Paul A. Diller


For at least a decade, commentators have speculated that obesity is the next tobacco, a public health scourge that might nonetheless offer a gold mine to ambitious plaintiffs’ lawyers. Successful lawsuits, as in the tobacco context, might spur the food industry to reform its practices so as to help reduce the alarmingly high national obesity rate. The obesity narrative, however, has not played out accordingly to the same script as tobacco. Relatively quick action by most state legislatures immunized the food industry to tort lawsuits seeking obesity-related damages, and the scant judicial opinions on the issue have skeptically assessed plaintiffs’ claims against the industry. While a litigation-based strategy to combat obesity has largely floundered, legislative and administrative efforts have shown tentative progress. It is in the legislative and administrative arenas that the campaign against tobacco use has the most to teach obesity prevention strategists. In particular, local efforts to regulate the food industry are capable of significantly influencing the legislative and administrative processes at higher levels of government. Even where local action is ultimately preempted or invalidated by courts on other grounds, local action can nonetheless influence state and national policy in the long term by placing certain issues on the agendas of policymakers at higher levels of government.

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