LEDA Home Page Harvard Law School LEDA at Harvard Law School




May 5, 2006

This paper is submitted in satisfaction of the Winter 2005 Food and Drug Law course requirement and the third year written work requirement.


This paper examines the child obesity epidemic that is gripping our nation, and explores various causes and treatments that may help to defeat child obesity. First there is a description of the obesity epidemic, its causal factors, and its consequences. Additionally there is a summary and critique of the FDA’s obesity report and recommendations. There is a description of drug treatments that are available for obese children and why more research is necessary to ensure the safety of drug treatments. The paper then explores various causal factors of the obesity epidemic and possible solutions. The paper stresses the need for parental education and awareness, and the role that schools can play, particularly regarding school lunches. This paper further explores fast food litigation, as well as the possibility that regulations on advertising and food labels can help combat the epidemic. Finally, this paper explores the way market incentives can be used to encourage corporations to take responsible actions to combat child obesity.


America is the fattest nation in the world.[1] Recognizing the severity of the problem, the National Institute of Health has labeled obesity a disease; in fact, it is an epidemic.[2] Obesity ranks second only to tobacco use as the largest contributor to mortality rates in the Unites States,[3] and it is poised to overtake tobacco as the leading cause of preventable deaths.[4] Specifically, over 100 million Americans, or over 60% of the adult population, are overweight.[5] Twenty percent of the population is classified as obese, or more than 20% above their ideal body weight, and the epidemic is growing at alarming rates.[6]

Explanations for the increase in obesity include larger portion sizes, more snacking, and decreased smoking. People eat more when they are offered larger portions.[7] People are snacking more; a recent study showed that the increase in calorie intake between 1977-78 and 1994-96 can be mostly explained by the increase in snacking.[8] Some point to social changes such as women entering the workforce, or that Americans eat outside of the home now more than ever.

Obesity is more than just being fat, it is a disease and carries with it health complications and risks. Obesity dramatically increases chances of contracting type 2 diabetes, heart disease, cancer, kidney disease, and other life-threatening conditions.[9]

Obesity rates are increasing fastest among children.[10] Government and private studies have consistently reached the conclusion that obesity among American children is escalating, while consumption of Recommended Daily Allowances of critical foods and nutrients is on the decline.[11] The percentage of overweight children ages 6 to 11 has tripled since the mid-1970s, and it has doubled for teenagers.[12] Sixteen percent of U.S. children, more than nine million kids, are seriously overweight.[13] Almost one-third of American kids are considered overweight, and nearly one in six is obese.[14] This is especially frightening because obesity in children means they will carry the risks of obesity-related diseases throughout their lives. The Surgeon General reports that obese children have an increased risk of diabetes, high cholesterol, and high blood pressure, diseases that traditionally only occur in adults.[15]

America needs to take action to combat child obesity. A real danger lies in becoming complacent. One of the most unsettling things about obesity is how quickly and accommodatingly Americans are settling into it. For instance, many young children are too heavy for standard car-safety seats, so manufacturers are starting to make heftier models to accommodate them.[16] Inadequate car seats for heavy children could put them at increased risk for injury in an accident, so ensuring child safety in vehicles by making car seats for heavy children is important. It is just disturbing that there is a real and growing market for products for overweight children. Some stores even offer plus sizes for children. In some ways, we are adjusting to a fatter nation, when we need to fight it.

Obesity can be treated in a variety of ways. The safest and most economically efficient way is to make lifestyle changes, and specifically, to reduce caloric intake and increase energy expenditure.[17] Also, but more costly, some overweight and obese persons can be treated with pharmaceuticals, although some may experience serious side effects in addition to any weight-loss results.[18] Finally, the most serious of cases can be treated using gastrointestinal surgery, which decreases the size of the stomach and thereby reduces caloric intake; however, it is costly.[19]

Many Americans attribute their weight problem to a lack of personal responsibility.[20] William Steigler, the George W. Bush administration’s special assistant to the secretary for International Affairs, recently said that personal responsibility is the key to fighting the obesity epidemic worldwide.[21] Most people are not as concerned about the obesity epidemic as they should be because they think that obese people somehow brought it upon themselves. As a society we need realize that we are dealing with a public health problem and recognize that there are many real and substantial costs associated with the obesity epidemic. We must also recognize that obesity is a disease that has many causes, including social and environmental factors. Most importantly, we need to recognize obesity as an epidemic and save our children from it.

“No nation is any healthier than its children.”

President Harry S. Truman, as he signed the National School Lunch Act into law.

Why are children fat?

Children are increasingly prone to becoming obese.[22] The percentage of kids who are overweight has tripled since the 1970s.[23] One in five teenagers is obese.[24] Societal changes and recent trends have lead to the increase in child obesity and overweight.

Genetics certainly factor into the problem, but they are not everything, and they do not explain the recent epidemic of overweight children. If both parents are obese, a child has a 66% chance of becoming obese.[25] There are genetic factors involved, but they are the starting point. There are environmental factors that can be controlled to combat obesity. Family is the most significant influence on a child’s life. Eating and exercise patterns are established in childhood.[26] While there is not much a parent can do about passing on genetic traits, there are environmental factors that are controllable.

Our nation’s dependence on the automobile contributes to the recent surges in obesity. Children now get rides everywhere. According to the CDC, today’s kids ride their bikes or walk between school and home only about thirteen percent of the time.[27] There are several justifiable reasons for this new trend. For one thing, parents perceive streets as too busy for their children to walk or ride bikes. Parents are also worried about unsafe neighborhoods or dangers that could happen to a child walking alone. In fact, evidence suggests that children from economically disadvantaged environments are particularly vulnerable to obesity.[28] On the other hand, suburban sprawl plays a role in the epidemic as well; many times it is unfeasible for children to walk to school because school is far away.[29]

Television is an especially troubling culprit. Not only is watching TV a sedentary activity that provides children with an opportunity to snack, but it subjects children to endless advertisements for fast food, junk food, soda, and candy. The average American child watches three to four-and-a-half hours of television every day.[30] Researchers have found that overweight children watched significantly more television than non-overweight children, and that the risk of being overweight was directly related to the number of hours of television per week that the children watched.[31] A 1996 study by researchers at Harvard and the CDC found that kids who watched more than five hours of TV each day were more than four times more likely than other kids to be overweight.[32]

Watching televisions provides an ideal opportunity for children to snack without being fully aware of what they are eating. Children snack more often than in the past, with snacks now accounting for 18% of the average child’s energy intake, or 50% more than in 1994.[33]

Also, much of a child’s time is devoted to sedentary activities, such as watching television. When they are not watching a television program, children are often playing video games, computer games, or surfing the internet. [34] This youngest generation may already be the most sedentary in history. Children need at least an hour of moderately vigorous physical activity daily, according to the National Association for Sport and Physical Education (NASPE); however, half of all U.S. children get less than thirty minutes of exercise a day.[35] One study showed that 20% of all children perform less than two hours of vigorous physical activity per week.[36] Studies show that 50% of adolescents stop exercising when they enter high school.[37]

Women entering the workforce, while wonderful for gender equality, changed the family dynamic. According to the 2000 census, dual-income families with children are now the majority of family units for the first time.[38] Socioeconomic changes within the family mean that both parents are more likely to work and to work longer hours than in the past, and diminish the percentage of parents who find time to prepare meals for their families.[39]

Changes in the family dynamics affect the family meal, which has a role in the obesity epidemic. Children who eat with their families consume more fruits and vegetables and less sweetened drinks, fried foods, and foods high in fat.[40] The biggest change in the American diet has been the move away from the home-cooked meal.[41] On average, food eaten outside of the home, such as in restaurants, contains more fat and fewer nutrients than food cooked at home; Americans are eating out more than ever [42] More problematically, Americans tend to underestimate the caloric content of restaurant food by approximately 55%.[43]

Children’s diets are changing as well. The majority of children’s diets are high in added sugars.[44] Such a trend is alarming and likely offers an explanation for escalating obesity rates, given that children’s consumption of calories appears to come from added sugars, rather than from non-saturated fats, grains, fruits, or vegetables.[45]

Global Problem

While America is doing its part to lead as the fattest nation, the rest of the world is growing fatter as well, as evidenced by child obesity statistics worldwide. The International Obesity Task Force reported that one in ten children worldwide is overweight, for a total of 155 million children, with 30 million to 45 million of them classified as obese.[46] According to the IOTF, roughly 15% of ten-year-olds in the United Kingdom and 30% of ten-year-olds in Munich, Germany are overweight.[47] A recent study by Harvard researchers showed an upsurge in child obesity in Beijing and other Chinese cities during the last fifteen years.[48] One explanation for the increasing rates of obesity across the world is a global trend of moving from farms, villages, and small towns to big cities, and all the processed foods they have to offer.[49] Whatever the causal factors are for the global obesity problems, as child obesity spreads across the planet, the personal responsibility and weakness explanation loses weight.

Consequences of the Epidemic

Parents and children do not understand the health consequences of overweight children and child obesity. It can take years before the harm caused by obesity begins to appear. Although, alarmingly, some obese children have begun to suffer from health conditions that have traditionally occurred only in adults.[50] For example, risk factors for heart disease, such as high cholesterol and high blood pressure, occur with increased frequency in overweight children and adolescents compared to those with a healthy weight.[51]

One of the more frightening health consequences of child obesity is the prevalence of type 2 diabetes. This disorder used to be called “adult-onset diabetes”, and was brought on by age, inactivity, and excess weight.[52] Now, the frequency of type 2 diabetes in children parallels the rise in child obesity and is one of the most significant long-term consequences of childhood obesity.[53] In fact, type 2 diabetes for children accounts for 25% to 30% of all new cases of this diabetes.[54]

Type 2 diabetes can be triggered by an excess of ten pounds.[55] The incidence of type 2 diabetes has risen by 33% over the past ten years.[56] That Americans are contracting type 2 diabetes, and similar obesity-related diseases, at earlier ages is frightening and adversely affects their long-term health outlook.[57] The incidence of juvenile diabetes has increased tenfold over the past twenty years, and one in three U.S. children born in 2000 will likely become diabetic in their lifetime.[58]

All hope is not lost for obese and overweight children. Even modest weight loss (5% of body weight) can reverse insulin resistance if it is done before the pancreas burns out.[59] However, once a child is at risk for type 2 diabetes, they are more susceptible to insulin resistance if their weight increases again, which makes permanent changes in life style and commitments to good health that much more important.[60]

The potential complications of type 2 diabetes are severe and include increased risk of cardiovascular disease, heart attack and stroke; damage to blood vessels and nerves; loss of eyesight, fatty liver disease and kidney problems.[61] In fact, the American Diabetes Association reports that 10% to 21% of all people with diabetes eventually develop kidney disease.[62]

Overweight and obese children are vulnerable to a variety of serious cardiovascular risks, including high blood pressure, high cholesterol, coronary artery disease, and congestive heart failure.[63] An estimated 50 million children have high levels of cholesterol and run the risk of future heart disease and stroke; early intervention is necessary to avoid the onset of cardiovascular disease.[64] The research on high blood pressure in overweight children is similarly distressing. In elementary school children, studies have shown that 20% to 30% of obese five to eleven-year-olds have an elevated systolic or diastolic blood pressure.[65] There have been cases of elevated blood pressure in obese children as young as two years of age.[66]

While there have been recent indications that some of the side effects of high blood pressure are already causing organ damage in obese children, the majority of research shows that early intervention can prevent, and to a large extent reverse, damage caused by obesity.[67] Improvements in diet and exercise that induce weight loss are the keys to overcoming the cardiovascular risks caused by obesity.

Psychological Consequences

The health consequences of the child obesity epidemic are not completely known, and may not reveal themselves completely for years down the road. On the other hand, the most immediate consequence of being overweight, as perceived by children themselves, is social discrimination.[68] Overweight children are not concerned about heart disease, diabetes, or cancer; they are worried about being teased, bullied, and fitting in.

