[Vision2020] Legal Principles (was: Obesity Compared To Tobacco: Premature Deaths: Physical Activity & Obesity)

[Ted Moffett]

I wasn't "making a case," in a legal lawyer/court manner, for the
state restricting children's access to or quantities consumed of certain
unhealthy foods (though I certainly support children eating healthy diets
and getting lots of exercise: Who would be against this?), but merely
describing the current environment of actual or suggested legal action and
medical, social and political debate, "given the history of paternalistic
laws applied to minors," as I wrote.  Perhaps these paternalistic laws are a
mistake, and minors should have legal access to tobacco, alcohol, and legal
sexual behavior the same as consenting adults, along with any amount of any
food they chose.  Also, minors could have the full force of adult criminal
laws applied: if a ten year old commits murder, they can receive the death
sentence, and so forth.  Anyway, I'm not a lawyer; and to outline legal
principles and cases in extreme detail would probably bore Vision2020
readers even more than my posts on climate science.

But I'll offer comment on some of the points in your post, given they're
certainly worthy of discussion...

As you and others no doubt know, different legal principles are difficult in
the real world to clearly separate as they apply to various situations.  For
example, legal paternalism, restricting harm to self, that is clearly
separated from cases of restricting doing harm to others, in application in
the real world is not just aimed at stopping harm to self.  People who harm
themselves can as a result of this behavior do harm to others.  Drug abuse
is one example.  A person who is alcoholic may be only harming their own
body and mind by this behavior, but if they have children, it often is a
causal factor in domestic violence.  The debate about so called "victimless
crime" goes on and on, with good arguments on both sides, applied to drug
abuse, prostitution; even the long term social costs of obesity can be
debated regarding its "harm to others."  Exposing someone who is not smoking
to tobacco smoke from someone choosing to smoke, is of course a more direct
case of "doing harm to others."

As far as what children eat or not, whether they have a "will" or not is not
necessarily important.  Nor is the notion they are being "force fed"
important, except perhaps in cases of blatant child abuse.  Hungry children
eat what their parents put before them, in many cases (I speak from
experience, as we all can), unless they have money to buy their own food,
not often an option for many children on a routine daily basis.  If the
meals are loaded with extra fat and sugar, pushing calorie counts to high
levels, very few children will refuse the food because they are well
educated in dietary health, and thus will refuse to eat till their parents
wise up.  Such a child, which would be rare anyway, will often quickly
discover their powerless position in the world.  I am not suggesting the
state should monitor what parents are feeding their children in the home.

In the case of food supplied in K-12 schools, many parents have little
direct control over this.  Some parents may get involved in school dietary
programs, but many will not.  So blocking the sale of high sugar soda and
candy in K-12 schools, or lowering the sugar and fat content in the school
lunch program, is not limiting parents behavior, but the behavior of the
state when it acts "in loco parentis" in public schools.

Labeling in restaurants of fat and calorie content, which will not block
anyone from ordering what they want, is an attempt to promote education and
awareness of the reality of what people are choosing to eat, so they can
make more informed decisions.  In fact many people simply do not know that
some of the meals they are eating in restaurants are so extremely high in
fat, sugar and calorie content.  If they were fully aware of what they are
eating, they might make other choices.

Also, limiting the marketing of certain foods to children imposes no direct
limitations on parents or children's behavior regarding food choices.   But
given that marketing works to influence these decisions, if certain kinds of
marketing for high calorie excessive fat or sugar containing foods were
absent, we can assume both parents and children would make different
decisions.

Ted Moffett

On Wed, Aug 19, 2009 at 11:14 AM, Joe Campbell <philosopher.joe at gmail.com>wrote:

