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March 2009 (Volume 87)
Jennifer L. Pomeranz
Stephen P. Teret
Stephen D. Sugarman
Kelly D. Brownell
Milbank Memorial Fund
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Context: The law is a powerful public health tool with considerable potential to address the obesity issue. Scientific advances, gaps in the current regulatory environment, and new ways of conceptualizing rights and responsibilities offer a foundation for legal innovation. Methods: This article connects developments in public health and nutrition with legal advances to define promising avenues for preventing obesity through the application of the law. Findings: Two sets of approaches are defined: (1) direct application of the law to factors known to contribute to obesity and (2) original and innovative legal solutions that address the weak regulatory stance of government and the ineffectiveness of existing policies used to control obesity. Specific legal strategies are discussed for limiting children’s food marketing, confronting the potential addictive properties of food, compelling industry speech, increasing government speech, regulating conduct, using tort litigation, applying nuisance law as a litigation strategy, and considering performance-based regulation as an alternative to typical regulatory actions. Finally, preemption is an overriding issue and can play both a facilitative and a hindering role in obesity policy. Conclusions: Legal solutions are immediately available to the government to address obesity and should be considered at the federal, state, and local levels. New and innovative legal solutions represent opportunities to take the law in creative directions and to link legal, nutrition, and public health communities in constructive ways.
Author(s): Jennifer L. Pomeranz; Stephen P. Teret; Stephen D. Sugarman; Lainie Rutkow; Kelly D. Brownell
Keywords: food; obesity; law; marketing; addiction; litigation; regulation; preemption
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Volume 87, Issue 1 (pages 185–213) DOI: 10.1111/j.1468-0009.2009.00552.x Published in 2009
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The Milbank Quarterly’s multidisciplinary approach and commitment to applying the best empirical research to practical policymaking offers in-depth assessments of the social, economic, historical, legal, and ethical dimensions of health and health care policy.