Archive for September, 2015

Campaigns to Ban Food Marketing are a Dead End: Supreme Court

September 4th, 2015

Regulating food companies marketing to children has had a mantra-like appeal to advocates of reductions in childhood obesity. In 2004, Congress directed the Centers for Disease Control and Prevention to examine the role of food marketing in the development of childhood obesity. The result was a thorough report from the Institute of Medicine in 2006,  Food Marketing to Children and Youth: Threat or Opportunity.

Subsequently, advocates began to talk about specific restrictions. Dr. Marion Nestle, for example, proposed restrictions or bans on the use of cartoon characters, celebrity endorsements, health claims on food packages, stealth marketing  and marketing in schools. Dr. Nestle held up some 50 other nations that restricted food marketing to children, “Although such actions have not eliminated childhood obesity-rates in these countries are increasing, although they remain lower than the US rate- they may help to slow current trends”.

While the experience of other countries is informative, the United States has different legal principles. Of particular relevance is the evolving jurisprudence around the First Amendment and its application to commercial speech. Over several decisions, the Supreme Court has expanded First Amendment protections for corporations whose speech (read marketing) comes under governmental regulation. This summer the Supreme Court has expanded the scope of this protection. This has raised a host of issues surrounding the future of governmental restrictions on corporate speech.

The case, Reed v. Town of Gilbert Arizona,  involved a code regulating signs put up in the township according to content, size and time restrictions. A case challenging the code was brought by a church who used lawn signs to indicate where their services were being held. The code was struck down by all nine judges, although there were different rationales from different judges.

The majority of the justices agreed with Justice Clarence opinion. Under his analysis, the First Amendment applies to the states, including municipal governments. Content-based speech, which is based on its communicative content, i.e. the topic discussed or the idea or message expressed , is presumptively unconstitutional and may only be justified if the government can prove that they are narrowly tailored to serve compelling state interests. When the town of Gilbert argued that such restrictions are needed for public safety, the Court rejected the argument that signs of ideological content were different, in terms of public safety, than are temporary signs. This is the problem of the over-inclusiveness and under-inclusiveness in such First Amendment cases. (For more information on this component, see my post on the proposed New York City ban on large soda cup sizes.)

Justice Breyer, who concurred in the Court’s opinion, opined that content-based speech regulation by the government should not always require the strict scrutiny. Breyer observed, “virtually  all governmental activities involve speech, many of which involve the regulation of speech”.  “And,” Justice Breyer added, “to hold that such content discrimination triggers strict scrutiny is to write a recipe for judicial management of ordinary government regulatory activity.” He offered several examples: securities disclosure regulation, energy conservation labeling, advertising prescription drugs, the confidentiality of patients’ medical data, commercial airplane safety briefings, and, even requiring petting zoos post signs recommending handwashing on exiting the zoo. He might have added  the nutrition label, as well.

It is also worthwhile to review what Chief Justice John Roberts had to say, as obiter dicta, on hypothetical regulation for the purpose of obesity prevention, in the landmark ruling upholding the Affordable Care Act.

Bottom line: efforts to restrict food advertising to children are bound to fail without much more compelling evidence of a causal and exclusive relationship to the development of mortality and morbidity as adults, than we now have. Proposed restrictions, like those proposed by Dr. Nestle, would certainly be struck  down by the courts. But, the issue would not even get that far. The regulatory work would have to be carried out by the Federal Trade Commission and the Food and Drug Administration. Congress would surely yank their funding for such efforts if they proposed such regulations. It is time for those of us who want to slow the rise in childhood obesity rates, as well as in adult rates, to realize the approach of regulating food marketing is a dead end.


