Parens patriae: a flawed strategy for state-initiated obesity litigation.

• Author: Hoke, John B.

TABLE OF CONTENTS INTRODUCTION I. HISTORY OF PARENS PATRIAE AND DEVELOPMENT OF THE MODERN DOCTRINE A. Modern American Doctrine of Parens Patriae B. Parens Patriae and Tobacco Litigation II. INADEQUACIES OF PARENS PATRIAE AS A STRATEGY FOR OBESITY LITIGATION A. Deficient Causation 1. Strong Causation in Early and Modern Parens Patriae Jurisprudence 2. Strong Causation in State-Initiated Tobacco Litigation 3. Causation Discrepancies Between Tobacco and Obesity Litigation B. Parens Patriae and Its Geographic Limitations 1. Economic Harms and the Geographic Limits of Parens Patriae 2. Environmental Harms and the Geographic Limits of Parens Patriae 3. Health-Related Harms and the Geographic Limits of Parens Patriae 4. Geographic Limits in Parens Patriae Obesity Litigation 5. Massachusetts v. EPA and the Geographic Limitations of Parens Patriae C. Public Nuisance as the Underlying Tort for Parens Patriae Actions 1. Public Nuisance and Its Historical Background 2. Public Nuisance and Tobacco Litigation 3. Products Liability Jurisprudence and Public Nuisance 4. Environmental Jurisprudence and Public Nuisance 5. Modern Public Nuisance and Parens Patriae Obesity Litigation D. Why Tobacco Litigation Settled III. ALTERNATIVES TO PARENS PATRIAE OBESITY LITIGATION A. Other Attorney General Tools B. Subrogation C. Legislation CONCLUSION INTRODUCTION

In the United States today, roughly 36 percent of adults twenty years or older are obese, and 6.3 percent are considered extremely obese. (1) Since 1960, the number of adults who are obese has doubled. (2) An estimated 300,000 deaths annually are linked to obesity, (3) and the medical cost associated with treating obesity and its related diseases is a staggering $147 billion per year. (4) Obesity is now considered an epidemic, and unlike smoking, the nation's leading cause of preventable death, (5) the number of obese citizens is rising. (6)

Government has responded to this crisis in a variety of ways. Congress proposed bills such as the Healthy Lifestyles and Prevention America Act, (7) the Fit for Life Act, (8) and the Healthy Foods for Healthy Living Act. (9) Several states passed bans on the sale of junk food and soda in public schools. (10) Washington, D.C. recently enacted the Healthy Schools Act, a sweeping piece of legislation aimed at improving the quality of food served in public schools, encouraging physical activity, and promoting nutrition education. (11) Likewise, various executive agencies recently developed programs aimed at curbing the obesity epidemic. The Centers for Disease Control established the Division of Nutrition, Physical Activity and Obesity. (12) The U.S. Department of Agriculture began its "Eat Smart. Play Hard." campaign, (13) and perhaps most famously, First Lady Michele Obama created the "Lets Move!" initiative. (14)

Paralleling the proliferation of legislative and executive responses to the obesity epidemic are "obesity lawsuits," in which the plaintiffs allege that food producers and restaurants are responsible for making them overweight and unhealthy. (15) Courts tend to be skeptical of such obesity suits, (16) and Congress famously responded to such litigation with the American Personal Responsibility in Food Consumption Act, also known as the "Cheeseburger Bill." (17)

Perhaps in response to the failure of private-party litigation, health and nutrition advocates have urged state attorneys general to sue the food industry under their parens patriae authority. (18) Under the common law doctrine of parens patriae, a state attorney general may bring an action against a party that has harmed the health or economic well being of the citizens of the attorney general's state. (19) Proponents of attorney general-initiated parens patriae obesity suits look to the tobacco litigation of the mid-1990s as a template for such obesity litigation. (20) In the tobacco cases, state attorneys general sued the tobacco industry under their parens patriae authority to recover funds spent by their states in connection with treating smoking-related illnesses. (21) The lawsuits resulted in one of the largest civil settlements in United States history, (22) in which the tobacco industry agreed to pay the intervening states nearly $10 billion per year for an indefinite period of time. (23) Because the tobacco lawsuits settled, however, the legal theories underlying the litigation went untested. (24) Thus, one should not presume that tobacco litigation would provide an adequate template for state-initiated obesity lawsuits.

