Obesity

Obesity in the United States is steadily increasing despite widespread and expensive public education campaigns intended to combat the problem. Although statistics vary, 2016 data from the Centers for Disease Control and Prevention (CDC) showed that the South had the highest prevalence of obesity (32.0%), followed by the Midwest (31.4%), the Northeast (26.9%), and the West (26.0%). Every state had adult obesity rates above 20%.

One reaction that began years ago in response to the growing problem of obesity was the filing of “obesity lawsuits,” particularly against fast food companies. Most states, however, have banned such litigation under what is sometimes referred to as “commonsense consumption” laws. Still, some experts believe that many of the changes made in the past several years to the manufacture, packaging and marketing of foods have been intended to address the complaints found in obesity lawsuits. Plaintiffs in obesity litigations often allege that the food purveyor used false advertising, failed to warn consumers of the potential harmful ingredients in their food, or were selling food that may be addictive. Some plaintiffs claim that they were unaware of the calorie counts of the food, and that by contributing to their obesity the food added to the possibility that they would suffer from diabetes, high blood pressure and other ills. Litigants have contended that the food at issue was unsafe for consumption because of its nutritional content, or tried to prove the company’s intent to sell the food by citing specific advertisements or public statements.

Legal experts point out that to prevail, plaintiffs must convince the courts that if appropriate warnings had been issued about the food they ate, they would have chosen a healthier alternative --- something that is very hard to prove. In a landmark lawsuit against McDonalds, Perlman v. McDonald's Corp., 237 F. Supp. 2d 512 (S.D.N.Y. 2003), the judge stated in his dismissal of the case, “[i]f consumers know (or reasonably should know) the potential ill health effects of eating at McDonald’s, they cannot blame McDonald’s if they, nonetheless, choose to satiate their appetite with a surfeit of supersized McDonald’s products.” Nevertheless, plaintiffs’ attorneys are actively seeking ways to bring successful class action suits against food companies, particularly fast-food entities.

Background

Obesity is a global problem. The World Health Organization (WHO) reported on its website that worldwide obesity nearly doubled from 1980 to 2008. The WHO also stated that in 2016 more than 1.9 billion adults aged 18 years and older were overweight; of these, over 650 million were obese. Expressed differently, 39% of adults aged 18 years and over were overweight in 2016 and 13% were obese. The WHO reported that most of the world's population lives in countries where overweight and obesity kills more people than underweight. Many low- and middle-income countries must face infectious diseases and undernutrition while at the same time experiencing a rapid and significant increase in non-communicable disease risk factors such as obesity. In fact, undernutrition and obesity often coexist in the same country, community or household. The dietary and physical exercise patterns of children in these countries, which can involve high-fat, high-sugar, high-salt, nutrient-poor food and limited exercise, adds to increases in childhood obesity while not solving undernutrition issues.

Obesity increases the risk of a number of noncommunicable diseases in adults, including heart disease and stroke, diabetes, osteoarthritis and certain cancers.
Childhood obesity increases the risk of adult obesity while presenting risks of increased incidence of bone fractures, hypertension and markers for early heart disease, insulin resistance and psychological issues. A Duke University Health research study reported in 2016 that childhood obesity continued its three-decade upward trend, noting that 35.1 percent of children in the U.S. were overweight in 2016, a 4.7-percent increase over 2014 figures.

Consumption of too much food is a main cause of obesity, and total food intake in the U.S. has gradually increased over time. A considerable amount of the increase has consisted of carbohydrates, particularly sweetened drinks, although meat and fat consumption has also gone up. Fast food has been identified as contributing to the problem, as has fructose intake which has been associated with promoting obesity.

Most people live far more sedentary lifestyles than earlier generations, depending on cars instead of walking or biking, enjoying labor-saving devices and engaging in physically passive forms of entertainment. Jobs have become more sedentary. The CDC reports that only about 21% of adults meet the CDC-recommended physical activity guidelines and that fewer than three in 10 high school students get an hour of daily activity, even though the health benefits of physical activity are undisputed. Inactivity has been associated with heart disease, diabetes, stroke, depression and cancer. CDC experts also make the point that despite the public enthusiasm for blaming diary, wheat, fat, sugar, red meats and other food ingredients, weight gain and loss is primarily a function of calories eaten versus calories expended.

Injuries and Damages

The medical consequences of obesity are many and severe. The list includes high blood pressure and related heart diseases, high cholesterol and triglycerides, liver and gallbladder disease, diabetes, stroke, osteoarthritis, sleep problems, respiratory issues, certain cancers and infertility and even premature death and disability.

The health issues associated with obesity can also lead to increased employer costs in the form of, for example, decreased productivity, impaired activity levels, anxiety, depression, and lost work days. Direct costs to employers may include increased expenditures for items such as office chairs that are comfortable for a person weighing up to 600 pounds, company cars that can safely accommodate especially large adults, heavy-duty toilets and expanded office space to accommodate obese workers.