> Ted,
>
> Sorry but I missed the genetics comment. This is helpful.
>
> But I want to distinguish between the kind of case you're making for
> restricting the diets of children from the kind of case I would make
> for the smoking ban were I to make such a case. And I'm doing this
> because some of the anti-smoking ban people don't seem to get the
> difference either. Again, I'm not here making the case for the smoking
> ban. I'm just distinguishing your argument below from the kind of
> argument I would give.
>
> Laws impose limits on our behavior, so we may ask, generally speaking,
> When is the state allowed to impose limits on human action? There are
> four different answers worth noting. First, there is legal liberalism,
> which is best articulated by John Stuart Mill: “The only purpose for
> which power can rightfully be exercised over any member of a civilised
> community against his will is to prevent harm to others.” (On Liberty)
>
> FYI, I cut and pasted the quote from this article:
> http://www.utm.edu/research/iep/l/law-phil.htm#SH2a
>
> Opposed to legal liberalism are two views that suppose that the state
> is allowed to restrict behavior for other reasons, in addition to harm
> to others. Legal paternalism, for instance, allows that we may limit
> behavior leading to harm to self (in addition to harm to others).
> Legal moralism allows that we may limit behavior leading to moral
> harms (including at least moral harms to others).
>
> A fourth view, anarchism, supposes that it is never permissible to
> restrict the behavior of others through law. Some people sound as if
> they hold this view but not many do. Societies are constructed, in
> part, for the protection against harm from others. Arguably the legal
> system is the very mechanism we have of reaching this end.
>
> Obesity is a classic harm to self. Unless we’re talking about cases in
> which someone is being force-fed, people tend to feed themselves. If
> we’re going to justify limiting behavior in an effort to cure the
> obesity problem, we’re not going to be able to do so by legal
> liberalist principles alone. Maybe you think that we are force-feeding
> children, in a sense, but that would be another argument, which I’d
> like to see.
>
> And the fact that the immediate restriction is on the acts of children
> doesn’t make much of a difference. Either children have a will, in
> which case you are restricting their behavior, or they do not, in
> which case you are still restricting the behavior of their parents.
> Again, I’m not going to take a stand on whether this is or is not
> legitimate but a fundamental principle of freedom that I have is that
> physical harm to others is the only basis for restricting behavior by
> law. But this is a huge debate, as you well know.
>
> In-door smoking is fundamentally different. Consider this quote from
> the recent post by Ron Force – likely not a proponent of smoking bans!
>
> "Ferd Schlapper, executive director of BSU's Health, Wellness and
> Counseling, said most people on campus support the smoking ban, and 50
> percent of students report being bothered by secondhand smoke on a
> weekly basis."
>
> 50% of the students are “bothered” by a certain behavior AND it turns
> out that the behavior is actually harmful to them (not just the
> smoker). That is enough to at least make a prima facie case for
> restriction on legal liberal – not legal paternalist or legal moralist
> – principles. Note I’m only saying it is a prima facie case. I haven’t
> thought about the smoking ban much beyond this since it all happened
> so quickly and now it’s a done deal. Harm to others is a necessary
> condition, not a sufficient one, for restricting behavior. But it is a
> different kind of necessary condition than the one that you are
> appealing to below.
>
> Best, Joe
>
> On Tue, Aug 18, 2009 at 3:39 PM, Ted Moffett<starbliss at gmail.com> wrote:
> > As I already wrote in this thread ten hours before your comment below...
> > Obesity can be "brought on by genetics, sometimes,..."
> >
> > Some people are genetically endowed with a high metabolism, others with a
> > low one, and this can greatly influence resistance or not to obesity.
> But
> > for most everyone, if they exercise enough, obesity is greatly mitigated,
> > even with a high calorie diet, though a poor diet still can have negative
> > health impacts, even for someone exercising a great amount, and remaining
> > lean.
> >
> > One reason diets are sometimes a dead end is that lowering calorie intake
> > can trigger a slower metabolism, thus fewer calories are burned.  Some
> > weight loss clinics actually have their clients eat more (healthy food,
> of
> > course) as they increase their exercise level, to raise overall
> metabolism,
> > which in the long run will help to prevent unwanted weight gain, as their
> > higher metabolism burns calories all day.  With a low metabolism, and low
> > exercise level, even those who lose weight can quickly gain it back...
> They
> > just don't burn enough calories, when eating what their appetite tells
> them
> > to eat, to burn off the calories consumed, because of a too low
> metabolism.
> >
> > Laws that address obesity would not be directly against obesity (imagine
> the