One of the many potentially damaging consequences of child obesity is low self esteem. A study found that 91% of overweight children felt ashamed of being fat, 90% said peer teasing would stop if they lost weight, and 69% thought that they would have more friends if they were thinner.[69] Obesity is not taken seriously as a disease, even by most adults. The pressure to be thin in this society is enormous, and children perceive this even at very young ages.[70] Childhood and adolescence is a very sensitive time, and child obesity necessarily effects a child’s social interaction and relationship development.[71]

The stigma of being overweight is as apparent in childhood as in adulthood. Most people believe that fat people could be thin if they had enough will power or self control.[72] Overweight children and adolescents with decreased levels of self-esteem reported increased rates of loneliness, sadness, and nervousness, and were more likely to smoke and consume alcohol.[73] The likelihood of a severely obese child or adolescent having impaired, health-related quality of life was 5.5 times greater than a healthy child or adolescent, and similar to a child diagnosed as having cancer.[74] In fact, a recent study found that overweight kids have a worse quality of life than young cancer patients.[75]

Future Effects

Sixty percent of the U.S. population is overweight or obese and the population of obese children is growing.[76] The probability of childhood overweight persisting into adulthood increases from approximately 20% at 4 years of age to between 40% and 80% by adolescence.[77] This means that many children are growing up carrying with them the health consequences of overweight and obesity and increased risk of disease. More frightening is that they will suffer from these diseases during what should be the prime of their life. Some predict that many children diagnosed with type 2 diabetes today will start to suffer the worst of its complications in their twenties or thirties.[78] That means that they can anticipate kidney failure, heart disease, blindness, and amputations at the point when they are launching a career or starting a family.[79]

In addition to adverse health effects, the obesity epidemic is costing Americans billions of dollars in health care.[80] Estimates of the direct and indirect costs of caring for overweight and obese people are approximately $157 billion per year.[81] As the epidemic spreads and obesity continues to grow, so will these costs.

Because of this epidemic, this generation of children may have shorter life expectancy than the current generation of adults.[82] The U.S. life span has been steadily increasing, but increasing child obesity rates may mean that life expectancy will level off or get shorter in the coming years.[83] The increasing child obesity rates mean dramatic increases in the risk of type 2 diabetes, heart disease, cancer, kidney disease, and other life-threatening conditions.[84] A recent study found that a twenty-year-old who is very overweight may expect to live thirteen fewer years than someone the same age with a normal weight.[85]

In short, we have created a culture with a penchant for fast, high-calorie food and super-sized portions, along with a precipitous decline in exercise for a variety of reasons. The Surgeon General states that “left unabated, overweight and obesity may soon cause as much preventable disease and death as cigarette smoking.”[86] More so than any other age groups, children are prone to take risks, weigh short-term consequences more heavily than long-term consequences, and uncritically ascribe to advice or suggestion.[87] Children in particular need protection from this culture.

The key to defeating child obesity is recognizing and accepting that there is no one cause at which to point blame just as there is not one magic solution that is going to fix the problem. There are many ways of combating child obesity, and they are all valuable and necessary.


Government and public agencies recognize the escalating problem of obesity in America and the urgent need to do something about it. In 2003, the FDA created the Obesity Working Group (OWG) to outline an action plan to cover critical dimensions of the obesity problem from the FDA’s perspectives and authorities.[88] The group created a plan of action based on a “calories count” idea, that weight control is a function of balancing intake of calories eaten and calories expended on physical and metabolic activity.[89] Based on this idea, the group came up with recommended actions the FDA can take to combat obesity.

In terms of food labeling, the OWG emphasized giving calories more prominence on the food label by increasing the font size, including a percent Daily Value (%DV) column for total calories, and eliminating the listing for calories from fat.[90] Serving sizes also tend to be confusing for consumers; the group recommends encouraging manufacturers to label as a single-serving food packages where the entire content of the package can be reasonably consumed at a single-eating occasion.[91] The report also looked at carbohydrates, and recommended providing guidance for use of the term “net” in relation to the carbohydrate content of food.[92] Another recommendation was to encourage manufacturers to use appropriate comparative labeling statements that make it easier for consumers to make healthy substitutions, including calories.[93]

The OWG recommended that the FDA, with the Federal Trade Commission (FTC), increase enforcement against weight loss products having false or misleading claims.[94] Also in terms of enforcement, the FDA should consider enforcement action against products that declare inaccurate serving sizes.[95]

The group recommended that the FDA establish relationships with youth oriented organizations to educate Americans about obesity and leading healthier lives through better nutrition.[96] The FDA should also urge the restaurant industry to launch a nation-wide, voluntary, and point-of-sale nutrition campaign for consumers.[97]

Addressing the use of therapeutics, the OWG recommended that a standing FDA advisory committee convene to address challenges, as well as gaps in knowledge, about existing drug therapies for the treatment of obesity.[98] They also recommended that the FDA revise 1996 draft guidance on developing obesity drugs.[99] The FDA should support and collaborate on obesity-related research with others, including the NIH.[100] With the USDA and Agricultural Research Service (ARH), the FDA should pursue research on obesity prevention.[101]

These carefully considered steps are ways that the FDA is attempting to combat the obesity problem; however, these alone are not going to solve it. More aggressive steps from other actors are necessary in successfully fighting this epidemic. The focus on balancing calories is a positive way to grasp onto a solution to the problem. Weight as a function of calories taken in and calories expended is easy to understand and employ in weight loss goals.

Recognizing that there are “gaps in knowledge” regarding drug therapies and the need to fill them is a positive step in combating obesity, especially when dealing with child obesity. Drug therapies may prove to be a critical tool in curbing the obesity epidemic, but there are many unknowns that such courses of action implicate. The FDA’s role in approving and monitoring any drug therapies to treat or combat obesity should be carefully considered, which the group seems to acknowledge.

The FDA is under-resourced and cannot entirely overcome the obesity epidemic on its own. The OWG’s recommendations acknowledge the importance of working with other agencies as well as the restaurant industry and youth relevant organizations. The report focuses on what the FDA can control, and clearly needs to improve upon, which is food labeling, especially in terms of serving sizes and comparative labeling statements. In keeping with the “calories count” theme, the group stressed the importance of making calorie information more prominent, more accurate, and more available to consumers through labels. The educational partnerships area exemplifies where the report is lacking. The group recognizes the importance of working with youth-oriented groups to raise awareness and education, but the report largely ignores the function and role of schools, both in actuality and in potential.


Few, if any, guidelines exist for using medications in treating child obesity.[102] The general consensus is that a child with a Body Mass Index (BMI) greater than the 95th percentile for age and sex with obesity-related medical complications that may be corrected or improved through weight reduction should be considered for intensive weight loss regimens, including medications.[103] show.htm?doc_id=355783. There are many gaps to what available drug therapies can do for obese children. For example, the medical and pharmaceutical world has not created a prescription drug that can treat obesity-associated dyslipidemia (hypertension in children).[104]

The FDA has approved sibutramine (Meridia) for weight loss and maintenance in conjunction with reduced calorie intake for adolescents older than sixteen.[105] Sibutramine is an appetite suppressant and works by affecting the area in the brain that controls hunger, providing a sense of fullness and satisfaction.[106] http://www.webmd.com/drugs/drug-5405-Sibutramine.aspx?drugid=5405&drugname=Sibutramine In a trial using sibutramine to treat obese adolescents, including sibutramine as part of a comprehensive behavioral program resulted in greater weight loss in obese adolescents than traditional behavioral treatment alone; however, the weight loss plateaued after six months of therapy.[107] The most problematic aspect of using drugs such as sibutramine to combat obesity in children is the side effects. The trial revealed serious side effects such as hypertension and tachycardia (rapid heart beat) in nineteen out of forty-three adolescents.[108] In five, the drug dose had to be reduced or discontinued.[109] Another study examined the efficacy and safety of sibutramine in a six month, double-blind, placebo-controlled trial in sixty obese adolescents. [110] This study did not show the same serious side effects as the other study; it did not find clinically significant changes in blood pressure.[111]

Orlistat, or Xenical, is a drug approved by the FDA for use in children older than age twelve.[112] Orlistat decreases nutrient absorption and cuts intestinal fat absorption by up to thirty percent.[113] A placebo-controlled study on orlistat in obese adolescents found that those that used orlistat lost weight and had significantly greater reductions in BMI and body fat than those given the placebo, but the body weight loss was small (5 percent).[114]

The third type of drugs used in treating obesity is not aimed at controlling weight but targets insulin resistance to reduce the metabolic complications associated with obesity.[115] Metformin, for example, is used in treating type 2 diabetes and is approved for adolescents.[116] Two small studies have used metformin in a randomized trial in obese adolescents; both found small but statistically significant effects on BMI and significant effects on fasting blood sugar, insulin, and lipids.[117]

The potential dangers of side effects of using drugs like sibutramine on children are troubling. These studies concluded that sibutramine should be used for weight loss in adolescents only on an experimental basis until there is more extensive knowledge of efficacy and safety.[118]

There is a genetic component to body weight, and some children are genetically predisposed to struggle with weight.[119] It is suggested that 5 percent of cases of severe obesity in children younger than ten are due to genetic mutations. In these cases, using drugs can likely contribute to an effective approach to combating obesity and maintaining a healthy weight.[120] The FDA should explore the possibility that these adolescents could really benefit from drugs.

Gastric banding surgery involves wrapping a silicone band around the upper part of the stomach to create a pouch, narrowing the passage to the rest of the digestive system.[121] Unlike gastric bypass surgery, gastric banding does not permanently alter the stomach and can be adjusted.[122] The FDA has only approved Lap-Band for adults, but they are available off-label for younger patients, meaning surgeons may opt to use the device in some teenagers and adolescents based on the patient’s condition and their own clinical experience.[123] The pool of candidates is growing.[124] Even if using weight-loss surgery to treat obesity in children, there are still mental aspects that need to be addressed and treated. There needs to be a commitment to changing eating habits and regularly exercising. The emotional aspects of eating are not going to go away magically even if the weight does. Adolescence is already a tough phase of life, so it is especially important that the emotional needs of overweight or obese children are met.


Parental awareness is essential to inducing action and battling the child obesity epidemic. Most parents of overweight children do not consider them to be overweight.[125] A study of obese African-American children revealed the many parents neither perceived their children as very overweight nor felt that weight was a health problem for their child.[126] It is imperative to raise awareness of the epidemic and stress the importance of taking action. Most of the children referred to specialists had developed obesity in their preschool years, when preventative measures are likely to be most effective.[127]

Parents also underestimate the amount of calories and poor nutritional content of foods they serve their children. An obvious question regarding the link between fast food consumption and poor health pertains to consumer awareness of the food’s content, and whether the consumer knowingly chooses to consume relatively unhealthy food.[128] For the most part, children are not going to have complete awareness of the nutritional content of foods, so the parents’ responsibility in knowing this information is particularly important. Americans tend to underestimate the caloric content of restaurant food by approximately 55%.[129]

Parents need to encourage and facilitate more physical activity in their children. Children are less active then previous generations. Parents tend to perceive this trend, as 33% of parents find that their children exercise less than they did at the same age.[130] Recognizing the lack of physical activity in children is a positive first step, but it is fruitless without parents committing to encourage physical activity, whether it is setting rules or taking their children outside to play.

Pediatricians also need to take a more active role. A 1997 Michigan State university study found that between 1997 and 2000 excessive weight was identified in less than one percent of children visiting a doctor’s office or urgent care center, while sixteen percent of the nation’s kids are overweight.[131] The study also revealed that only seven percent of obese kids actually receive a diagnosis of obesity.[132] This seems like a gross act of oversight on the part of pediatricians.

An explanation for doctors not playing a more active role in fighting obesity is revealed in a 2002 study that found that although surveyed doctors believed overweight children and teens should be treated, they did not feel that they had the skills to counsel kids effectively or to manage their treatment. This logically leads to two conclusions – either give pediatricians the skills they feel is necessary to be comfortable effectively treating obese children or emphasize the importance of diagnosing and referring obese or overweight children to those that can effectively counsel them. Being overweight is an extremely sensitive issue, especially when dealing with emotionally fragile adolescents. Doctors should make an effort to at least diagnose and address the problem, and if they are uncomfortable going further, recommend further consultation with nutrionists and counselors that can help with treatment. Additionally, in treating overweight children, pediatricians, parents, and patients must realize that the goal of treatment is not the initial weight loss alone, but also weight management to achieve the best possible weight for improved health.[133]

Parents are in the best position to make a difference. The food preferences of adults are predominantly shaped by their eating habits as children.[134] Parents have more control over a child’s weight than anyone else in that child’s life, including doctors, nutritionists, friends, and even the child.[135] Parents are the ones that buy the groceries, prepare the meals, and set the rules. A 1990 study in the Journal of the American Medical Association put children and their parents through three educational programs, but only one involved both parents and children.[136] Ten years later the group that involved parents and children dropped eight percent in proportion of children overweight; the obesity rates climbed in the other two groups.[137] Doctors used to focus on educating the child about how to lose weight, but this study revealed that it is actually more effective to educate parents as well.[138]

Another study conducted in 2004 reveals the power parents have to influencing childhood weight loss.[139] This study involved sixty overweight children.[140] Half of the children attended thirty classes on diet and exercise; the other half stayed home while their parents attended fourteen classes on encouraging children to eat well and stay active.[141] After one year, both groups lost weight but the children of the parents who attended class lost significantly more weight.[142] Three years later the children that attended class were more overweight than before, and the kids who stayed home had lost even more weight.[143] These studies show that when parents are committed to creating a healthy environment, children can lose weight and keep it off.


