an attempt to ensure that the nation’s children get enough to eat, the program’s efforts to ensure that the meals that are provided are, in fact, healthy have been limited and enforcement of the program’s dietary standards has been limited.

According to amendments to the NSLP enacted in 2004, all participating schools must establish “local wellness policies” including goals for improving nutrition, physical activity, and nutrition education by July 2006. See Pub. Law. No. 108-265, § 204. Whether this will be still another unenforceable federal requirement remains to be seen.

For additional description of the NSLP, related legislation, and references to other sources, see http://www.schoolnutrition.org/Index (last visited March 2005).

11. One issue that has drawn considerable public attention and some political action is the extent to which soft drink and other fast-food retailers have been allowed to advertise in schools, either as part of the “Channel One” in-school television programming or through logos or other advertisements on school facilities, athletic score boards, or vending machines. During the last decade many schools -- as many as 75 percent nationwide -- have entered some sort of contractual arrangement with one or another soda pop company, allowing advertising privileges in return for cash or in-kind contributions. Should schools be able to do this? Should this be considered as part of the education of students or a matter of revenue raising?

For a relevant and provocative study that seems to indicate that consumption of soda pop is an important and direct cause of obesity in children, see David Ludwig, et al., “Relation Between Consumption of Sugar-Sweetened Drinks and Childhood Obesity: A Prospective, Observational Analysis,” 357 Lancet 505 (2001). Among other things, the authors concluded that “the odds of becoming obese among children increased 1.6 times for each additional can or glass of sugar-sweetened drink that they consumed every day.” Id. at 507.

In what may be regarded as one hopeful sign, Coca-Cola, Pepsico, and other soft drink companies announced in August of 2005 that they had agreed to limit -- voluntarily -- the sale of soft drinks in elementary,

middle, and high schools. According to a statement published August 17, 2005, and distributed through the media, no carbonated soft drinks, diet or regular, will be sold in vending machines in elementary schools; in middle schools regular carbonated soft drinks will not be sold in vending machines, although diet soft drinks, and “alternative drinks” such as bottled water, sports drinks, and juice may be. In high schools, no more than half the vending machines can be filled with carbonated soft drinks. Whether this policy will be strictly followed or not, remains to be seen. More importantly, whether it will have any measurable impact on the amount of soft drinks consumed or, more importantly, the health status of school children, also is yet to be determined.

In 2005, California passed legislation that may have mooted that the voluntary efforts of the soft drink industry and gone several steps further in efforts to improve the nutrition available in its public schools.

12. Is obesity a public health problem in the sense that public health agencies should be undertaking efforts comparable to those described in earlier chapters? Beyond school-based programs targeting children, what other public health measures are currently under consideration? For one interesting effort to devise a comprehensive attack on obesity, see Walter C. Willett & Serena Domolky, Strategic Plan for the Prevention and Control of Overweight and Obesity in New England found at http://www.neconinfo.org/docs/StrategicPlan (last visited March 2005).

For a related academic review, see Marion Nestle & Michael F. Jacobson, “Halting the Obesity Epidemic: A Public Health Policy Approach,” 115 Public Health Reports 12 (2000).

13. Everyone seems to agree that American eat too much of the wrong foods -- and get too little exercise to burn their excess calories. But what should Americans eat? For some standards to consider, see Appendix A. For a complete version of these guidelines, see U.S. Dept. of Agriculture and Dept. of Health and Human Services, Dietary Guidelines of Americans (5th ed. 2000)(found at http://www.health.gov/dietaryguidelines/dga2005/ (last visited March 2005).

Appendix to Chapter Five: U.S. Department of Agriculture & U.S. Department of Health & Human Resources, Dietary Guidelines for Americans 2005 (Executive Summary)

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The Dietary Guidelines for Americans [Dietary Guidelines] provides science-based advice to promote health and to reduce risk for major chronic diseases through diet and physical activity. Major causes of morbidity and mortality in the United States are related to poor diet and a sedentary lifestyle. Some specific diseases linked to poor diet and physical inactivity include cardiovascular disease, type 2 diabetes, hypertension, osteoporosis, and certain cancers. Furthermore, poor diet and physical inactivity, resulting in an energy imbalance (more calories consumed than expended), are the most important factors contributing to the increase in overweight and obesity in this country. Combined with physical activity, following a diet that does not provide excess calories according to the recommendations in this document should enhance the health of most individuals.

. . . .