Legislation and Regulation

In 2013, the American Medical Association (AMA) classified obesity as a disease. Body mass index (“BMI”) is the general measure used to define obesity. If an individual has a body weight at least 20% higher than it should be, or a BMI of 30 or over, he is considered to be obese. Some experts criticize the BMI measurement as simplistic and flawed, noting that BMI cannot measure the difference between fat and muscle, which is heavier than fat, and does not tease apart the different types of fat, each of which may affect an individual’s metabolism differently.

Some industry observers believe that the “disease” classification might result in better medical care and -- ultimately -- fewer obese Americans, but others fear that increased regulation and litigation might lead to more spending and public health impairments related to obesity. Some experts contend that obesity has been defined as a disease simply on the basis that the social benefits are perceived to outweigh the economic costs of assigning that definition. A 2014 Australian medical journal article questioned whether the AMA’s decision to classify obesity as a disease was correct, noting that such labeling may encourage a lack of personal responsibility, and that perhaps it should be asked who benefits most from considering obesity a disease.

Liability and Insurance

While continued insurance coverage for obesity treatment is uncertain under the current administration, as of the date of this publication a selection of obesity treatments are insured under most health insurance plans. The form of treatment varies, but figures suggest that bariatric surgery coverage is required in about half the states. Nutrition counseling and other weight loss programs are the coverage options in some states. Generally, consumer cost-sharing and premium surcharges for obesity are prohibited.

Some researchers argue that as long as insurance premiums are not risk rated for obesity, insurance coverage shields the policyholder from the full costs of eating too much and exercising too little. Because the obese use considerably more medical resources than the non-obese but generally pay the same health insurance premiums, the researchers argue, obese individuals negatively impact the normal-weight individuals in their insurance pool. A group of industry researchers developed a model of weight loss and health insurance under two scenarios: (1) where underwriting on weight is allowed, and (2) where underwriting on weight is not allowed, and concluded that where underwriting on weight is not allowed, all plan participants faced inefficient incentives to undertake unpleasant dieting and exercise, leading to weight gain and reduced social welfare.

Litigation

Fast-food companies have been the target of lawsuits alleging that their products caused health problems. The litigations have not yielded noteworthy monetary damage awards for plaintiffs, but proponents of obesity litigation have suggested that food-related suits based on deceptive marketing to children which are brought under state consumer protection laws may have a chance of succeeding. Some anti-obesity activists have stated that “Big Food” obesity litigation could be modeled on tobacco litigation, causing concern for companies involved in the food industry. The personal injury lawsuits against the food industry that have been filed, however, have proved that such cases are not likely to succeed. Generally, plaintiffs have not been able to prove that some specific action by the defendants caused the apparent overindulgence. A well-known lawsuit against McDonalds, Perlman v. McDonald's Corp., 237 F. Supp. 2d 512 (S.D.N.Y. 2003), was dismissed, but the court’s opinion is thought by legal analysts to provide clear guidance for future litigants as to how a suit might succeed.

Some industry experts have predicted that anti-obesity activists will use state consumer protection statutes to target foods advertised as “low fat,” for example, but that do not list the actual calorie count, or that clearly seek to establish brand loyalty in children, or that split school vending machine profits with school systems, thus providing non-nutritious products to a captive market. Some industry observers believe that these cases may have a chance of success because they do not require that the plaintiffs establish a casual connection to some personal injury -- exposure to the advertising may be enough. There have been a few partially successful outcomes in “Big Food” lawsuits in the form of settlements related to ingredient mislabeling and the removal of soda and snack vending machines from some school systems.

Future Outlook

The future direct costs of illnesses that result from obesity, such as diabetes, coronary heart disease, hypertension, arthritis and stroke, when combined with the cost of lost economic productivity, are predicted to rise to several hundred billion over the next few decades. Physicians are reporting that obesity in children is causing what used to be exclusively adult-onset chronic and expensive diseases in their patients. Economists studying the problem are worried that society will be unable to manage the increased costs of obesity, meaning compromises in terms of quality of life and longevity for many people. Some community programs aimed at reducing BMI and others targeting diabetes prevention, however, have experienced some success. Experts urge continued investment in such programs.

Corporate insurers may want to encourage their insureds to take protective measures such as full disclosure of nutritional information and a comprehensive evaluation of product advertising campaigns; new and possibly successful approaches by obesity-activist plaintiffs cannot be ruled out.

In the News

2015

• Rising Obesity Rates Put Strain on Nursing Homes - SARAH VARNEY, New York Times (12/14/2015)
  Obesity is redrawing the common imagery of old age: The slight nursing home resident is giving way to the obese senior, hampered by diabetes, disability and other weight-related ailments.

2014

• European Union's highest court rules obesity is a disability - VITNIJA SALDAVA, AP (12/18/2014)
  Obesity can be a disability, the European Court of Justice ruled Thursday a decision that could have widespread consequences across the 28-nation bloc for the way in which employers deal with severely overweight staff.
• Obesity - Munich Re (12/01/2014)
  The lines between managing healthcare costs and workers’ comp costs have blurred as medical, regulatory, and compliance views change.

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