Congress passed the Nutrition Labeling and Education Act of 1990 (NLEA) to clarify and strengthen the FDA legal authority to require nutritional labeling on food.[144] The NLEA requires that food manufacturers provide nutritional labels for most food items sold in retail food stores.[145] The FDA issued labeling regulations regarding when a food label could use “light,” “low-calorie,” and “low-fat” to describe a product. Also, the regulations require that food manufacturers place the “Nutrition Facts” graphic on the labels of all processed foods.

Restaurants and Labeling

Restaurants are largely exempt from NLEA, and are fully absolved of the general nutritional labeling standards and requirements.[146] The federal government has exempted all restaurants from food labeling requirements.[147] No state government has yet to impose labeling requirements.[148] Unless restaurants affirmatively champion their food’s healthy nature, the NLEA does not impose a legal obligation to reveal their dishes’ fat and caloric content.[149]

In 1993, criticism of the NLEA’s lack of regulation of restaurants, specifically the fast food industry, escalated as a number of fast food companies added “low-fat” or “healthy” dishes to menus without demonstrating why those items were so healthy.[150] The FDA promulgated new regulations to require that those purportedly “healthy” items meet some, though not all, of the nutrition labeling requirements imposed on food sold grocery stores.[151]

Despite this increased scrutiny of restaurants, the FDA acknowledged that “unlike processed foods, menu items bearing a claim are not held to the same strict standards of laboratory analyses”.[152] Initially under the NLEA, health claims for non-restaurant foods and dietary supplements required FDA pre-market approval.[153] The Food and Drug Administration Modernization Act of 1997 (FDAMA) removed the requirement of FDA approval, but it still mandated that claims for non-restaurant food be derived from “authoritative statements” of a scientific body. Restaurants, however, could rely on a recipe from any “recognizable health professional association” to establish their healthy menu items.

Restaurants are also largely exempt from revealing their foods’ nutritional information. As per the 1993 regulations, the FDA required only “reasonableness” on the part of restaurants when informing customers of their dishes’ content.[154] This does not require restaurants to make the “Nutrition Facts” available as required on packaged food labels.[155] The FDA has stated that restaurants should be able to make their own determinations as to the explanation of an item’s nutrition.[156] Under the current regulation scheme, if a restaurant menu item does not advocate a promotion of good health, the restaurant bears no obligation to divulge that item’s nutritional content, even upon customer request.[157]

The absence of nutritional disclosure for restaurant items may delude a more health-conscious person into selecting the wrong item.[158] For example, a Burger King customer may select a veggie burger off the menu rather than a hamburger under the illusion that it is a healthier choice, absent the knowledge that Burger King’s veggie burger actually contains four more grams of fat than a hamburger.[159] Armed with this information, the customer can make a rational decision about which is a healthier choice.

Why are the requirements of restaurants so flexible? The restaurant industry points out that it is often infeasible to provide nutritional information.[160] For one thing, menu items can often fluctuate in size and caloric content depending on the availability of ingredients and other factors.[161] Smaller, non-chain restaurants often vary chefs, cooking styles, and have other inconsistencies that make it difficult to assess the nutritional content of their food dishes.

The restaurant industry, in its opposition to divulging nutritional information, has effectively lobbied Congress.[162] The industry also often argues that the costs involved in menu modification, necessary if labeling requirements are imposed, increase the cost of doing business.[163] These necessary changes would largely be sunk costs of compliance, however, and menus are often modified for business reasons. Also, menus are limited in size, so restaurants argue that nutritional information would be difficult to display. Alternatives to including all nutritional information on the menu would be to post such information on tables or on cartons of food.[164] If nutritional information is posted on cartons of packaged foods, it is conceivable that the nutritional information would not be available until after the point of sale, so it would not aid in the decision-making process.[165] Even if this were the case, at least the nutritional information would be available at some point, which will aid in future decisions, and is better than not providing the nutritional information at all.

A way that restaurants are making the nutritional content of their foods available is through the internet. Some fast food and chain restaurants now post nutritional information on their websites.[166] While this does disseminate nutritional information on a fairly wide basis, 42% of Americans remain without internet access.[167] Those with modest amounts of income and education are those most in need to nutritional information, and the most likely to be without internet access.[168] Also, a criticism of these websites is that while the nutritional content of food items is listed, they often do not provide the daily nutritional percentage that such content comprises, so there is no context provided with which to gauge the nutritional quality of the food.[169]

The fast food industry is in a particular position to fairly easily provide nutritional information, since its items are standardized, and it prides itself on providing the same product at all stores.[170] Therefore, the nutritional content of menu items is less likely to fluctuate than in smaller, independent restaurants. Keeping information, such as a list of ingredients, unavailable is appealing because these companies want to protect creations and prevent copies.[171] However, even Coca-Cola, with its infamous secret formula, complies with NLEA’s labeling requirements for packaged foods, so any such requirements on the restaurant industry should not impose an undue burden.

Americans spend nearly fifty percent of their food “dollar” eating outside the home.[172] So while NLEA requires nutritional content labeling on grocery contents, in half of what Americans eat they are unaware of the nutritional content. This is especially problematic given that Americans regularly underestimate the amount of calories in food they order in restaurants.[173]

Eating out, and not just at fast food restaurants, adds to the nation’s obesity problem. Many restaurants offer children’s menus. Children’s menus tend to offer foods that appeal to kids, but have little nutritional value and lots of calories. For example, the grilled cheese sandwich and fries on the children’s menu at Applebee’s, a popular chain restaurant, has 900 calories and more saturated and trans fat than a child should eat in an entire day.[174] The other options on the Applebee’s children’s menu are chicken fingers, cheeseburger, corn dog, and macaroni and cheese, all with a side of fries.[175] While these are foods generally appealing to small children, noticeably absent are fruits or vegetables.

One solution to the restaurant labeling dilemma is facilitating voluntary agreements with restaurants to entice them to make nutritional content available.[176] A benefit to this alternative to legislation is that it entails negotiation and enables companies to directly participate in the process. Also, as in voluntary agreements between government and environmental polluters, FDA and government administration and monitoring costs can be reduced because such agreements are partly self-monitored by participating companies.[177] The problem with this scheme is that these agreements are by definition voluntary, and so there is not a direct means for enforcement. Also, voluntary agreements must involve widespread market participation to create a significant benefit to consumers. However, encouraging and enabling these voluntary agreements can lead to greater support for changes in public policy. For example, New York pursued voluntary agreements with fast food companies to reveal nutritional content of food items.[178] After New York City created such an agreement with Burger King to display nutritional posters, the Fast Food Ingredient Disclosure Ordinance of 1991 was proposed, and if passed would have been the first law in the country to mandate the furnishing of nutritional information for fast food items.[179] Although it was not passed, it at least raised awareness and discussion of the obesity problem, and presented a possible solution through nutritional labeling of fast food restaurant fare.

Portion Sizes and Serving Sizes

Increased portion sizes play a significant role in the obesity epidemic, and food labels can address this area. A portion size is the amount of food you choose to eat. Serving sizes are a standard measurement that tells you how much you should eat and identities how many calories and nutrients are in one serving a particular food.[180] In the past few years, portion sizes have increased while standard serving sizes on food labels have remained unchanged.[181]

Portion sizes for foods such as salty snacks, soft drinks, french fries, cheeseburgers, and Mexican food all increased dramatically between 1977 and 1998, according to a USDA survey.[182] Nowhere is portion inflation more apparent than in restaurant servings, which use increased portion sizes as a value marketing strategy.[183] Value marketing has also inflated the size of sodas.[184] Many restaurants offer free refills of soda, sneaking in more calories where a consumer may not contemplate.

Studies on portion sizes show that most people will eat more when offered more, regardless of how full they feel during the meal.[185] Current portion sizes are also recognized as a problem for school-aged children who participate in the National School Lunch Program.[186]

Perhaps the most controversial part of the Nutrition Facts graphic is the serving size, which is supposed to facilitate making nutritional comparisons of similar products.[187] The NLEA defines serving size as “the amount of food customarily eaten at one time”.[188] Serving sizes for various categories of food products are determined by FDA regulation in what are called “reference amounts”.[189] A reevaluation of existing reference amounts to determine whether they continue to represent amounts customarily consumed could aid consumers in controlling calorie intake. The current reference amounts are based on data obtained through 1977-78 and 1987-88 Nationwide Food Consumption Surveys conducted by the USDA.[190]

Recent empirical evidence indicates that the amount of food Americans consume today has increased.[191] If portion sizes have dramatically increased and standard serving sizes on nutritional labels have remained the same, consumers may underestimate the amount of calories and other nutrients that they eat. Since the FDA has decided to focus on calories as a way to fight obesity, making adjustments to the serving sizes to make them more accurate is a way to help consumers make food choices.[192]

Regulations give manufacturers serving sizes for particular products or food categories.[193] However, similar food products are sometimes allotted disparate serving sizes, making nutritional comparisons challenging.[194] Even identical products in different sizes create problems of perception. A twelve-ounce bottle of Coca-Cola has 140 calories and is considered a single serving, while a twenty-ounce bottle of Coca-Cola contains 330 calories and lists 100 calories as a single serving.[195] These discrepancies make it harder for some observers to understand differences in serving size between similar or identical products, and may end up consuming more calories than desired.

Current food labeling rules prohibit comparisons across food groups.[196] Labeling is also restricted as to comparisons based on reduced portion size; comparisons must be made between standard serving sizes.[197] While this likely works to protect against confusing or misleading comparisons made for advertising purposes, comparing across food groups or serving size may actually benefit consumers given the role of increasing portion sizes in the obesity epidemic. The FDA and other government actors should consider whether these food labeling regulation restrictions can be adjusted to allow useful information to assist consumers in making better choices about their diet and caloric intake.

Improving food labels will aid parents in making food decisions for their children. Parents tend to markedly underestimate the daily caloric intake of their children, most often in the absence of nutritional labeling.[198] In making meal decisions, a typical parent would likely be affected by mistaken assumptions about a food’s nutritional content, because in that consumption decision, the parent prioritizes nutrition ahead of both taste and price, and internalizes a diminished toleration of risk.[199] Making nutritional information more available and clear helps this process along.

The restaurant industry, particularly fast food which has been the most publicly attacked for contributing to America’s obesity problem, defend itself under the idea that restaurants cannot be held responsible for the poor choices of its customers.[200] If restaurants are going to stand behind and advocate consumer choice, then they should be willing to offer up as much relevant information as available to the consumer to make those choices.

Since the FDA is advocating a “calories count” theme to combating obesity, the FDA should consider changes in the current food labeling regulations that would assist consumers control calories. Current regulations impose a 25% threshold for reduced-calorie claims, and prohibit such claims for foods that are already low in calories.[201] The average consumer likely is unaware of these rules. Relaxing these regulations additionally provide food corporations and producers market incentives to reduce calories in products even by small amounts. Small calorie reductions can be nutritionally significant, as even modest daily changes have a substantial impact on weight over several weeks or months.[202]

Overall, making these kinds of changes should not hurt the consumer if done in a way that is not misleading. As food companies create lower calorie, healthier options for consumers, they should be able to communicate these improvements to the consumer. At the same time, the FTC and FDA need to police the marketplace to ensure that any nutritional information or claims conveyed to consumers are accurate and not misleading. The policy reasons for having restrictions on labels are to protect the consumer from misleading or deceiving labels. As long as the FDA and the FTC aggressively work to keep labels from misleading consumers, more and accurate information should ultimately benefit consumers and allow them to make informed and better decisions.