> > obesity ward at a prison), but would be aimed at limiting the sale of
> high
> > calorie and/or low nutrition foods, in some cases, like in K-12 schools,
> > explicitly informing the public of the calorie count and fat levels in
> the
> > food served at restaurants, or limiting the marketing aimed at selling
> high
> > calorie foods to children.  We already have food labeling on many foods
> sold
> > at grocery stores that gives calorie and fat content per serving, etc.
> The
> > following two websites offer information on these options.
> >
> > The information on food labeling served at restaurants below applies to
> the
> > United Kingdom, but covers US based fast food restaurants in the UK, like
> > Burger King, KFC, Pizza Hut, etc.
> >
> > http://www.food.gov.uk/news/newsarchive/2009/apr/catercalorie
> >
> > From website above:
> >
> > Eighteen major catering companies, including many high street names, are
> to
> > introduce calorie information on their menus for the first time.
> >
> > The list of trailblazers, announced today by Minister for Public Health
> Dawn
> > Primarolo and the Food Standards Agency, will begin displaying calorie
> > information from the end of this month.
> >
> > The list (shown below), includes workplace caterers, sit-down and
> > quick-service restaurants, theme parks and leisure attractions, pub
> > restaurants, cafes and sandwich chains.
> >
> > The move will benefit individuals and families trying to choose a
> healthier
> > diet.
> >
> > ------------------------------------------
> > Given the epidemic of adolescent and childhood obesity, it is entirely
> > reasonable, given the history of paternalistic laws applied to minors, to
> > attempt to minimize obesity in children by monitoring their calorie
> intake
> > or limiting access to some kinds of high calorie foods. Some fast foods
> that
> > attract children have added fat and or sugar that pushes the calorie
> count
> > of a serving to shockingly high levels.  There have been attempts to
> lower
> > the sugar content of breakfast foods aimed clearly at children, and to
> lower
> > the fat content of some meals served at fast food restaurants, that also
> are
> > marketed heavily to children.
> >
> > http://www.webmd.com/parenting/news/20040105/fast-food-creates-fat-kids
> >
> > From website above:
> >
> > Other studies show similar results, Bowman says. She advocates limiting
> the
> > marketing of fast food to children.
> >
> > Efforts are underway to remove "fast food, snack food, and soft drinks
> from
> > schools, curbing food advertising directed at children, and enhancing
> > opportunities for physical activity," Brownell explains.
> >
> > ------------------------------------------
> > Vision2020 Post: Ted Moffett
> > On Tue, Aug 18, 2009 at 7:53 AM, Joe Campbell <philosopher.joe at gmail.com
> >
> > wrote:
> >>
> >> Obesity is likely genetic to a large extent, too. But one difference is
> >> there is no such thing as second-hand fat. If I eat a hamburger, it does
> no
> >> damage to the guy sitting next to me. Not true if I have a cigarette.
> Laws
> >> against obesity would be entirely paternalistic, protecting people from
> >> themselves. Smoking in public places different in this regard.
> >>
> >> Sent from my iPhone
> >> On Aug 17, 2009, at 9:38 PM, Ted Moffett <starbliss at gmail.com> wrote:
> >>
> >> It is important to point out that comparing obesity to tobacco use
> >> requires clarification.  Obesity is a medical condition brought on by
> >> genetics, sometimes, and at least two forms of behavior, food
> consumption
> >> and exercise levels.  Obesity is not a "behavior." Tobacco use is a
> >> behavior, not a medical condition, though of course it can cause medical
> >> conditions.
> >>
> >> Also, obesity is not necessarily caused by eating unhealthy foods, but
> by
> >> eating too much food, coupled with lack of exercise.  Someone eating an
> >> excessive amount of organic pasta and spaghetti sauce, and brown rice,
> beans
> >> and veggies, who lays on the couch all day doing nothing else, could
> become
> >> obese.
> >>
> >> Given that the medical condition of obesity has several behavioral
> causes,
> >> it is misleading to compare it as a cause of premature death to tobacco
> use,
> >> which is a single behavioral cause of premature death.
> >>
> >> To compare tobacco use as a behavioral cause of premature death to the
> >> behavioral causes of obesity, as they all contribute in varying amounts
> to
> >> premature death, indicates separately comparing the contribution of
> diet, as
> >> a behavior, to obesity, and lack of exercise, as a behavior, to obesity,
> >> with tobacco use.
> >>
> >> Eating too much food is a behavioral risk for premature death.  Lack of
> >> exercise is a behavioral risk for premature death.  Tobacco use is a
> >> behavioral risk for premature death.  Among the three, which is a
> greater
> >> risk?
> >>
> >> Is this analysis flawed?
> >>
> >> Ted Moffett
> >>
> >> On 8/17/09, Ted Moffett <starbliss at gmail.com> wrote:
> >>>
> >>> Apparently the Centers for Disease Control should update and
> >>> correct their website, if you are correct about obesity (which is not
> caused
> >>> only by diet, in many cases, but by lack of exercise.  Obesity can
