BIG FOOD AND SODA VERSUS PUBLIC HEALTH: INDUSTRY LITIGATION AGAINST LOCAL GOVERNMENT REGULATIONS TO PROMOTE HEALTHY DIETS.

• Author: Roache, Sarah A.
• Position: Colloquium: Taking a Bite out of the Big Apple: A Conversation About Urban Food Policy

Introduction 1052 I. Diet-Related Chronic Diseases 1053 A. The Rise of Diet-Related Chronic Diseases 1054 B. Costs of Diet-Related Chronic Diseases 1055 II. Government Measures to Promote Healthy Diets and Prevent Diet-Related Chronic Diseases 1056 A. Federal Government Action 1056 B. State Government Programs 1057 C. Local Government Initiatives 1059 III. Industry Attempts to Thwart Public Health Regulations 1061 A. Lobbying 1061 B. Funding Scientific Research 1064 C. Public Messaging 1066 D. Funding "Grassroots" Opposition 1066 IV. Industry Litigation Challenging Local Government Measures to Promote Healthier Diets 1067 A. New York City Soda Portion Cap Rule 1067 B. Philadelphia Soda Tax 1070 C. Cook County Soda Tax 1073 D. San Francisco Soda Warning Ordinance 1078 V. Legal Viability and Political Sustainability of Local Government Measures to Promote Healthier Diets 1083 A. Legal Viability 1084 B. Political Sustainability 1087 Conclusion: Toward a Healthier and More Productive Future 1088 INTRODUCTION

Unhealthy diets are contributing to alarming levels of obesity, cardiovascular disease, type 2 diabetes, and certain cancers throughout the United States. (1) While high-fat, sugar- and sodium-laden diets are major contributors, one of the most important causative factors is the increased consumption of sugary beverages, which include beverages that contain added caloric sweeteners such as flavored milks, fruit drinks, sports drinks, and sodas. (2) Sugary beverages are the single largest source of added sugar in the American diet. (3) Higher intake of sugary beverages among children was associated with a fifty-five percent higher risk of being overweight or obese than those with lower intake. (4)

Although federal and state governments have taken some proactive measures to prevent diet-related diseases, local governments have emerged as key innovators to promote healthier diets. (5) Innovative local measures include menu labeling laws, a soda portion cap, soda taxes, and warning labels. (6) These interventions seek to discourage overconsumption of fats, sodium, and sugars, which raises tensions between health promotion and the food and beverage industry's commercial interests in promoting products and maximizing profits. (7) Although cities are making progress to encourage and promote healthier diets, (8) these local governments must prepare for the inevitable resistance from powerful food and beverage industry actors, including litigation, which can undermine innovative, evidence-based public health measures. (9)

Part I of this Article discusses the rise of diet-related chronic diseases and the serious social and economic impacts on individuals and societies. Part II examines federal, state, and local government interventions to prevent these diseases. Part III discusses food and beverage industry efforts to undermine public health regulations, including lobbying and public messaging. Analyzing four case studies from cities throughout the United States, Part IV identifies litigation as a key component of the food and beverage industry's strategy to undermine local government measures promoting healthier diets. Part V argues that local jurisdictions should prepare to defend their public health laws and policies against industry litigation and suggests steps to help ensure legal viability, political sustainability, and public support.

1. DLET-RELATED CHRONIC DISEASES

   Over the last four decades, there has been a significant rise in overweight and obesity in the United States. (10) These medical conditions are unhealthy, harmful, and increase the risk of other chronic and terminal health problems, including type 2 diabetes, cardiovascular disease, and certain cancers. (11) Recognizing these health risks, and social and economic impacts, is imperative to fully appreciate the gravity of the current public health crisis, which demands meaningful attention from federal, state, and local governments.

   1. The Rise of Diet-Related Chronic Diseases

      Public health professionals have raised concerns about the rapid rise of diet-related chronic diseases. According to a 2011 study, "nearly 70% of adults are classified as overweight or obese compared with fewer than 25% forty years ago." (12) In 2014, more than one third of adults in the United States had obesity. (13) Among U.S. children aged two through nineteen years, one in six, or approximately seventeen percent, had obesity. (14) These statistics indicate that obesity now affects a significant portion of the population.

