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The Obesity Epidemic: Towards A THE OBESITY EPIDEMIC: TOWARDS A REGULATORY FRAMEWORK TO COMBAT OBESITY IN NEW ZEALAND By Sarah Barker A dissertation submitted to the Victoria University of Wellington in partial fulfilment of the requirements for the degree of Master of Laws Victoria University of Wellington 2011 2 ABSTRACT There is currently a global obesity epidemic and New Zealand, like many other countries, has high levels of obesity both in the adult and child population. This presents a threat to society due to the risk to individual and population health, and the impact on public services. A major contributor to obesity levels is the nature of the current eating environment; one in which various factors make it natural and easy to lead an unhealthy lifestyle. By targeting these, the law could help to combat the obesity epidemic. Historically, attempts to address obesity through legal means have encountered opposition on paternalistic grounds. Given the threat that obesity poses, both to the individual and society as a whole, a certain level of paternalism is justified to control it, particularly when it comes to the protection of children. Currently, legal measures to control obesity can be implemented in New Zealand without resorting to hard paternalism. The law should be used to increase regulation of the food industry, rather than using it to control food intake directly. This is a softer paternalistic approach and includes changes to labelling requirements and the regulation of the marketing to mandate for improved information to be disseminated about food products. It also includes the implementation of a universal nutrient profiling system to overcome any problems associated with deciding which food products should be subject to increased regulation. Change to the eating environment in New Zealand could also be facilitated via the implementation of a fat-tax to address the price inequalities between healthy and unhealthy food products. Currently the food industry in New Zealand is minimally regulated by statute, with an emphasis on food safety and hygiene. This is no longer appropriate given rising levels of obesity. Furthermore, it is no longer appropriate that food product marketing be regulated by the industry, given its contribution to obesity levels, and the obvious conflict of interest. 3 Notwithstanding that obesity control in New Zealand can presently be tackled using such an approach, a higher level of paternalism is necessary for measures aimed at children. Therefore, in the current food environment, paternalistic health laws, designed to protect children, are justified on the basis of the risk to children, and the need to protect them. Additionally, the need for a more paternalistic approach to obesity control generally must be kept under continual review, particularly in light of studies linking food with addiction. Although food litigation has been initiated against food companies by the obese in other jurisdictions, and has had an impact on the eating environment, this is not a realistic prospect in New Zealand, even as a last resort, in the absence of appropriate regulation. WORD COUNT: 38,194 4 CONTENTS ABSTRACT ............................................................................................................2 I INTRODUCTION .................................................................................... 12 II WHAT IS THE OBESITY EPIDEMIC? ................................................ 14 A Definition of obesity ..................................................................... 14 B Causes of obesity ..........................................................................14 C Extent of the epidemic; obesity statistics ..................................... 15 1 International statistics ......................................................16 (a) Statistics for 2005 .................................................16 (b) Projected statistics for 2015 ..................................16 2 New Zealand .....................................................................16 (a) Statistics for 2002 – 2005 .....................................16 (b) Statistics for 2006/07 ............................................16 (c) Projected statistics for 2015 ..................................17 D Consequences of obesity ..............................................................18 1 Health conditions associated with obesity ........................18 2 Monetary costs of obesity ..................................................20 3 Other societal costs ...........................................................20 III PATERNALISM AND THE ROLE OF THE LAW IN CONTROLLING OBESITY ....................................................................23 A How do you define paternalism ...................................................23 5 B Paternalism and obesity control ..................................................25 C The justification for the use of paternalistic, measures to control obesity ...........................................................28 D Obesity measures, paternalism, and the health of the individual and population ............................................................28 1 Is obesity a public health law issue? .................................29 (a) The analogy between the use of tobacco and the consumption of unhealthy foods ..............31 (b) Is the tobacco analogy an appropriate one to make? ........................................................35 E Obesity measures, paternalism and the lack of autonomy in current eating decisions .........................................35 1 Autonomy and the eating environment .............................35 2 Autonomy in eating decisions and the nature of some food products ...........................................................38 (a) The Food Industry and the hijack of anti-paternalistic arguments ...................................39 IV CONTROLLING OBESITY AND THE CREATION OF A HEALTHY ENVIRONMENT .............................................................41 A The need to address the causes of obesity and the creation of a healthy environment ...............................................41 B Encouraging healthy choices; New Zealand law and the promotion of a healthy environment ......................42 6 V THE PROMOTION OF A HEALTHY ENVIRONMENT THROUGH THE REGULATION OF THE FOOD INDUSTRY - LABELLING OF FOOD PRODUCTS .........................44 A Food product labelling in New Zealand .....................................44 1 The Food Act 1981 ............................................................45 B Food product labelling regulation in other jurisdictions .................................................................................48 1 The regulation of food product labelling in the United States ...........................................................48 2 The regulation of food product labelling in Canada .........................................................................49 3 The regulation of food product labelling in the United Kingdom .....................................................49 C The future of food product labelling in New Zealand ...............51 1 A more prescriptive labelling system for New Zealand .....................................................................52 (a) The scope of food product labelling .....................53 (i) Nutrient profiling for New Zealand ......................................................54 (b) Not everyone makes healthy decisions ................................................................57 (c) The specific content and presentation of food labels .........................................................58 (d) International compliance and standardisation ......................................................59 (e) Increased compliance costs for businesses ..............................................................60 7 (f) Industry opposition, lobbying and public opinion .................................................61 2 Health Warnings ...............................................................62 (a) Food products and health warnings ......................62 (i) Soft drinks and health warnings ...............63 (ii) Health warnings and non food products ............................................64 (b) Why not use health warnings on food products ........................................................65 (i) Past attempts to impose health warnings on products other than tobacco in New Zealand ............................65 (ii) Would health warnings discourage individuals; warning fatigue? ........................................66 (iii) Should a new labelling regime mandate for health warnings on certain food products? ...................................................67 VI THE PROMOTION OF A HEALTHY ENVIRONMENT THROUGH REGULATION OF THE FOOD INDUSTRY – CONTROLLING THE MARKETING OF CERTAIN FOOD PRODUCTS ........................................................69 A Why have restrictions on the marketing of certain food products in New Zealand?...................................................69 B The influence of food product marketing and obesity ....................................................................................70 C Current regulation of food product marketing in New Zealand ..........................................................71 8 1 The limits of self-regulation ..............................................75 2 Marketing and individual autonomy .................................78 D Regulation of the marketing of food products
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