Nonetheless, some advocates for attorney general-led obesity litigation argue that states could pursue a similar strategy in obesity litigation and sue the food industry to recoup money states spend on treating their citizens' obesity-related illnesses. (25) This Note, however, contends that such an argument overlooks critical limitations of the parens patriae doctrine. This Note will address these limitations and explain why proponents of state-initiated obesity litigation should not expect to rely on the tobacco litigation as a template for their suits. In doing so, this Note will ultimately argue that state attorneys general will likely not have standing under parens patriae for obesity litigation.

Part I of this Note discusses the origins of parens patriae and how state attorneys general relied upon this doctrine in tobacco litigation. Part II.A of this Note suggests that, unlike tobacco litigation, there is no adequate causal link between the conduct of the food industry and the obesity-related costs ultimately incurred by states to justify standing under parens patriae. Part II.B of this Note proposes that any action against the food industry under parens patriae would violate the doctrine's geographic limitations. A state may only bring an action under parens patriae for harms that its citizens experience that are causally connected to their citizenship in that intervening state, and no such connection would exist in obesity litigation. Part II.C of this Note argues that the underlying tort upon which state attorneys general based their tobacco suits, public nuisance, is not an adequate tort for parens patriae obesity litigation. Taken together, these factors suggest that state attorneys general will not be able to bring obesity suits under their parens patriae powers. (26)

1. HISTORY OF PARENS PATRIAE AND DEVELOPMENT OF THE MODERN DOCTRINE

   Parens patriae, which translates to "parent of the country," (27) is a common law doctrine originating in England that, at its inception, allowed the king to assume a general guardian role over his subjects. (28) Initially the Crown used this legal theory to protect minors and incompetents, but parens patriae later evolved into a "sweeping common-law theory of Prerogative Regis" whereby the king had broad authority to regulate and control "almost everything" that happened within his jurisdiction. (29) American courts slowly adopted parens patriae, and over time it evolved into a catchall cause of action that lacked clear doctrinal parameters. (30) One scholar noted that the expansion of parens patriae occurred "incrementally and almost stealthily," (31) and that the body of law was, for a time, a "precedential miasma." (32) Thus, for much of its history as part of American jurisprudence, the boundaries and appropriate uses of parens patriae have been poorly defined.

   1. Modern American Doctrine of Parens Patriae

      The Supreme Court established the parameters of the current formulation of parens patriae in Alfred L. Snapp & Son, Inc. v. Puerto Rico. (33) In Snapp, Puerto Rico asserted claims against Virginian orchardists for refusing to hire Puerto Rican workers in violation of a federal statute. (34) Puerto Rico alleged that such a refusal amounted to economic discrimination that harmed the Puerto Rican economy and thereby granted Puerto Rico standing under parens patriae. (35) Responding to this claim, the Court defined the elements necessary to maintain standing under parens patriae:

      [A] State must articulate an interest apart from the interests of particular private parties, [that is], the State must be more than a nominal party. The State must express a quasi-sovereign interest ... [such as its] interest in the health and well-being--both physical and economic--of its residents in general.... ... Although more must be alleged than injury to an identifiable group of individual residents, the indirect effects of that injury must be considered as well in determining whether the State has alleged injury to a sufficiently substantial segment of its population.... ... [T]he State has an interest in securing observance of the terms under which it participates in the federal system. In the context of parens patriae actions, this means ensuring that the State and its residents are not excluded from the benefits that are to flow from participation in the federal system. (36) Although the Court refrained from defining precisely what constitutes a quasi-sovereign interest, and instead held that this was to be determined on a "case-by-case" basis, (37) a general rule emerged. The rule recognizes that states have certain quasi-sovereign interests and, under some circumstances, they will have standing to intervene under their parens patriae authority to vindicate those interests. (38) A state will not, however, have standing under parens patriae when intervening as a nominal party to protect its proprietary or private interests. (39) Thus, on its face, the parens patriae doctrine, as the Court defined it in Snapp, seems to grant state attorneys general broad authority so long as a state can articulate a sufficient sovereign or quasi-sovereign interest. There are, however, other doctrinal limits to parens patriae that the Court did not address in Snapp. These limits, as applied to obesity litigation, are the focus of this Note. (40)

   2. Parens Patriae and Tobacco Litigation

      Tobacco litigation seemed to fit...