California Obesity Rates Spike

September 3rd, 2015

California is seeing a huge spike in obesity cases. The UCLA Center for Health Policy Research completed a survey of more than 48,000 Californian adults, teen and children. In the most recent survey, more than one in four California adults were considered obese, about 27% compared to 19% in 2001. This rise comes in the face that another study showed California adults are doing more walking and eating more daily servings of fruits and vegetables. About 9% of respondents said they had been diagnosed with diabetes, compared with 6.6% in 2003. About 39% reported eating fast food at least twice a week in 2014, compared to 37% in 2007. About 31% of California residents living in poverty; less than a quarter of the richest 50% of adults in California were obese. On a typical weekday, 46.5% of children aged 2-11 spend at least 2 hours a day watching TV, playing computer games or talking with friends. On weekends, fully 71% of children engaged in sitting.

What Leveling off in China?

September 3rd, 2015

An article in the International Journal of Obesity reports that BMI and overall obesity has been leveling-off but waist circumference and abdominal obesity, which are independent risk factors for cardiovascular disease, have continued to rise. The authors opine that the obesity transition epidemic in rapidly developing countries may be much faster than in Western societies.

De-bunking the ‘leveling off’ of the obesity epidemic

September 3rd, 2015

As you are probably aware, several sources have been pointing recently to a levelling off in the obesity epidemic. A new study published in the International Journal of Obesity should raise some doubts. The authors took a deep look at studies purporting to find a leveling off. However, they found, “Decreasing participation rates, the use of reported rather than measured data and small sample sizes, or lack of representativeness, do not seem to explain breaks in the obesity epidemic…However, follow-ups of short duration may, in part, explain the apparent break or decrease in the obesity epidemic. On the other hand,  a single focus on Body Mass Index is likely to mask a real increase in the obesity epidemic. And, in both children and adults, trends in waist circumference were generally suggesting an increase, and were stronger than those reported for trends in BMI…Reported studies presenting a break were mostly of short duration. Further, focusing on trends in waist circumference rather than BMI leads to a less optimistic conclusion: the public health problem of obesity is still increasing.” (I have 5 or so posts on the so-called leveling off since 2010. Search “leveling obesity epidemic” to access them.)


What Freshman 15?

September 3rd, 2015

Obesity Panacea has done a great service in de-bunking the myth that college freshmen will gain an average of 15 pounds over the course of two semesters. Their blog points out that, to gain 15 pounds, students would need to consume an additional 1,750 calories each week, almost one full day’s worth ofc calories.


Mortality from Bicycle Accidents

September 3rd, 2015

Physical activity is perhaps the most frequently given advice for weight loss. But, as we have reported here, there are rarely-mentioned adverse events from some forms of physical activity. In August, the CDC’s Morbidity and Mortality Weekly Report showed an alarming increase in mortality rates for cyclists aged 35-74 years old. The mortality rate, while down overall, increased nearly three-fold in this age group. Males accounted for 87% of all bicycle deaths in 2012.


Look AHEAD provides insights on the role of genes in weight loss

September 3rd, 2015

While the Look AHEAD Clinical Trial was discontinued some time ago, and while some the interpretations of the study remain controversial, continuing studies are showing some interesting interactions between behavior and genes. Jeanne Mc Caffery and colleagues have published one study showing that variations in the FTO and BDNF genes predicted weight regain across treatment arms.  Another study from a number of over-lapping researchers shows that variations in genes can affect the frequency of eating episodes and their composition as well. Click here for Dr. Arya Sharma’s recent post on a landmark study establishing how the FTO gene works.


Over-Optimism in Primary Care?

September 3rd, 2015

A survey of primarily European health care professionals has shown that few think weight loss targets of 5% to 10% were achievable with medical management. Alternatively, there was high confidence in public health strategies. About a quarter reported that they had difficulty raising the issue of body weight with their patients. This was true even among obesity and diabetes specialists. Interestingly, many felt the causes, while being individual to each patient, included genetics, lack of effective treatments, dysfunction of the physiological mechanisms controlling hunger and appetite. 80% agreed that obesity should be classified as a disease.

Significantly, most health care professionals felt competent in discussing weight loss with their patients but only a minority reported that their patients were successful with achieving their weight loss goals. The authors describe this as “over-optimism.” No fooling.