The intent of the Dietary Guidelines is to summarize and synthesize knowledge regarding individual nutrients and food components into recommendations for a pattern of eating that can be adopted by the public. In this publication, key recommendations are grouped under nine inter-related focus areas. The recommendations are based on the preponderance of scientific evidence for lowering risk of chronic disease and promoting health. It is important to remember that these are integrated messages that should be implemented as a whole. Taken together, they encourage most Americans to eat fewer calories, be more active, and make wiser food choices.

A basic premise of the Dietary Guidelines is that nutrient needs should be met primarily through consuming foods. Foods provide an array of nutrients and other compounds that may have beneficial effects on health. In certain cases, fortified foods and dietary supplements may be useful sources of one or more nutrients that otherwise might be consumed in less than recommended amounts. However, dietary supplements, while recommended in some cases, cannot replace a healthful diet.

. . . .

Throughout most of this publication, examples use a 2,000-calorie level as a reference for consistency with the Nutrition Facts Panel. Although this level is used as a reference, recommended calorie intake will differ for individuals based on age, gender, and activity level. At each calorie level, individuals who eat nutrient-dense foods may be able to meet their recommended nutrient intake without consuming their full calorie allotment. The remaining calories -- the discretionary calorie allowance -- allow individuals flexibility to consume some foods and beverages that may contain added fats, added sugars and alcohol.

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ADEQUATE NUTRIENTS WITHIN CALORIE NEEDS

Key Recommendations

Consume a variety of nutrient-dense foods and beverages within and among the basic food groups while choosing foods that limit the intake of saturated and trans fats, cholesterol, added sugars, salt, and alcohol.

Meet recommended intakes within energy needs by adopting a balanced eating pattern. . . .

Key Recommendations for Specific Population Groups

People over age 50.

Consume vitamin B12 in its crystalline form (i.e., fortified foods or supplements).

Women of childbearing age who may become pregnant.

Eat foods high in heme-iron and/or consume iron-rich plant foods or iron-fortified foods with an enhancer of iron absorption, such as vitamin C-rich foods.

Women of childbearing age who may become pregnant and those in the first trimester of pregnancy.

Consume adequate synthetic folic acid daily (from fortified foods or supplements) in addition to food forms of folate from a varied diet.

Older adults, people with dark skin, and people exposed to insufficient ultraviolet band radiation (i.e., sunlight).

Consume extra vitamin D from vitamin D-fortified foods and/or supplements.

WEIGHT MANAGEMENT

Key Recommendations

To maintain body weight in a healthy range, balance calories from foods and beverages with calories expended.

To prevent gradual weight gain over time, make small decreases in food and beverage calories and increase physical activity.

Key Recommendations for Specific Population Groups

Those who need to lose weight.

Aim for a slow, steady weight loss by decreasing calorie intake while maintaining an adequate nutrient intake and increasing physical activity.

Overweight children.

Reduce the rate of body weight gain while allowing growth and development. Consult a healthcare provider before placing a child on a weight-reduction diet.

Pregnant women.

Ensure appropriate weight gain as specified by a healthcare provider.

Breastfeeding women.

Moderate weight reduction is safe and does not compromise weight gain of the nursing infant.

Overweight adults and overweight children with chronic diseases and/or on medication.

Consult a healthcare provider about weight loss strategies prior to starting a weight-reduction program to ensure appropriate management of other health conditions.

PHYSICAL ACTIVITY

Key Recommendations

Engage in regular physical activity and reduce sedentary activities to promote health, psychological well-being, and a healthy body weight.

To reduce the risk of chronic disease in adulthood: Engage in at least 30 minutes of moderate-intensity physical activity, above usual activity, at work or home on most days of the week.

For most people, greater health benefits can be obtained by engaging in physical activity of more vigorous intensity or longer duration.

To help manage body weight and prevent gradual, unhealthy body weight gain in adulthood: Engage in approximately 60 minutes of moderate- to vigorous-intensity activity on most days of the week while not exceeding calorie intake requirements.

To sustain weight loss in adulthood: Participate in at least 60 to 90 minutes of daily moderate-intensity physical activity while not exceeding calorie intake requirements. Some people may need to consult with a health care provider before participating in this level of activity.

Achieve physical fitness by including cardiovascular conditioning, stretching exercises for flexibility, and resistance exercises or calisthenics for muscle strength and endurance.

Key Recommendations for Specific Population Groups

Children and adolescents.

Engage in at least 60 minutes of physical activity on most, preferably all, days of the week.

Pregnant women.

In the absence of medical or obstetric complications, incorporate 30 minutes or more of moderate-intensity physical activity on most, if not all, days of the week. Avoid activities with a high risk of falling or abdominal trauma.