Whatever flaws are implicit in the current nutritional labeling format, consumer choice is enhanced by observation of nutritional content.[203] An imperfect format is better than no format providing nutritional information. Taking action to improve upon the current format and enhance its effectiveness will make it all that much better, and increase consumers making rational choices pertaining to nutrition and health.


It is ironic, and sad, when schools teach nutrition and health in the classroom and offer unhealthy foods in the cafeteria. The reality is that schools are failing at promoting nutritional values and well-being when they are in an excellent position to influence the health of children. Schools consistently offer foods to students that are high in calories with little or no nutritional value, and ignore the consequences on children’s health. Expanding the number and variety of healthy food choices increases the likelihood that students will select them. Students are in school five days a week for at least one meal per day. Schools have the opportunity, and the responsibility, to make an enormous impact in the fight against child obesity.

The Study Center for Science in the Public Interest surveyed 200 schools and found that 75% of the drinks and 85% of the snacks offered to children have poor nutritional value.[204] More than 76% percent of schools sell soft drinks and sweetened fruit drinks, but fewer than half offer bottled water.[205] Fewer than 15% of schools sell low-fat or nonfat yogurt, and less than one-third order skim milk.[206] Only 25% of schools report reducing fats or oils in recipes.[207]

School Lunches

When school lunchrooms or cafeterias do not provide healthy and appealing food choices, that is a failure of a community responsibility. Changing school nutritional policies provides an easy way to attack the problem of child obesity. There are many facets of the child obesity epidemic, but few straightforward ways to attack it; policies regarding school lunches offer one such way. If school lunches are contributing to childhood overweight, making lunches healthier has the potential to impact a large number of children across socioeconomic status, race, and geography boundaries.[208] Also, the federal government spends over $6 billion per year on the National School Lunch Program, so it wields a lot of power over what children eat school, if it chooses to.[209]

The National School Lunch Program (NLSP) is run by the USDA and supplies free or reduced-price lunches to more than 30 million students daily, 60% of the total population.[210] It is the number one provider of away-from-home meals for younger children and adolescents. The original idea was to provide food groups (meat, bread, vegetables, fruits, and milk) with amounts sufficient to provide one-third of the recommended daily allowance (RDA) of key nutrients.[211] The problem with the program is that while these lunches meet these (minimal) nutrient requirements, they are also high in fat and calories. Overall, 16% of all children do not meet any of the nutrient requirements specified in the recommended daily allowance.[212] Research on the NSLP found that participants consume more vitamins and minerals at lunch than non-participants, and those participants also consume more calories in a typical day than non-participants, with the additional calories consumed at lunch.[213]

A study conducted by Diane Whitmore Schanzenbach followed kindergarteners that started school with the same risk of obesity.[214] Factoring in confounding variables, Whitmore concluded that children who eat a NSLP lunch for two school years are about 2 percentage points more likely to be obese than children that brought lunch from home.[215] The study found that on average, students eating a school lunch consume an extra 40 calories per day, all at lunch.[216] Holding all else constant, that increase could account for the observed weight gain.[217] Another study using a nationally representative survey collected by the USDA found that school lunch participants consume an extra 120 calories per day than students that bring lunch from home, after controlling for demographic characteristics.[218] If first-graders consume an additional 40 calories a day, the rate of overweight increases by 1.7 percentage points.[219] If the number of additional calories from eating a school lunch is closer to 120, the difference in obesity rates could be as high as 7 percentage points between kids that eat school lunch or bring lunch from home.[220] These studies show that changes in school lunches and making them healthier has the potential to make a real impact in the child obesity problem.

In 1995, after research showed that many school lunches failed to meet nutrition requirements, Congress passed the “School Meals Initiative for Healthy Children.”[221] This new policy required food served to meet one-third of the child recommended daily allowance (RDA) of calories, protein, calcium, iron, and vitamins A and C, and for no more than 30% of calories to come from fat.[222] Also, schools were to restrict foods of “minimum nutritional value”, such as soda.[223]

One problem is that many school districts struggle financially, and soda companies offer contracts or fast food companies come in and cut costs. Schools need to take a stand against such contracts and look for innovative ways to raise money without using soda or candy sales, or offering fast food for lunch. A national study found that the number of exclusive marketing contracts between corporations and schools increased thirteen-fold in the 1990s.[224] Coca-Cola was the leader with 6,000 contracts in the nation’s more than 14,000 public school districts.[225]

A recent and troubling trend is for fast food restaurants to sell their products in schools. Fast-food chains such as Pizza Hut, Taco Bell, Subway, Chick-fil-A, McDonald’s, and Arby’s sell their food products in school cafeterias, and schools mark up the prices 50% to 100%.[226] This practice raises much needed money for schools, especially ones facing budget cuts and constraints. Nationally, nearly 20% of schools offer branded foods to their students.[227] Although federal dietary standards control school lunch programs, fast food items are typically sold separately and fall outside the scope of nutritional regulations.[228] Also, as a la carte sales increase in schools, participation in NSLP decreases, and the dietary standards that come with it.[229]

Providing fast food options on school campuses represents conflicts of interests for children’s health. These foods are likely better tasting and more appealing to students than the traditional USDA approved cafeteria lunch options. They are also likely less healthy. It is estimated that more than half of students in those schools opt for fast food rather then either cafeteria lunches or lunches brought from home.[230]

While the federal government controls the nutrient and fat content in the regular school lunch, a la carte items, such as fast-food chain items, are not subject to the same regulations.[231] Schools are required to follow the USDA’s Dietary Guidelines for the school lunch program, but are not required to use those standards for foods sold a la carte, foods sold in snack bars, and foods from vending machines.[232] Federal regulations of competitive foods in schools will benefit children’s health immensely, but there is not a national policy. Countries such as Sweden, Norway, and other European nations have a national school nutrition policy.[233]

States can also regulate the presence of competitive foods in schools. The state of Florida had a strict competitive foods policy until 1999, when Governor Jeb Bush’s administration rescinded it under the notions that local control is best and kids should be able to make up their own minds about what they eat in school.[234] Other states and school districts are taking responsibility for the nutritional content of foods offered in schools. In 2003, the California State Senate passed the first bill in the nation banning the sale of soft drinks to elementary, intermediate, and middle schools.[235]

Oakland, California was the first school district to ban junk food in vending machines in January 2002, a move which cost them an estimated $650,000 annually in lost revenues.[236] While such financial and economic costs may seem daunting, more school districts need to realize their role in the obesity epidemic and take responsibility for it. In 2004, Chicago Public Schools banned vending machines in elementary and middle schools, and additionally imposed a requirement that snacks sold in vending machines in high schools meet reasonably stringent nutritional standards.[237] Steps such as these are important because they do not take snack options away from children, but offer healthful alternatives, at least for the time spent at school.

New York City has been particularly aggressive in changing the way children eat at school. The state of New York has one of the highest rates of childhood obesity, as 20% of the state’s children ages six to nineteen are overweight.[238] New York City school district, the largest in the nation, recognized the problem and adopted new regulations to address it. In 2004, the school district hired an executive chef, Jorge Leon Collazo, to implement a program that is aimed at curbing child obesity and improving nutrition for the city’s 1.1 million schoolchildren.[239] The new chef revamped the menus, lowering fat, sugar, and salt in recipes, increasing whole grain breads, pastas and cereals, and eliminating some products containing trans fat.[240] One particular change made was adding more fresh fruit and salad bars, despite the fact that the USDA, under the NSLP, will only reimburse schools for one vegetable and fruit choice per student.[241] He also innovatively worked with food suppliers and asked them to reformulate products and rethink what they sell.[242] The city made breakfasts free for all students in 2003, and the new menu features a low-fat breakfast burrito and low-fat cream cheese for bagels; five million more breakfasts were served in 2005 than in 2003.[243] The results to the new program in New York City school district are both remarkable and promising. Cafeteria sales are up; however, still fewer than 50% of high school students eat school lunches.[244]

Schools are places that ideally educate children about nutrition and health. The nation is experiencing a child obesity epidemic. Kids who eat fast food daily get enough calories to gain an extra six pounds a year.[245] It is an ironic twist that often they can eat these foods daily in school. Basically, just offering more healthful food options at schools is fairly easy to implement and will encourage children to make appropriate food choices. Switching snacks to low-fat popcorn, pretzels, bagel chips, fruit, and low-fat frozen yogurt as opposed to potato chips and cookies would make a difference. Also, while selling fast food is schools can be lucrative to a school’s budget, it is not worth compromising children’s health. According to the CDC, approximately 20% of public schools in the U.S. now lease space to popular fast food companies.[246] Regulating competitive foods in schools is a necessary tool in the fight against child obesity.

The Role Schools Can Play

Schools can help combat child obesity in other areas as well. Another critical step schools can take is to increase physical education and emphasize its importance. Neither corporate sponsorship of school athletic programs nor the obesity epidemic has prevented drastic cuts in elementary and high school physical education programs across the country.[247] According to the CDC, the number of high school students taking daily physical education classes declined more than 30% between 1991 and 2003.[248] Only about half of all schools require any sort of physical education for elementary school students, and only one-fourth to one-third require it for middle school kids.[249] The federal government recommends that students K-12 receive 30 to 60 minutes of age and developmentally appropriate physical activity most days of the week.[250] Despite these recommendations, and that providing PE classes is a relatively easy way to encourage such activity, federal law does not mandate physical education in schools, and only one state, Illinois, currently requires daily PE classes for all students.[251]

To add to the decline in physical activity during the school day, the CDC also reports that 30% of elementary schools nationwide do not offer regular recess.[252] Recess supplies an opportunity for kids to run around for a few minutes on school grounds, providing a safe place for children to go outside and be active. This is especially relevant for children who live in neighborhoods and cities that are not safe for them to play outside after school. Also, expenses of organized sports or other physical activities are increasing. Children of parents with lower incomes and educational levels were less likely to participate in organized physical activity.[253]

Parents recognize the importance of physical activity in a child’s daily life, and schools and governments need to follow. A national survey conducted by the American Obesity Association found that 78% of parents in the United States believe that physical education or recess should not be reduced or replaced with academic classes.[254] Parents should actively campaign to keep physical education, recess, and other activity as part of the school day.

Some schools are also advertising unhealthy food products to students while they are in class. In 1989, Channel One entered schools across the nation with the idea of giving students a twelve minute show on current events each day.[255] Channel One is a program that broadcasts overseas and to 12,000 schools in the United States to an audience of eight million American sixth to twelfth graders.[256] The television channel lends a TV and VCR to classrooms in subscribing schools.[257] In return, the schools show Channel One to kids most days for at least twelve minutes a day.[258] Channel One’s advertising includes candies like M&M’s and Snickers and snacks such as Lay’s potato chips. Some school districts have recognized the potential problems associated with this sort of programming and cancelled the program or refused let it into their schools.[259] The rest of schools need to follow.


Fast food is extremely popular, and there is a lot of discussion around the role and extent of involvement fast food plays in America’s obesity epidemic.[260] There are many reasons we love fast food. Fast food is practical, and offers a large amount of food for little expense. A recent study found that over 75% of fast food eaters “believe they are getting good value for their money”.[261] These meals are also often high in calories and fat.[262] Analyses suggest that children from economically disadvantaged environments are particularly vulnerable to obesity, one reason being fast food serves as an inexpensive meal option.[263] If parents are not fully aware of the nutritional content of fast food, they are more likely to purchase fast food for their children if they view it as a convenient food for a good value.

Fast food patrons consistently underestimate the extent to which consumption of fast food may harm them, because they habitually discount the negative health contents of the foods they eat.[264] Since restaurant patrons underestimate the caloric content of foods they eat in restaurants, parents as decision-makers likely misinterpret the health consequences of buying fast food for their children. Fast food consumption among U.S. children ages four to nineteen has increases approximately 500% since 1970.[265] Americans tend to underestimate the caloric content of restaurant food by approximately 55%.[266]

The fast food industry directly targets young consumers. The concepts of playlands in fast food restaurants, “happy” meals, and clowns as mascots cut against any argument to the contrary. One in three kids in the United States over the age of four eats fast food every day.[267] According to a study published in the Journal of Pediatrics in 2004, kids who eat fast food daily get enough calories to gain six extra pounds a year.[268]

Fast food litigation has received lots of attention in recent years. In 2003, two teens brought suit against McDonald’s in Pelman v. McDonald’s Corp .[269] Their suit was dismissed in part because the court reasoned that they failed to allege that “their decisions to eat at McDonalds several times a week were anything but a choice freely made”.[270] However, McDonald’s and other fast food restaurants do directly advertise to children. Ninety-six percent of American schoolchildren can identify Ronald McDonald, second only to Santa Claus in degree of recognition.[271] The choice on the part of teens to eat at McDonalds was likely free choice, but it is reasonable to assume that this choice was induced, or at least influenced, by years of advertising and marketing strategies directed at young children.

