"Fat taxing" our way to a healthier world.

• Author: Doucett, Sarah

1. INTRODUCTION

   Obesity has become a global public health emergency growing at a rate that threatens both international health and economic development. (1) Food technology has shifted from locally grown whole foods to the mass preparation of highly processed foods that are low in nutrients, inexpensive, hyper palatable and convenient. (2) In an attempt to minimize the obesity epidemic, various global interventions and policies have been implemented. (3) However, international law currently does little beyond offering voluntary recommendations because many citizens feel their government should not interfere with an individual's choice with respect to things so basic as food and exercise. (4) The globalization of public health and the structure of the international system produce the need for nation-states to cooperate in forming and implementing international law that comprehensively addresses these public health threats. (5)

   This Note will explore how the international community must use legal intervention through a coordinated and comprehensive "fat tax" measure in order to address the obesity epidemic since self-regulation and voluntary recommendations have done little to reverse the current health trends. (6) Part II of this Note will discuss the pertinent regulations that have been implemented in attempts to combat rising health problems across the world. (7) Part III of this Note will focus on the role of globalization in encouraging the obesity epidemic and the problems established international organizations face in addressing obesity. (8) Next, Part IV of this Note will provide prescriptive ideas to implementing an international "fat tax" under the agreements of the World Trade Organization. (9) Finally, Part V of this Note will conclude by underscoring that a "fat tax" could be a potential catalyst for health reform, representing a crucial opportunity to help reverse the growth of obesity both in the United States and abroad. (10)

2. HISTORY

   1. Prevalence of Overweight and Obesity

      There are now more overweight and obese people across the globe than there are those suffering from malnutrition and hunger, making obesity a global epidemic. (11) With the introduction and growth of globalization, obesity has spread from the developed world to the developing world as well. (12) Worldwide obesity has nearly doubled since 1980 with more than 1.4 billion adults either overweight or obese as of 2008. (13) The prevalence of obesity also reaches children, with more than 42 million children under the age of five considered overweight as of 2013. (14) Most startling of all is that these numbers are only expected to continue to rise. (15) The World Health Organization (WHO) has projected that by 2015 approximately 2.3 billion people will be overweight, with more than seven hundred million of them obese. (16)

      Due to the rise of obesity, noncommunicable diseases (NCDs) now represent the world's most serious global health challenge. (17) Already, more than half of deaths throughout the world are attributable to NCDs. (18) Without intervention, deaths from NCDs are expected to increase seventeen percent by 2015 and represent nearly seventy-five percent of deaths by 2020. (19) Besides the increased risk of death and disease, obesity pose a significant threat to society because of the increased health care costs, reduced social status, and hindrances to education and employment attainment that are associated with and result from obesity. (20)

   2. Legislation Introduced to Combat Obesity

      Currently, there are numerous policies and interventions that have been implemented by various governments around the world in an attempt to combat the obesity epidemic. (21) Various countries have attempted to enforce their own policies at the individual, state, and national levels. (22) Additionally, there are a multitude of international legal documents and global strategies that outline international goals to attempt to ease the challenges of overweight and obesity. (23) Further, more and more policies and agendas are being contemplated, developed, and studied, as obesity becomes more of a problem. (24)

      1. Self-Regulation

         Self-regulation focuses on limiting intake from fats and sugars, increasing consumption of fruits and vegetables, and engaging in physical activity. (25) There is a tendency to blame the individual for the rise of overweightness and obesity because it is ultimately the individual's choice to decide what to eat and whether to exercise. (26) This concept of personal responsibility acts as the centerpiece for the arguments against governmental action, intrusion, or regulation of the food industry. (27)

         Self-regulation is a tempting option because it eliminates the expensive task of designing guidelines, monitoring society and enforcing regulations and leaves responsibility to the individual. (28) As a bonus, particularly for governments, it "reduces industry resistance against regulatory intervention." (29) Trying to change an individual's behavior, however, has proven both insufficient and unsustainable. (30) Superseding environmental conditions such as access, pricing, portion sizes, marketing and advertising override one's physical and psychological system by making it difficult to be responsible. (31) The private nature of eating and exercise also prevents the public and the affected parties from receiving the adequate attention they so desperately need. (32) Therefore, there are philosophical, political and industry differences about whether governments should intervene for the health of its citizens or leave it to them to combat on their own. (33)

      2. National Educational Policies

         The Global Strategy promotes school policies adopting healthy diets and physical activity in addition to adult literacy and education programs aimed at informing society about the risks of obesity. (34) The implementation of physical activity programs in schools and the promotion of walking and running tracks as well as the use of pathways are other ways to promote physical activity both locally and nationally. (35) These local regulations attempt to make regular physical activity and healthier dietary choices available, affordable, and accessible to all, particularly to those with financial difficulties. (36)

         Governments may "attempt to use education and public information campaigns to promote healthy eating and physical activity." (37) Education campaigns are local in scope, limiting their reach to a community-wide level. (38) Only recently, under the Lets Move! campaign championed by First Lady Michelle Obama, have educational policies on healthy diets and physical activity become more national in scope. (39)

      3. Marketing and Advertising

         Escalating investments in food advertising demonstrate the extent to which the food industry relies on marketing in order to influence consumer behavior. (40) Food manufacturers spent over USD1.6 billion on marketing food and beverages to children and teenagers in the United States in 2006, but less than 1% of that total was spent on advertising for fruits and vegetables. (41) Additionally, "[f]or every dollar the WHO spends on trying to improve the nutrition of the world's population, USD500 is spent by the food industry on promoting processed foods." (42) Therefore, the WHO emphasizes the use of marketing, advertising, sponsorships and promotions as means to combat obesity. (43)

         The Global Strategy on Diet, Physical Activity and Health (Global Strategy) suggests implementing marketing and advertising strategies aimed at promoting better food choices and discouraging unhealthy messages through regulations to curb the use of advertising and marketing to exploit children. (44) Attempted local and national policy options include the limiting of toy giveaways with unhealthy kids' meals, creating healthy checkout lanes and media messages to promote consumer awareness about fitness and healthy nutrition. (45)

      4. Labeling

         Food labeling aims at providing customers with information that allows them to make better-informed and healthier choices. (46) For example, the Nutrition and Labeling Education Act (NLEA), passed in the United States in 1990, requires food manufacturers to provide food labels for most food items sold in retails stores and requires nutrition facts on the labels of all processed foods. (47) These mandatory labels "bind manufacturers of a given product to provide standardized information," allowing the consumer to make essential purchasing and consumption choices. (48)

         The WHO proposes requiring accurate, standardized and comprehensive information on the content of food items internationally. (49) However, packaged foods are often covered with labels, including mandatory nutritional information, ingredient lists and allergens, as well as voluntary labels, such as production methods. (50) Voluntary labels are utilized by manufacturers to distinguish their product from other similarly situated and competing products. (51) However, these labels only help consumers if they are able to locate and compare the product carrying the label with others carrying the same label. (52) Additionally, levels of comprehension vary significantly among consumers due to their age, level of education and national origin, which makes the sheer number of labels intimidating and often misleading. (53)

         The most attention has been given to national mandatory labeling policies, particularly Front-of-the-Package (FOP) labels. (54) These FOP labels would supplement the nutritional information typically located on the back or side of the package by providing a signal on the principal display surface. (55) This would include simplified information on the key nutritional aspects or characteristics of the food. (56) Many proposals for FOP labeling have been introduced at the national level in hopes that it would have a greater impact on consumer choices. (57)

         There has also been a recent effort to require restaurants...