Managing obesity from a legal perspective

August 29, 2014

Obesity is a public health and budget problem that cannot be ignored

SchillerRising to the forefront of public health law is the problem of obesity. While it's not a topic many want to discuss, it's one of the more serious problems facing our country today. About a quarter of our youth are too heavy to serve in the military; almost two thirds of our population is considered overweight or obese; and childhood obesity affects nearly 20% of our youth. The AMA now considers obesity a disease, and courts are inching toward calling it a disability protected by the Americans with Disability Act (ADA). 

Plans seek solutions to the obesity disease >>

There is no question that obesity increases the risk of many other medical problems such as type 2 diabetes, high blood pressure, heart disease, some forms of cancer, sleep apnea, acid reflux and muscular skeletal problems (often back, hips and knees) to name a few. These health issues require expensive medical treatments, not to mention work-related costs.

The cause of obesity is in part a function of lifestyle choices. Managing obesity is complicated and requires addressing issues such as freedom of choice, personal responsibility, freedom of speech (advertising) and public policy, and we have done a poor job dealing with it to date.

The Affordable Care Act (ACA) takes a small step toward a solution, but nothing more. It requires health insurance plans to offer screening and counseling. The specific approaches are to be determined by each state, but these do not tackle the epidemic at its root-children and young adults eating too much high-fat, high-salt and high-sugar foods combined with a sedentary lifestyle. Some areas of the country (New York City, for example) have developed early intervention and education programs designed to combine physical movement with education about nutrition. But the food industry is a formidable foe, spending more than $4 billion dollars annually on advertising-much of it directed toward children.   

Assist populations with obesity prevention >>

The ACA takes a small step toward a solution, but nothing more. It requires health insurance plans to offer screening and counseling. The specific approaches are to be determined by each State, but these do not arrest the epidemic at its root-children and young adults eating too much of high fat, high salt and high sugar content foods combined with a sedentary lifestyle. Some areas of the country (New York City, for example) have developed early intervention and education programs designed to combine physical movement with education about nutrition. But the food industry is a formidable foe, spending more than $4 billion dollars annually on advertising-much of it directed toward children.    

Many corporations are experimenting with wellness programs that fall outside of insurance plans. But gym memberships-unless prescribed by a doctor to treat a specific medical condition-are not tax-free to the employee. Nor are company-paid health seminars or even cash incentives for weight loss. Often employees are surprised to learn they are using a taxable benefit. The rule is that is the benefit does not qualify as an employer-provided benefit if it cannot be provided on a tax-free basis. To be a tax-free benefit, the revenue code requires the treatment of a medical condition or preventive screenings. Benefits that might help an employee to stay healthy apparently do not qualify.

Some countries have recently introduced “Fat Taxes.” In 2011 Denmark introduced a tax on foods containing more than 2.3% saturated fats. Hungary followed suit with a tax on products with high sugar, salt and caffeine.  Finland and France also introduced taxes on foods determined to be unhealthy, although France taxes soft drinks but left wine alone. Time will tell whether taxing unhealthy foods results in anything more than additional government revenue which could be used to pay for healthcare.   

The legal, legislative and public policy issues related to the problem of obesity are only in their infancy. Obesity is a public health and budget problem that cannot be ignored. It is admittedly a complicated problem, and while the ACA took a small step forward, it falls short of a truly well thought-out approach that is necessary. But given the already high portion of GDP being spent on healthcare services, we ignore this obvious and looming crisis at our peril.

Schiller is a partner with the Health Law Practice Group of Cleveland-based Walter | Haverfield LLP.