The judge in Perlman noted that there was potential strength in the products liability claim against the fast food restaurant, particularly if it could be shown that McDonald’s created a more dangerous food than a consumer could reasonably expect.[272] The case was ultimately dismissed when the same judge concluded that “the plaintiffs have made no explicit allegations that they witnessed any particular deceptive advertisement, and they have not provided McDonald’s with enough information to determine whether its products are the cause of the alleged injuries.”[273]

The concept of children blaming fast food companies for their obesity and related diseases is more plausible, and more compelling, than it is in the context of adult consumers.[274] Public opinion of the recent exposure on potential fast food litigation tends to mock the idea, and again point to personal responsibility as the cause for obesity. However, these claims are not necessarily as frivolous as they might initially seem, particularly when viewed from the perspective of a child that has grown up inundated with fast food culture. Children are not expected to have the same level of personal responsibility as adults and are exploitable in making food choices.

Any litigation against fast food companies for their role in the obesity epidemic face several obstacles to success. Firstly, there is an unclear duty on the part of fast food companies to protect consumers from overconsumption.[275] This is where the idea of personal responsibility factors in. There is an assumption of risk by consumers when they knowingly eat fattening foods. Polling data supports that there is a broad public awareness of the tendency of fast food to include high levels of fat, cholesterol, sugar, and salt.[276] However, while fast food consumers may recognize that consumption of fast food can lead to obesity, they often fail to recognize the extent to which such consumption may harm them, particularly since they tend to underestimate levels of cholesterol, fat, salt, and sugar in fast food.[277] So if consumers can prove that there was a common law duty to warn arising from the fact that “the product is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it”, they may be able to succeed in litigation against fast food.[278] This principle was demonstrated in the recent tobacco litigation.

Possibly most problematically to successful litigation against fast food companies, it is difficult to prove causation, as obesity is generally caused by a variety of factors. Fast food and obesity is unlike lung cancer and smoking, or breast cancer and silicone breast implants. Obesity can be triggered by a number of factors, such as lack of exercise, genetic predisposition, overconsumption of various foods, or a combination of any of these.[279] In light of these varying factors, it is difficult to measure the extent of the role fast food played in any one person’s obesity. Also, unlike cigarettes, there is no real scientific showing that fast food is “addictive”.[280] Similarly challenging, it is difficult to determine the role obesity plays in triggering diseases such as hypertension or heart disease.[281] While obesity increases the risk of these diseases, other factors such as genetic predisposition and environmental factors play a role as well.

A fast food consumer likely knows that consuming fast foods can have negative health effects. Therefore, it appears unlikely that fast food companies have a common law duty to divulge nutritional content of their food simply because of the inclusion of high levels of cholesterol, fat, salt, and sugar.[282] Fast food consumers seem to know that eating fast food can increase the risk of obesity, but tend to underestimate this causal factor because of insufficient information. Even if litigation against fast food companies is unsuccessful, this does not mean that there are not ways to mandate or incentivize fast food companies to be more responsible in response to the obesity epidemic. One approach is to alter the way fast food companies interact with children.

The idea of advertising to young children likely stems from two ideas. One, that targeting children not only gets them into fast food restaurants, but also achieves getting the parents in too. Also, advertising to children focuses on gaining a lifetime, loyal customer.[283] Children are especially valuable as future consumers. To attract and keep children in their purchasing audience, fast food companies attempt to establish brand loyalty at an early age, one major reason for including children’s toys in fast food meals.[284] The style and substance of child-centered marketing strategies resemble those employed by the tobacco companies, and those triggered a duty to warn.[285] Obesity ranks second only to tobacco use as the largest contributor to mortality rates in the Unites States.[286] In United States v. Philip Morris Inc ., the court described the promotional techniques used by tobacco companies such as advertising near high schools, promoting during summer breaks, giving away cigarettes as places where young people gather, paying for product placement in movies with young audiences, sponsoring sporting and other events popular with young people.[287] Similarly, fast food marketing strategies include representations on television, product placement in children’s movies, billboards on school buses, and toys upon purchase of meals.[288] Tellingly, 96% of children recognize Ronald McDonald as a symbol of fast food, while 72% of children recognize Joe Camel as a symbol of cigarettes.[289]

The Supreme Court recognized in Lorillard Tobacco Co. v. Reilly that there is a danger in fast-food advertising on children in that advertisements directed at children have been successful in changing children’s eating behavior.[290] Children are often unable to discriminate between news and commercials, and educative and persuasive intent.[291] Also, children cannot be held to the same level of personal responsibility and assumption of risk as adults.[292]

The influence of child-centered marketing strategies and advertising of fast food companies illustrates the importance of parents as an intervening factor. Parents need to be more aware of the significance of their role in making food choices for their children. Americans are eating out more, and eating more. The nation is becoming increasingly busy and fast-paced; adding to the allure of eating at restaurants, especially fast-food restaurants, is ease and speediness. Parents need to be fully informed of the risks of availing to their children certain kinds of foods. Again, making nutritional information available gives the parents the most pertinent information to make decisions that will affect their child’s health.

Soft Drinks

Soft drinks are especially deceiving because they are in beverage form and are not going to generate a full feeling as experienced when consuming other high-calorie content items. An average 12-ounce soda contains 10 teaspoons of sugar and 150 calories.[293] Juice and soft drinks often replace milk in children’s and adolescents’ diets and are a major contributing factor to high calorie intake.[294] In January 2004, the American Academy of Pediatrics issued a policy statement warning children’s’ doctors that obesity can be associated with a high intake of sweetened drinks, finding that sweetened drinks are the primary source of added sugar in children’s’ diets and that soda often takes the place of more nutritious drinks such as milk.[295]

For years, and until very recently, soda companies have created exclusive, often secretive, contracts with school districts to install vending machines on school property.[296] In exchange for exclusive right to sell their products in schools, soft drink companies return a portion of the profits to underfunded schools.[297] These much needed funds are then used by schools to buy essentials such as textbooks, and fund sports and music programs.[298] According to the CDC, more than 76% of public schools in the U.S. sell soft drinks from vending machines.[299]

The Los Angeles Unified School District is the second largest school district in the country.[300] In 2004 the district banned soft drinks and sugar-laden fruit drinks for all grades at all campuses.[301] This turned out to be an innovative decision and led to the California state legislature to ban soft drinks from elementary and middle schools.[302] The policy also banishes competitive foods at lunchtime in middle and high schools.[303]

Other states are taking action as well. In 2004, Texas banned sales of candy, soda, and other sweets in elementary schools until after school. The state of New York now prohibits the sale of candy and soda from school vending until the last period.[304] Legislators in nineteen other states are trying to restrict access to soda in schools.[305] Alternatively, schools that are not ready to forego the financial support of contracts with soda companies have managed to restrict access to soda, for instance only allowing use of vending machines before and after school.[306]

Food companies, particularly soda companies criticized for marketing and forming contracts with school districts, argue that the increasing obesity in America is due to a decrease in physical activity. [307] While this is certainly a major part of the problem, weight is a function of calories taken in and calories expended. While calories expended are an essential component of this balance, food and beverage companies cannot ignore the other part, calories taken in, and their role in it.

In a deal announced on May 3, 2006, the nation’s largest beverage distributors agreed to stop selling non-diet sodas in most public schools, in an effort to combat child obesity.[308] This is a bold and major step in the right direction. Under this agreement, diet sodas would still be sold at public high schools, but only unsweetened juice, low-fat milk, and water will be sold at elementary and middle schools.[309] The agreement includes industry giants Cadbury Schwepps PLC, Coca-Cola Co., and PepsiCo Inc. and should reach about 87% of the school drink market.[310] This step shows school systems and large companies both each make changes that will effectively combat child obesity.

Children are in school, for the most part, five to seven hours daily five days a week. Restricting the availability of foods with poor nutritional quality such as fast food or soft drinks for this amount of time is an easy way to combat the child obesity epidemic. Providing healthy alternatives to such foods as well as education on health and some form of physical education or activity are others that, combined, will give the child obesity epidemic a hard hit.


Advertising to children is a controversial issue, especially in light of the recent and growing concerns over the child obesity epidemic. While the FDA regulates food labeling, the FTC regulates the validity of advertising.[311] As public health agencies and others search for the causes of child obesity, many are looking to regulating advertising as a way to address the problem. One proposal is to restrict advertising of certain food products to children.[312]

“Because younger children do not understand persuasive intent in advertising, they are easy targets for commercial persuasion,” states Brian Wilcox, Phd, chair of the American Psychology Association task force.[313] Young children do not understand the purpose of advertisements, and may not realize they are watching an advertisement at all.[314] Furthermore, studies consistently find that most children fail to develop deductive reasoning skills until they are twelve to fifteen years old.[315]

The average American child is exposed to 40,000 ads per year, or three hours of commercials per week.[316] Food commercials account for more than 50% of television advertising aimed at children, meaning that an average child observes at least 10,000 advertisements a year for food, 95% of which pertain to fast food, soda, candy, and sugar-fortified cereals.[317]

The fast food industry alone spends $33 billion annually on advertising, trade shows, incentives, and other consumer promotions.[318] McDonald’s spends $635 million annually on advertising.[319] To put this into perspective, only 2% of food advertising is devoted to the promotion of fruits, vegetables, grains, or beans.[320] Given the amount of children’s exposure to advertisements, it is worth exploring what regulations of advertising to children could accomplish.

Calls for restrictions on food advertising to children are predicated on the assumption that such restrictions will help to fight child obesity.[321] While there is a substantial amount of advertising for unhealthy foods such as sugared cereal, candy, salty snacks, and so on, for the most part children cannot go out and buy these products without their parents. The theory behind restricting advertising to children includes the idea that advertising spurs the demands of children, which in turn, puts pressure on parents.[322] This is another example of an opportunity for parents to act as an intervening factor to environmental influences on children in the obesity epidemic.

While children are exposed to a substantial amount of food advertisements, it appears that such exposure has not risen in the same period that children’s obesity rates have risen, and, some argue, cannot account for the increasing child obesity epidemic.[323] Also, product advertising can increase market demand for a category of products, or it can simply increase demand from a particular brand.[324] Furthermore, a recent study concluded that parents’ eating behavior was substantially more important than advertising in influencing children’s dietary habits.[325]

Again, it is important realize that there are many factors at play, and there is not any one cause that fixing will solve the child obesity epidemic. Advertising may not cause child obesity, but it may be a causal factor. If advertising towards children is not an effective way of influencing what their food choices are, why do food companies spend so much money on advertising targeted at children? For instance, on average, 57% of Saturday morning advertisements promotes some kind of food product.[326] Forty-four percent of ads promote foods such as candy, soft drinks, chips, cakes, cookies, and pastries, and 11% of the ads are for fast-food restaurants.[327] A report published in the Journal of the American Dietetic Association confirms the considerable effects of fast food advertising on children’s eating patterns.[328] In children ages two through six preferences for specific food products were significantly influenced by only one or two exposures to ten- to thirty-second food commercials.[329] So, given the volume of advertisements kids are exposed to, and that kids do not have developed deductive reasoning skills, it is likely that these ads will have some effect on children’s food choices now and in the future.

Another argument is that advertising works to shift demand across brands, which would not necessarily add to the increasing child obesity problem.[330] However, the goals of advertisements are not to merely shift demand across brands; advertising also tries to increase overall market demand as well, and succeeds.