      Public health and medical officials are particularly concerned about rising obesity rates because obesity causes many adverse health effects and is associated with an increased risk of premature death. (15) Furthermore, "[i]f the current trends continue, obesity may overtake cigarette abuse as the leading cause of preventable disease." (16) The Centers for Disease Control and Prevention ("CDC") has noted that people who have obesity are at greater risk for a number of harmful and potentially fatal diseases or conditions, including:

      [H]igh blood pressure (Hypertension), [h]igh LDL cholesterol, low HDL cholesterol, or high levels of triglycerides (Dyslipidemia), [t]ype 2 diabetes, [c]oronary heart disease, [s]troke, [g]allbladder disease, [osteoarthritis (a breakdown of cartilage and bone within a joint), [s]leep apnea and breathing problems, [s]ome cancers... (endometrial, breast, colon, kidney, gallbladder, and liver), [l]ow quality of life, [m]ental illness such as clinical depression, anxiety, and other mental disorders, [and] [b]ody pain and difficulty with physical functioning. (17) Notably, obesity disproportionately affects low-income and minority populations. In 2014, the obesity rate among non-Hispanic black adults was 48.1% compared to 42.5% of Hispanic adults and 34.5% of non-Hispanic white adults. (18) The obesity rate among Hispanic children was 21.9% compared to 19.5% of non-Hispanic black children and 14.7% of non-Hispanic white children. (19) According to a 2015 study, the association between race and ethnicity and childhood obesity disappeared after controlling for family income, indicating that socioeconomic status is more important than race or ethnicity in predicting childhood obesity. (20) Obesity and its related health impacts threaten the most vulnerable populations.

   2. Costs of Diet-Related Chronic Diseases

      In addition to the health and equity impacts of diet-related chronic diseases, their increased prevalence raises significant concerns about the economic impacts on individuals, families, and society. (21) There are two types of costs associated with the treatment of chronic diet-related diseases--direct costs and indirect costs. (22) Direct costs result from medical treatment, both inpatient and outpatient, including surgeries, drug therapy, and laboratory and radiological tests. (23) According to the CDC, the medical care costs of obesity are estimated to be $147 billion per year. (24) A 2011 study estimated that the annual direct medical costs for people with obesity were $1,723 higher than normal weight persons. (25) Professor John Cawley and Professor Chad Meyerhoefer estimate that obesity-related health care costs constitute 20.6% of national expenditures on health care. (26)

      In addition to direct economic costs, obesity-related diseases result in significant indirect costs, including absenteeism, lack of productivity at work, increased insurance premiums, and lower wages. (27) According to the CDC, the "annual nationwide productive costs of obesity-related absenteeism range between $3.38 billion ($79 per obese individual) and $6.38 billion ($132 per obese individual)." (28) If left unchecked, the rising prevalence of diet-related diseases poses serious consequences for population health, the healthcare system, and the economy more broadly. (29) Preventative measures, discussed in Part II, can improve individual and population health outcomes and reduce the economic costs of chronic diet-related diseases.

2. GOVERNMENT MEASURES TO PROMOTE HEALTHY DIETS AND PREVENT DIET-RELATED CHRONIC DISEASES

   As a result of the severe health impacts and social and economic costs of diet-related disease, federal, state, and local governments are taking steps to promote healthier diets and prevent obesity. Public officials have a range of legal and policy interventions at their disposal, including public awareness campaigns, nutrition information and warnings on food labels and menu boards, taxes and subsidies, and marketing restrictions.

   1. Federal Government Action

      The federal government, primarily through the Food and Drug Agency ("FDA") and the United States Department of Agriculture ("USDA"), has taken steps to address obesity and nutrition. The FDA is responsible for "ensuring the safety of our nation's food supply," among other functions. (30) Among its numerous responsibilities, the FDA oversees the Nutrition Facts label on food packaging, which includes information on calories, fats, sodium, and vitamins. (31) In May 2016, the FDA significantly updated the Nutrition Facts label, requiring disclosure of the amount of added sugars in grams and expressed as a percentage of the recommended daily maximum intake, based on a 2000-calorie daily diet. (32) The new Nutrition Facts label requirements were due to take effect in July 2018; however, the FDA recently issued a proposed rule extending compliance dates to 2020 for large manufacturers and 2021 for smaller companies. (33)

      The USDA also issues policies and regulations to encourage healthier diets and prevent obesity. Every five years, the USDA, together with the Department of Health and Human Services ("HHS"), is required to publish a report containing dietary guidelines based on the preponderance of current scientific and medical knowledge. (34) The USDA also administers the National School Lunch Program, a meal program providing low-cost or free nutritionally balanced...