Breastfeeding women.

Be aware that neither acute nor regular exercise adversely affects the mother's ability to successfully breastfeed.

Older adults.

Participate in regular physical activity to reduce functional declines associated with aging and to achieve the other benefits of physical activity identified for all adults.

FOOD GROUPS TO ENCOURAGE

Key Recommendations

Consume a sufficient amount of fruits and vegetables while staying within energy needs. Two cups of fruit and 2 1/2 cups of vegetables per day are recommended for a reference 2,000-calorie intake, with higher or lower amounts depending on the calorie level.

Choose a variety of fruits and vegetables each day. In particular, select from all five vegetable subgroups (dark green, orange, legumes, starchy vegetables, and other vegetables) several times a week.

Consume three or more ounce-equivalents of whole-grain products per day, with the rest of the recommended grains coming from enriched or whole-grain products. In general, at least half the grains should come from whole grains.

Consume three cups per day of fat-free or low-fat milk or equivalent milk products.

Key Recommendations for Specific Population Groups

Children and adolescents.

Consume whole-grain products often; at least half the grains should be whole grains. Children two to eight years should consume two cups per day of fat-free or low-fat milk or equivalent mile products. Children nine years of age and older should consume three cups per day of fat-free or low-fat milk or equivalent milk products.

FATS

Key Recommendations

Consume less than 10 percent of calories from saturated fatty acids and less than 300 mg/day of cholesterol, and keep trans fatty acid consumption as low as possible.

Keep total fat intake between 20 to 35 percent of calories, with most fats coming from sources of polyunsaturated and monounsaturated fatty acids, such as fish, nuts and vegetable oils.

Key Recommendations for Specific Population Groups

Children and adolescents.

Keep total fat intake between 30 to 35 percent of calories for children 2 to 3 years of age and between 25 to 35 percent of calories for children and adolescents 4 to 18 years of age, with most fats coming from sources of polyunsaturated and monounsaturated fatty acids, such as fish, nuts and vegetable oils.

CARBOHYDRATES

Key Recommendations

Choose fiber-rich fruits, vegetables, and whole grains often.

Choose and prepare foods and beverages with little added sugars or caloric sweeteners. . . .

Reduce the incidence of dental caries by practicing good oral hygiene and consuming sugar- and starch-containing foods and beverages less frequently.

SODIUM AND POTASSIUM

Key Recommendations

Consume less than 2,300 mg (approximately) 1 tsp of salt) of sodium per day.

Choose and prepare foods with little salt. At the same time, consume potassium-rich foods, such as fruits and vegetables.

Key Recommendations for Specific Population Groups

Individuals with hypertension, blacks, and middle-aged and older adults.

Aim to consume no more that 1,500 mg of sodium per day, and meet the potassium recommendation (4,700 mg/day) with food.

ALCOHOLIC BEVERAGES

Key Recommendations

Those who choose to drink alcoholic beverages should do so sensibly and in moderation -- defined as the consumption of up to one drink per day for women and up to two drinks per day for men.

Alcoholic beverages should not be consumed by some individuals, including those who cannot restrict their alcohol intake, women of childbearing age who may become pregnant, pregnant and lactating women, children and adolescents, individuals taking medications that can interact with alcohol, and those with specific medical conditions.

Alcoholic beverages should be avoided by individuals engaging in activities that require attention, skill or coordination, such as driving or operating machinery.

FOOD SAFETY

Key Recommendations

To avoid microbial food borne illness:

Clean hands, food contact surfaces, and fruits and vegetables.

Meat and poultry should not be washed or rinsed. Separate raw, cooked, and ready-to-eat foods while shopping, preparing or storing foods.

Cook foods to a safe temperature to kill microorganisms.

Chill (refrigerate) perishable food promptly and defrost foods properly.

Avoid raw (unpasteurized) milk or any products made from unpasteurized milk, raw or partially cooked eggs, or foods containing raw eggs, raw or undercooked meat and poultry, unpasteurized juices, and raw sprouts.

Key Recommendations for Specific Population Groups

Infants and young children, pregnant women, older adults, and those who are immunocompromised.

Do not eat or drink raw (unpasteurized) milk or any products made from unpasteurized milk, raw or partially cooked eggs, or foods

containing raw eggs, raw or undercooked meat and poultry, raw or undercooked fish or shellfish, unpasteurized juices, and raw sprouts.

Pregnant women, older adults and those who are immunocompromised.

Only eat certain deli meats and frankfurters that have been reheated to steaming hot.

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