One of the reasons that restricting advertising to children is so controversial is because commercial speech is protected by the First Amendment, and so there is a fear of restricting truthful advertising.[331] To overcome this problem and allow regulation of advertising to children, first it needs to be shown that there is a substantial government interest in protecting children’s health, especially in light of the child obesity epidemic our country is facing.[332] The problem in this arises in proving that restricting advertising for junk food targeted at children would advance the goal of protecting their health. There is a link between television exposure and child obesity, but it difficult to separate how much of this is from exposure to ads for junk food or from the amount of sedentary time watching TV and snacking.[333]

The First Amendment affords protection to commercial speech and freedom of the press, so regulations that restrict too much speech in attempt to accomplish the government’s interest are not upheld.[334] To regulate commercial speech in this manner there would have to be a showing that any restrictions are no more extensive than necessary to serve the government’s interest of protecting children’s health.[335] There are alternatives to address the child obesity epidemic without restricting commercial speech or infringing on the First Amendment, such as requiring physical education in schools, more public awareness and education, and other remedies explored further in this paper. Arguments against any kind of advertising regulation because there are other remedies available seemingly shifts any blame for the child obesity epidemic to other causal factors. However, if advertising to children is a causal factor to child obesity or plays a role in the problem, addressing and modifying advertising to children can act as a valuable step in combating child obesity.

Instead of proving that advertising is causing the obesity epidemic, we should acknowledge that there are many causal factors playing a part in the problem. If advertising targeted at children is part of the problem, taking action to prevent any harmful effects of such advertising is one step in the right direction. It seems obvious that advertising would increase demand for junk food, consumption of which, in turn, to the obesity problem. Why else would McDonald’s spend $635 million annually on advertising?[336]


While commercial speech is protected, false, misleading speech is never protected.[337] The First Amendment does not protect misleading claims of weight-loss, health-benefit, or nutrient-content claims. The FDA and FDA can aggressively regulate deceptive or misleading advertising. Advertisements that are targeted at children have greater potential to be misleading since most children do not have developed deductive reasoning or other skills to filter the information provided in advertisements.[338]

Defining what is “junk food” and what foods constitute good nutritional value can be problematic in any kind of regulation of advertising to children. For example, the FDA’s labeling rules mandate that foods have a minimum amount of certain nutrients before health claims can be made; however, this rule actually works to prevent health claims for many fruits and vegetables.[339] Also, furthering a “good vs. bad” mentality in terms of foods does not necessarily effectively address the obesity problem. The goal is to create a healthy approach to making food choices that leads to an overall healthy lifestyle.

Advertisements and food labels do not necessarily have to work as a causal factor to the obesity epidemic. Food labeling and advertising can actually be used to positively influence the obesity problems, and this concept is worth exploring and implementing. Advertisements and labels are effective tools that reach masses of people and convey valuable information, and therefore have the power to raise awareness and provide guidance to help Americans to manage healthier life-styles.


It is worth exploring how the market can provide incentives and opportunities for companies and other actors to address the child obesity epidemic and make changes that could make a real difference in the lives of children. Even without additional advertising or labeling regulations imposed, some companies are responding to the child obesity epidemic by taking action and making responsible adjustments.

Kraft Foods, Inc. is taking some of the first steps in terms of corporations playing a role in combating (and not escalating) the child obesity epidemic. Kraft announced that it would stop advertising its best-known snack foods and sugary cereals during television shows designed for 6 to 10 year olds.[340] Additionally, the company is pulling its marketing and advertising from classrooms.[341] More significantly, Kraft is making some its products a little healthier by decreasing the amount of fat in products or reducing portion sizes.[342] It’s a step in the right direction, and the company is smart to capitalize on the good will it is generating by taking these initial steps. Hopefully, other corporations will take notice and follow in their footsteps.

Another surprising source taking an active role in combating child obesity is Nickelodeon, the largest kids’ television network.[343] In 2003, the station initiated a campaign called “Let’s Just Play” aimed at getting children more physically active, and dedicates 10% of its non-programmed airtime to encourage children to turn off the TV. It even declared a “Worldwide Day of Play” and went off the air for three hours to encourage children to go outside and play.[344] It is remarkable that a television station is actively campaigning for kids to turn off the television and go outside and play, but obviously Nickelodeon recognizes the extremeness of the problem and is using its influence over children to make a difference.

The deal that led soda companies to stop selling non-diet sodas in most public schools is another example of corporate responsibility.[345] The agreement will affect 35 million young Americans, but should not have much impact on the $63 billion dollar beverage industry; the sale of sodas in schools is a small percentage of their overall volume.[346] Corporate and community recognition of the value to children in these kinds of modifications is essential to defeating the child obesity epidemic.

Other food companies are recognizing their role in what children eat, and are making some adjustments that might make a real difference in the child obesity epidemic. For instance, General Mills is the nation’s No. 2 cereal maker that now makes all its cereals from whole-grain flour.[347] Kraft Foods Inc is the biggest food manufacturer in the nation; in addition to some of the changes previously discussed, Kraft is cutting the fat in hundreds of products.[348] Coca-cola is starting to label some of its sodas with nutrition data for the entire bottle, not just one serving.[349] Pepsico has launched various healthy eating education efforts and tied executive bonus programs to the development and marketing of healthier items.[350] Additionally, Pepsico credits healthier products with two-thirds of its revenue growth.[351] Making companies realize that taking steps like these to fight child obesity can actually benefit them provide the market incentives to take greater action. Industry goodwill and consumer demand are powerful market tools that offer incentives for companies to act responsibly in response to the nation’s obesity epidemic.

Food labeling and advertising can be critical channels that provide consumers with accurate information to make better food choices. The FDA and the Federal Trade Commission should, working together as necessary, further the free flow of truthful and non-misleading information about the nutritional content and health effects of foods.[352] Competition about the health effects of food also can provide a powerful economic incentive for companies to develop and market healthier foods, including foods with fewer calories. In the absence of federal regulations or mandates to divulge food’s nutritional content, market incentives may prove effective in eliciting such information. Employing industry goodwill and consumer demand as powerful tools can influence the actions of the food industry.


Child obesity, and the global obesity epidemic at large, is a result of changes in the past few years including socioeconomic changes, changes in family dynamics, migration towards cities, and improvements in technologies. While these trends are not necessarily harmful, they work together to create an environment that fosters behavior that leads to obesity. To combat the epidemic, we need to address each of these factors. There is not one cause of child obesity that correcting or changing will solve the problem.

We need to raise awareness and encourage parents and pediatricians to actively and aggressively combat behaviors that lead to child obesity. Schools need use their abilities to educate and influence children’s eating habits and lifestyles by educating children on good health habits, providing nutritious and healthy foods at school, and encouraging and providing opportunities for physical education. The government and its agencies need to examine their role in combating child obesity and create or improve upon regulations in ways that will make a difference in the lives of children. Corporations also need to take community responsibility for their actions regarding the obesity epidemic. If they are smart, they will use the market in ways that will be beneficial to them as well as to the health of consumers.

Specifically, we can support establishing subsidies to lower the price of healthy foods, get rid of candy, soda, fast food, and junk food from schools, research the effects (both good and bad) of drug therapies, encourage manufacturers and restaurants to provide more low-calorie options, and require restaurants to clearly list caloric content of menu items. Focusing on calories taken in and expended is an easy starting place. We ultimately need to create lifestyle changes involving nutrionally balanced diets and regular exercise. Combining these strategies, we have the opportunity rescue our nation’s children and defeat this epidemic.

Diagram 1

The Global Picture*

x- axis % of obese 15-yr-olds

y-axis - Country

Diagram 2

Prevalence of Overweight Among Children and Adolescents ages 6-19 years**

x-axis Prevalence (% )

* Carolyn D. Ashworth, M.D., DEFEATING THE CHILD OBESITY EPIDEMIC, 33 (PSG Books) (2005).

** Childhood Overweight: What the Research Tells Us (March 2005). Available on-line at www.healthinschools.org/sh/obesityfs.asp.

[1] “In 2000, for the first time in history, the number of overweight people in the world equaled the number of malnourished –1.1 billion each”. Jeremy H. Rogers, Living on the Fat of the Land: How to Have Your Burger and Sue It Too, 81 WASH. U. L. Q. 859, 866 ( Fall 2003) .

[2] See Rogers, Living on the Fat of the Land: How to Have Your Burger and Sue It Too at 863.

[3] Michael A. McCann, Economic Efficiency and Consumer Choice Theory in Nutritional Labeling , 2004 WIS. L. REV. 1161, 1162 (2004).


[5] McCann, Economic Efficiency and Consumer Choice Theory in Nutritional Labeling at 1162.

[6] Id . at 1164. Americans are getting heavier still. The CDC found that the percentage of obese Americans rose 70% from 1991 to 2001.

[7] Todd J. Zywicki, Debra Holt, & Maureen K. Ohlhausen, Obesity and Advertising Policy , 12 GEO. MASON L. REV. 979 , 989-90 (2004). For example, when adults were offered macaroni and cheese in portions ranging from 2.5 to 5 cups, they ate 30% more from the 5 cup offering than the 2.5 cup one. Furthermore, the study participants did not report feeling fuller after eating the larger amounts.

[8] Zywicki et al., Obesity and Advertising Policy at 990. Snacking accounted for 90% of the increase for men and 112% of the increase for women. Calories from dinner declined markedly. The increase in snacking can be accounted for by the lower time cost of food. As a result of innovations in food preparation and storage technology, reasonably tasty and inexpensive snacks can be stored and readily available.

[9] See The Surgeon General’s Call to Action to Prevent and Decrease Overweight and Obesity: Overweight in Children and Adolescents . U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES . Available on-line at http://www.surgeongeneral.gov/topics/obesity/calltoaction/fact_asolescents.htm.

[10] Daniel DeNoon, Will Obesity Shorten the American Life Span? WEBMD WEIGHT LOSS CLINIC . March 16, 2005. Available on-line at http://www.webmd.com/content/article/102/106604.htm .

[11] Kathryn L. Plemmons, The National School Lunch Program and the USDA Dietary Guidelines: Is There Room for Reconciliation? 33 J.L. & EDUC. 181 , 182 (April 2004).

[12] Tartamella et al., GENERATION EXTRA LARGE , 3-4.

[13] Id . at 3.

[14] Id .

[15] Rogers, Living on the Fat of the Land: How to Have Your Burger and Sue It Too at 866.

[16] Associated Press, Obesity epidemic hits child safety seats . Available online at http://www.msnbc.msn.com/id/12122112/ . More than a quarter million U.S. children ages 1 to 6 are heavier than the weight limits for standard car seats, and most are 3 year olds who weigh more than 40 pounds, which is generally considered overweight. Manufacturers are now making strollers that can support children 50 to 60 pounds.

[17] Rogers, Living on the Fat of the Land: How to Have Your Burger and Sue It Too at 865.

[18] Id .

[19] Rogers, Living on the Fat of the Land: How to Have Your Burger and Sue It Too at 866. The surgery costs approximately $15,000 and carries a risk of death for 1 in 200.

[20] Id . at 859.

[21] Tartamella et al., GENERATION EXTRA LARGE , 136.

[22] McCann, Economic Efficiency and Consumer Choice Theory in Nutritional Labeling at 1178-79. Ten percent of children ages 2 to 5 are overweight, a statistic that has risen over 40% since 1994. Fifteen percent of children ages six to eleven are overweight or obese, compared with only 7% in 1980 and 4% in 1970.

[23] Tartamella et al.,GENERATION EXTRA LARGE , 3-4.

[24] McCann, Economic Efficiency and Consumer Choice Theory in Nutritional Labeling at 1178.


[26] See TartamellaET AL., GENERATION EXTRA LARGE , 53-55.

[27] Id . at 119. A 2000 survey in Marin County, California found that one in four cars in morning traffic was taking kids to school.

[28] McCann, Economic Efficiency and Consumer Choice Theory in Nutritional Labeling at 1178-79. Studies show that children from economically disadvantaged or single-parent households tend to skip breakfast, eat fewer vegetables, and eat more junk food than any other demographic.

[29] TartamellaET AL., GENERATION EXTRA LARGE , 121-122. A 2003 study by researchers at the CDC estimated that suburban life adds an average of six pounds to every adult.

[30] Id . at 119.

[31] See Overweight? Not my Kid! FDA Consumer Magazine, September-October 2000. Available on-line at http://www.fda.gov/FDAC/departs/2000/500_upd.html#weight .

[32] Tartamella et al., GENERATION EXTRA LARGE , 119.

[33] McCann, Economic Efficiency and Consumer Choice Theory in Nutritional Labeling at 1179-80.

[34] Ashworth, DEFEATING THE CHILD OBESITY EPIDEMIC, 120-121. According to the National Institute on Media and the Family, 92% of children ages 2 to 17 years old play video games and one-third of all children have video game players in their room. According to the Kaiser Family Foundation, 30% of children ages 2 to 18 spend more than an hour playing a video game each day. A study conducted by the University of Michigan examined how teens spend their free time. Youths ages 12 to 17 spend an average of about five hours a week using the home computer.

[35] Tartamella et al., GENERATION EXTRA LARGE , 91.


[37] Id . at 109.

[38] Id . at 72. In 1976, one-third of America’s married couples had children and two spouses working. In 1998, these families comprised 51% of all American families.

[39] McCann, Economic Efficiency and Consumer Choice Theory in Nutritional Labeling, 1224.

[40] Ashworth, DEFEATING THE CHILD OBESITY EPIDEMIC , 73. The family meal also has many other benefits for children. A survey for the National Center on Addiction and Substance Abuse found that among 12 to 17 year-olds, those who eat meals with their families are less likely to smoke, drink, or use illegal drugs than those who don’t.

[41] Tartamella et al., GENERATION EXTRA LARGE , 55. According to a 2002 report by USDA researchers, in 1996 Americans got about one third of their daily calories form foods prepared outside of the house, nearly a 100% increase since 1977.

[42] McCann, Economic Efficiency and Consumer Choice Theory in Nutritional Labeling at 1171.

[43] McCann, Economic Efficiency and Consumer Choice Theory in Nutritional Labeling at 1176.

[44] Plemmons, The National School Lunch Program and the USDA Dietary Guidelines: Is There Room for Reconciliation? at 199.

[45] Id .


[47] Tartamella et al., GENERATION EXTRA LARGE , 137.

[48] Id . at 138.

[49] Id .

[50] Rogers, Living on the Fat of the Land: How to Have Your Burger and Sue It Too at 866.

[51] The Surgeon General’s Call to Action to Prevent and Decrease Overweight and Obesity: Overweight in Children and Adolescents . U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES . Available on-line at http://www.surgeongeneral.gov/topics/obesity/calltoaction/fact_asolescents.htm.


[53] Id . at 150-151.

[54] Id . at 151.

[55] McCann, Economic Efficiency and Consumer Choice Theory in Nutritional Labeling at 1166. See also The Surgeon General’s Call to Action to Prevent and Decrease Overweight and Obesity: Overweight in Children and Adolescents . U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES . 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.

[56] McCann, Economic Efficiency and Consumer Choice Theory in Nutritional Labeling at 1166.

[57] Id .

[58] Id .


[60] Id .

[61] Id . at 152-153.

[62] Id . A study recently revealed that 50% of people with diabetes will also develop a non-alcoholic fatty liver and non-alcoholic hepatitis. Frighteningly, fatty liver disease is being diagnosed in 10-year-old children. There are questions to as this becomes more prevalent and this generation grows older what the long-term consequences of this disease will be.

[63] Id . at 147. The cardiovascular risks are particularly alarming. In 1999, the CDC found that 10% of normal weight children demonstrated one cardiovascular risk. Recent studies show that 60% of obese children ages five to 10 years have at least one cardiovascular disease risk factor such as elevated cholesterol, triglycerides, insulin or blood pressure. Twenty-five percent of these children already show signs of developing two or more of these risk factors.

[64] Id . at 148.

[65] Id . at 149. The Journal of the American Medical Association recently reported a strong upward shift in the blood pressure of American children.

[66] Id .

[67] Id .

[68] See The Surgeon General’s Call to Action to Prevent and Decrease Overweight and Obesity: Overweight in Children and Adolescents . U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES . Available on-line at http://www.surgeongeneral.gov/topics/obesity/calltoaction/fact_asolescents.htm.


[70] Tartamella et al., GENERATION EXTRA LARGE , 18.


[72] Rogers, Living on the Fat of the Land: How to Have Your Burger and Sue It Too at 869.

[73] See Childhood Overweight: What the Research Tells Us (March 2005). Available on-line at www.healthinschools.org/sh/obesityfs.asp .

[74] Id .

[75] Tartamella et al., GENERATION EXTRA LARGE , 18. The study was conducted by researchers at the University of California at San Diego. The researchers surveyed 106 obese children and their parents and found that the children’s quality of life was far inferior to average-weight kids. They were five times as likely to be impaired physically and to be suffering far more than other kids emotionally, socially, and at school. Approximately 65% of the kids had an obesity related health problem such as diabetes, sleep apnea, or elevated cholesterol. Nearly 13% suffered from anxiety, depression, or other psychiatric problems.


[77] See Childhood Overweight: What the Research Tells Us (March 2005). Available on-line at www.healthinschools.org/sh/obesityfs.asp .

[78] Tartamella et al., GENERATION EXTRA LARGE , 8-9.

[79] Id .

[80] McCann, Economic Efficiency and Consumer Choice Theory in Nutritional Labeling at 1167-68. Taxpayers pay about 60% of the $75 billion national health bill added by the overweight and obese.

[81] Rogers, Living on the Fat of the Land: How to Have Your Burger and Sue It Too at 866-67.

[82] DeNoon, Will Obesity Shorten the American Life Span? Available on-line at http://www.webmd.com/content/article/102/106604.htm.

[83] Id .

[84] Id .

[85] Tartamella et al., GENERATION EXTRA LARGE , 10. Study conducted by researchers from the University of Alabama at Birmingham.

[86] Rogers, Living on the Fat of the Land: How to Have Your Burger and Sue It Too at 862.

[87] McCann, Economic Efficiency and Consumer Choice Theory in Nutritional Labeling at 1184-85.

[88] See Calories Count: Report of the Working Group on Obesity (March 12, 2004). Available on-line at http://www.fda.gov/oc/initiatives/obesity/.

[89] Id .

[90] Id .

[91] Id . “For example, a 20 oz. bottle of soda that currently states 110 calories per serving and 2.5 servings per bottle could be labeled as containing 275 calories per bottle.”

[92] Id .

[93] Id . For example, “instead of cherry pie, try our delicious low fat cherry yogurt – 29% fewer calories and 86% less fat”.

[94] Id .

[95] Id .

[96] Id . Such youth oriented organizations include the Girl Scouts of the USA, the National Association of State Universities, and Land Grant Colleges (4-H program).

[97] Id .

[98] Id .

[99] Id .

[100] Id .

[101] Id .

[102] Sonia Caprio, Treating Child Obesity and Associated Medical Conditions , THE FUTURE OF CHILDREN 16 (2006):214. Available on-line at http://www.futureofchildren.org/information2826/information_

[103] Id . at 215.


[105] Caprio, Treating Child Obesity and Associated Medical Conditions at 215.

[106] See on-line at .

[107] Caprio, Treating Child Obesity and Associated Medical Conditions at 215.

[108] Id .

[109] Id .

[110] Id .

[111] Id .

[112] Id .

[113] Id .

[114] Id . Neither group showed significant differences with respect to changes in lipid or glucose levels. Although researchers do not yet know how much BMI must be reduced to provide short and long-term health benefits in children and adolescents, this study suggests that small changes in weight do not affect the metabolic risk factors.

[115] Id .

[116] Id . at 216.

[117] Id .

[118] Id .

[119] Id .

[120] Id .

[121] Jennifer Barrett Ozols, Extreme Measures , NEWSWEEK (January 6, 2005). Available on-line at www.msnbc.com/newsweek/archives .

[122] Id . This makes the procedure appealing for younger patients rather than permanently shrinking their stomachs. The procedure costs $15,000 to $25,000, and is not always covered by insurance companies.

[123] Id .

[124] Id .

[125] See See Overweight? Not my Kid! FDA Consumer Magazine, September-October 2000. Available on-line at http://www.fda.gov/FDAC/departs/2000/500_upd.html#weight . Researchers from the Bassett Healthcare Research Institute in Cooperstown, NY and Columbia University surveyed 1400 guardians of children age 1 to 5 who were participants in the Supplemental Nutrition Program for Women, Infants, and Children (WIC) in New York. The researchers found that 68% of parents of children with a Body Mass Index (BMI) above the 95th percentile (considered obese) reported the child’s weight as “OK, just right” and 8% even reported their child was “underweight”.

[126] Caprio, Treating Child Obesity and Associated Medical Conditions at 210.

[127] Id . at 216.

[128] McCann, Economic Efficiency and Consumer Choice Theory in Nutritional Labeling at 1175.

[129] Id . at 1176.

[130] McCann, Economic Efficiency and Consumer Choice Theory in Nutritional Labeling at 1225.

[131] Tartamella et al., GENERATION EXTRA LARGE, 31.

[132] Id . at 32.

[133] Caprio, Treating Child Obesity and Associated Medical Conditions at 217.

[134] McCann, Economic Efficiency and Consumer Choice Theory in Nutritional Labeling at 1185.

[135] Tartamella et al., GENERATION EXTRA LARGE , 160.

[136] Id .

[137] Id .

[138] Id .

[139] Id . at 161.

[140] Id .

[141] Id .

[142] Id .

[143] Id .

[144] McCann, Economic Efficiency and Consumer Choice Theory in Nutritional Labeling at 1187.

[145] Id .

[146] Id .

[147] Id . at 1163.

[148] Id . at 1212.

[149] Id . at 1188.

[150] Id .

[151] Id . Specifically, the restaurants were ordered to change their menus’ claims of “healthy” items so that they were either “designed to meet the requirements for the claim because it was prepared using a recipe from a recognized health professional association or dietary group” or “the nutritional values for the dish were calculated using a reliable nutrition data base.” Restaurants were allotted ten months to make the necessary changes.

[152] Id .

[153] Id . at 1189. The premarket approval was based on “the totality of publicly available scientific evidence” that the claim is supported by significant scientific agreement, among experts.

[154] Id .

[155] Id .

[156] Id .

[157] Id . at 1190.

[158] Id . at 1206.

[159] See http://www.bk.com/Nutrition/PDFs/brochure.pdf .

[160] McCann, Economic Efficiency and Consumer Choice Theory in Nutritional Labeling at 1193.

[161] Id .

[162] Id . at 1195. Advocates of campaign finance reform contend that such preferred treatment can be attributed to substantial campaign contributions. According to the Center for Public Integrity, the fast food industry has contributed more than $41 million to congressional and senatorial races from 1988 to 1998. McDonald’s supplied $1.7 million to congressional races at this time.

[163] Id . at 1190.

[164] Id . at 1192.

[165] Id . The FTC finds that 70% of food shoppers in grocery stores make their purchasing decisions at the point at which they are being directly exposed to label information.

[166] Id . For examples see www.mcdonalds.com , www.burgerking.com , or www.tacobell.com .

[167] Id .

[168] Id .

[169] Id . at 1193. For example, a visitor to Burger King’s website can learn that a Double Whopper with Cheese contains sixty-four grams of fat, but will not see that consuming sixty-four grams of fat is 100% of the suggested daily intake of saturated fat.

[170] Id .

[171] Id .

[172] Rogers, Living on the Fat of the Land: How to Have Your Burger and Sue It Too at 878.

[173] Id .

[174] Tartamella et al., GENERATION EXTRA LARGE , 60.

[175] Id .

[176] McCann, Economic Efficiency and Consumer Choice Theory in Nutritional Labeling at 1201.

[177] Id .

[178] Id . at 1198-1202.

[179] Id . at 1201-02.


[181] Id .

[182] Tartamella et al., GENERATION EXTRA LARGE , 61. For example, the size of the typical cheeseburger went from 5.8 ounces to 7.3 ounces, adding 136 calories.

[183] Id .

[184] Id .


[186] Plemmons, The National School Lunch Program and the USDA Dietary Guidelines: Is There Room for Reconciliation? at 192.

[187] McCann, Economic Efficiency and Consumer Choice Theory in Nutritional Labeling at 1194.

[188] Id .

[189] Zywicki et al., Obesity and Advertising Policy at 1006.

[190] Id .

[191] Id . at 1007. A review of nationwide food intake surveys from 1977-78, 1989, and 1996 concluded that portion sizes for numerous types of food grew substantially between 1977 and 1996.

[192] See Calories Count: Report of the Working Group on Obesity, supra.

[193] McCann, Economic Efficiency and Consumer Choice Theory in Nutritional Labeling at 1194.

[194] Id . For example, one serving size of items such as donuts or pastries is measured at fifty-five grams and one serving size of pretzels and popcorn is measured at thirty grams.

[195] Id .

[196] J. Howard Beales, Advertising to Kids and the FTC: A Regulatory Retrospective that Advises the Present , 12 GEO. MASON L. REV. 873, 892 (Summer 2004).

[197] Id .

[198] McCann, Economic Efficiency and Consumer Choice Theory in Nutritional Labeling at 1185.

[199] Id . at 1186.

[200] Tartamella et al., GENERATION EXTRA LARGE , 67.

[201] Beale, Advertising to Kids and the FTC: A Regulatory Retrospective that Advises the Present at 893.

[202] Id . at 894.

[203] McCann, Economic Efficiency and Consumer Choice Theory in Nutritional Labeling at 1195. According to one study, consumers regard the format as effective. Ninety percent believe the format “makes it easier to tell if a food is high or low in fat”. Seventy percent regard the format as “more clear and understandable” than previous incarnations of nutrition facts.


[205] See Amanda Spake, The World of Chef George: The daunting task of making New York City’s school lunches healthful . May 9, 2005. Available on-line at http://www.usnews.com/usnews/health/articles/050509/9chef.htm.

[206] Id .

[207] Id .

[208] Diane Whitmore Schanzenbach, Do School Lunches Contribute to Child Obesity? UNIVERSITY OF CHICAGO (October 2005) 2. Available online at http://academics.hamilton.edu/economics/home/lunch6.pdf.

[209] Id . at 23.

[210] Id . at 2.


[212] Id . at 73.

[213] Schanzenbach, Do School Lunches Contribute to Child Obesity? at 6.

[214] Id . at 7-8.

[215] See Schanzenbach, Do School Lunches Contribute to Child Obesity? at 17. Confounding variables included after-school activities, home environment, presence of older siblings, mothers entering employment.

[216] Id . at 19.

[217] Id . at 17-19. Controlling for observable characteristics such as age, race, gender, parents’ BMI, and family size, school lunch eaters consume about forty-six extra calories per day, but this additional consumption comes entirely at lunch.

[218] Id . at 20. This study was conducted with Mathematica Policy Research (MPR) using the Continuing Survey of Food Intake by Individuals (CSFII). They also found that all of these additional calories come at lunchtime and that there is no difference in the non-lunch calories consumed by the two groups.


[220] Id . at 21.

[221] Id . at 4.

[222] Id .

[223] Id .


[225] Id .

[226] Id . at, 93.

[227] Id .

[228] McCann, Economic Efficiency and Consumer Choice Theory in Nutritional Labeling at 1183.


[230] McCann, Economic Efficiency and Consumer Choice Theory in Nutritional Labeling at 1184.

[231] Tartamella et al., GENERATION EXTRA LARGE , 83. Wary of soda and vending machine foods encroaching on schools, Congress amended the 1966 Child Nutrition Act in 1970, allowing the USDA to regulate foods that competed with the school lunch program. Schools making money selling snack foods objected, and in 1972 Congress rescinded USDA’s authority. “Profit had triumphed over nutrition,” a U.S. District Court judge would later write.

[232] See Childhood Overweight: What the Research Tells Us (March 2005). Available on-line at www.healthinschools.org/sh/obesityfs.asp .

[233] Tartamella et al., GENERATION EXTRA LARGE , 96.

[234] Id .

[235] Id .

[236] Schanzenbach, Do School Lunches Contribute to Child Obesity? at 5.

[237] Id .

[238] McCann, Economic Efficiency and Consumer Choice Theory in Nutritional Labeling at 1198.

[239] See Amanda Spake, The World of Chef George: The daunting task of making New York City’s school lunches healthful . May 9, 2005. Available on-line at http://www.usnews.com/usnews/health/articles/050509/9chef.htm.

[240] Id .

[241] Id .

[242] Id .

[243] Id .

[244] Id .

[245] Tartamella et al., GENERATION EXTRA LARGE , 78

[246] McMann, Economic Efficiency and Consumer Choice Theory in Nutritional Labeling at 1182-83.

[247] Tartamella et al., GENERATION EXTRA LARGE , 91.

[248] Id .

[249] Id . at 107. Additionally, a study of third and fourth graders published in 2000 found that kids were less active after school on days when they don’t have P.E.

[250] Ashworth, DEFEATING THE CHILD OBESITY EPIDEMIC , 114. A study from the National Institute for Health Care Management Research and Educational Foundation found that only 16% of kindergarten programs met this standard. The prevailing schedule for 72% of kindergarteners is to have PE less than two times a week.

[251] Tartamella et al., GENERATION EXTRA LARGE , 91.

[252] Id . at 110. In March 2004 a recess bill went before the Georgia state legislature that would require schools to give at least fifteen minutes a day of recess. The bill did not pass despite the vocal support of parents, teachers, and the American Academy of Pediatrics.

[253] See Childhood Overweight: What the Research Tells Us (March 2005). Available on-line at www.healthinschools.org/sh/obesityfs.asp .

[254] Tartamella et al., GENERATION EXTRA LARGE , 113.


[256] Tartamella et al., GENERATION EXTRA LARGE , 84.

[257] Id .

[258] Id . Adding up the time that kids are exposed to TV in the classroom from this set-up it comes to one lost week of school per year, or seven weeks over the course of seven school years.

[259] Id . The states of New York and California refused to let Channel One into their schools. Those school districts that continue to use Channel One defend their position because it provides equipment they would otherwise be unable to afford.

[260] McCann, Economic Efficiency and Consumer Choice Theory in Nutritional Labeling at 1172. Twenty-five percent of Americans eat fast food daily, and the average American consumes two fast food meals a week. Americans now spend $110 billion annually on fast food items compared to $50 billion spent on seafood, and $60 billion spent on fruits and vegetables. There are almost 250,000 fast food restaurants in the Untied States, or roughly one for every 1,200 Americans.

[261] Id . at 1175.

[262] Id . For example, a “super sized Big Mac value meal” at McDonald’s contains 1430 calories and fifty-eight grams of fat. The FDA, in the interests of maintaining good health, presently recommends that fat intake not exceed 30% of total daily consumption of calories, and that the average-sized person consume between 2,000 and 2,500 calories and sixty-five grams of fat each day.

[263] Id . 1178-79.

[264] Id . 1176.

[265] Id . 1180. In any given month, 90% of American children between the ages of three and nine eat at a McDonald’s restaurant. Children who consume fast food could theoretically add on average six pounds to their weight per year.

[266] McCann, Economic Efficiency and Consumer Choice Theory in Nutritional Labeling , supra at 1176.

[267] Tartamella et al., GENERATION EXTRA LARGE , 78.

[268] Id .

[269] See Pelman v. McDonald’s Corp ., No. 02 Civ. 7821 (S.D.N.Y. Sept. 3, 2003).

[270] Id .

[271] McCann, Economic Efficiency and Consumer Choice Theory in Nutritional Labeling at 1181.

[272] Id . at 1208.

[273] Pelman , 237 F. Supp. 2d.512 (S.D.N.Y. 2003).

[274] McCann, Economic Efficiency and Consumer Choice Theory in Nutritional Labeling at 1207.

[275] Id . at 1215.

[276] Id .

[277] Id .

[278] Id . at 1216.

[279] Id . at 1228.

[280] Id .

[281] Id . at 1230.

[282] Id . at 1215.

[283] Id .

[284] Id . at 1182. An example of this is Burger King’s toy promotion in 2000 with Teletubbies is credited with doubling the company’s sales to children that year.

[285] Id .

[286] Id .

[287] Id . at 1223.

[288] Id . at 1222.

[289] Id .

[290] Lorillard Tobacco Co. v. Reilly , 121 S.Ct. 2404 (U.S. June 28, 2001).

[291] Tartamella et al., GENERATION EXTRA LARGE , 70.

[292] See McCann, Economic Efficiency and Consumer Choice Theory in Nutritional Labeling at 1222.


[294] Caprio, Treating Child Obesity and Associated Medical Conditions at 211.

[295] Tartamella et al., GENERATION EXTRA LARGE , 79. A study from 2003 published in Obesity Research estimated that the average person on the planet got seventy-four more calories each day from added sweeteners in 2000 than in 1962. Although the sweets came in many forms, sodas accounted for the majority of the extra calories.

[296] Id . at 78.

[297] Id .

[298] Id . at 79.

[299] Id . Kids can buy soda in nearly ninety-four percent of high schools and fifty-eight percent of elementary schools, according to a Robert Woods Johnson Foundation report.

[300] Id . at 85.

[301] Id.

[302] Id . The ban, while a huge step in the right direction, did not apply to high schools.

[303] Id .

[304] Id . at 87. After banishing soda, the New York City school system signed an eight million dollar contract with Snapple, making it the official drink of New York schools. This means that the company will be selling 100% juice and bottled water alongside its fruit drinks, the Snapple drinks are sugar-sweetened and just as bad for kids as soda.

[305] Id .

[306] Id .

[307] Id . at 92. Cola companies are even putting millions of dollars directed towards youth athletic programs.

[308] See Companies pulling sodas out of schools, May 3, 2006. Available on-line at http://www.cnn.com/2006/HEALTH/diet.fitness/05/03/softdrinks.schools.ap/index.html . Former President Clinton’s William J. Clinton Foundation helped broker the deal that should affect 35 million students in the nation.

[309] Id .

[310] Id .

[311] Jodie Sopher, Weight-loss Advertising Too Good to be True: Are Manufacturers or the Media to Blame? 22 CARDOZO ARTS & ENT. L.J. 933, 934 (2005).

[312] Beales, Advertising to Kids and the FTC: A Regulatory Retrospective that Advises the Present at 8.

[313] Tartamella et al., GENERATION EXTRA LARGE , 70.

[314] Id . “A task force from the American Psychological Association reported in 2004 that children under eight generally don’t understand the purpose of advertisements.”

[315] McCann, Economic Efficiency and Consumer Choice Theory in Nutritional Labeling at 1207.


[317] McCann, Economic Efficiency and Consumer Choice Theory in Nutritional Labeling at 1180.

[318] Id . at 1172-73.


[320] McCann, Economic Efficiency and Consumer Choice Theory in Nutritional Labeling at 1173.

[321] Zywicki et al., Obesity and Advertising Policy at 991.

[322] Id .

[323] Id . at 999.

[324] Id . at, 1000.

[325] Id . at 1001.


[327] Id .

[328] McCann, Economic Efficiency and Consumer Choice Theory in Nutritional Labeling at 1182-83.

[329] Id .

[330] Beales, Advertising to Kids and the FTC: A Regulatory Retrospective that Advises the Present at 9. See also Zywicki et al., Obesity and Advertising Policy at 991.

[331] Beales, Advertising to Kids and the FTC: A Regulatory Retrospective that Advises the Present at 8-9.

[332] Id .

[333] Id ..

[334] Sopher, Weight-loss Advertising Too Good to be True: Are Manufacturers or the Media to Blame ? at 954.

[335] Beales, Advertising to Kids and the FTC: A Regulatory Retrospective that Advises the Present at 10.

[336] Ashworth, DEFEATING THE CHILD OBESITY EPIDEMIC , supra at 60.

[337] Sopher, Weight-loss Advertising Too Good to be True: Are Manufacturers or the Media to Blame? , supra 954.

[338] McCann, Economic Efficiency and Consumer Choice Theory in Nutritional Labeling, supra at 1207.

[339] Beales , Advertising to Kids and the FTC: A Regulatory Retrospective that Advises the Present at 9.


[341] Id .

[342] Id .

[343] Id . at 138.

[344] Id .

[345] See Companies pulling sodas out of schools, May 3, 2006. Available on-line at http://www.cnn.com/2006/HEALTH/diet.fitness/05/03/softdrinks.schools.ap/index.html .

[346] Id .

[347] See Don’t blame Big Gulp for America’s obesity . March 19, 2006. Available on-line at http://www.msnbc.msn.com/id/11823972/.

[348] Id .

[349] Id .

[350] Id .

[351] Id .

[352] See Statement of Timothy J. Muris, Federal Trade Commission Chairman. March 12, 2004. Available on-line at http://www.ftc.gov/speeches/muris/040312obesity.htm