> occur
> >>> with over consumption of calories, even from low fat food, compared to
> >>> calorie burn) being as much or greater a health risk than tobacco.
> >>>
> >>> They continue to unequivocally declare "tobacco is the single most
> >>> preventable cause of disease, disability and death in the United
> States."
> >>>
> >>> I am not trying to minimize anything regarding the risks of obesity.  I
> >>> only quoted the Centers for Disease Control from their current 2009
> website,
> >>> which at this moment continues to state in bold letters that tobacco is
> the
> >>> nation's leading killer:
> >>>
> >>> http://www.cdc.gov/nccdphp/publications/aag/pdf/tobacco.pdf
> >>>
> >>> Perhaps they are wrong.  But this discussion is not essential to my
> >>> argument about banning smoking in bars.
> >>>
> >>> You do not address what is an essential aspect of my argument regarding
> >>> supporting a smoking ban in bars (or any workplace): that workers are
> >>> exposed to the smoke, sometimes over their entire shift, with no way to
> >>> avoid breathing the smoke.  A worker at McDonald's, for example, does
> not
> >>> have to eat part of the Big Macs the customers order and eat.  In fact,
> a
> >>> worker at McDonald's does not have to eat any of the food associated
> with
> >>> that business, at all.  So the argument regarding worker safety and
> >>> health, regarding workers exposed to hazardous substance on the job
> that
> >>> they cannot avoid, does not apply to the case of fatty food served in
> >>> restaurants.  I made this argument very explicitly.
> >>>
> >>> I recall clearly you stated workers who do not want to breathe tobacco
> >>> smoke on the job in bars can work somewhere else if they don't like
> this...
> >>> I don't accept this as a valid argument to justify exposing workers to
> >>> hazardous and addictive substances on the job.  Workers often must
> accept
> >>> what work they can find, especially in this economy.  But even if jobs
> were
> >>> in abundance, I think reasonable standards of worker safety should be
> >>> applied to all workplaces, and tobacco smoke exposure is hazardous, the
> >>> medical facts are clear.
> >>>
> >>> Also, if you followed my comments in this discussion carefully, you
> would
> >>> note that I mentioned that obesity is caused in great measure by a lack
> of
> >>> exercise.  So diet is only part of the behavioral syndrome associated
> with
> >>> obesity.  Low fat foods can contribute to obesity in someone not
> exercising
> >>> enough.  I can offer again, as I did before, my anecdotal evidence:  I
> grew
> >>> up in high school eating the fast food diet heavy in meat, fats, etc.,
> in
> >>> very large quantities, yet never became even close to obese.  Why?
> Because
> >>> I spent most of the year running, as much as 40-70 miles a week in
> cross
> >>> country, track and on my own time, and in general led a very active
> >>> lifestyle.
> >>>
> >>> Lack of exercise is one of the most important risk factors causing poor
> >>> health or disease:
> >>>
> >>> http://www.medpagetoday.com/PrimaryCare/DietNutrition/15458
> >>>
> >>> From website above:
> >>>
> >>> The researchers focused on four factors tied to reduced disease risk:
> >>> never smoking, having a body mass index (BMI) lower than 30, performing
> at
> >>> least 3.5 hours per week of physical activity, and following a healthy
> diet.
> >>> -------------------------------------------
> >>> Vision2020 Post: Ted Moffett
> >>>
> >>> On Mon, Aug 17, 2009 at 10:21 AM, Saundra Lund <v2020 at ssl.fastmail.fm>
> >>> wrote:
> >>>>
> >>>> Ted asked:
> >>>>
> >>>> “Can you provide a reference to the study that claims obesity is the
> >>>> number one cause of premature death in the US?  I have not found any
> >>>> credible evidence that obesity has overtaken tobacco as the number one
> cause
> >>>> of premature death, though obesity has increased, especially among
> >>>> children.  It would be interesting to look at this study, given it
> >>>> contradicts the Center for Disease Control.”
> >>>>
> >>>>
> >>>>
> >>>> Sorry for the delay in responding, Ted – this got lost in my Inbox,
> and
> >>>> then my motherboard started dying, etc.
> >>>>
> >>>>
> >>>>
> >>>> In any case, I was slightly mistaken about the study I was recalling –
> >>>> it wasn’t specific to the US and it only looked at men:
> >>>>
> >>>>
> >>>>
> http://www.pubmedcentral.nih.gov/articlerender.fcgi?tool=pubmed&pubmedid=19244221
> >>>>
> >>>>
> >>>>
> >>>> Combined effects of overweight and smoking in late adolescence on
> >>>> subsequent mortality: nationwide cohort study
> >>>>
> >>>> BMJ. 2009 Feb 24;338:b496. doi: 10.1136/bmj.b496.
> >>>>
> >>>>
> >>>>
> >>>> “Conclusions Regardless of smoking status, overweight and obesity in
> >>>> late adolescence increases the risk of adult mortality. Obesity and
> >>>> overweight were as hazardous as heavy and light smoking, respectively,
> but
> >>>> there was no interaction between BMI and smoking status. The global
> obesity
> >>>> epidemic and smoking among adolescents remain important targets for
> >>>> intensified public health initiatives.”
> >>>>
> >>>>
> >>>>
> >>>> And, of course, I’m sure you know there have been a boatload of
> studies
> >>>> published since the 2005 CDC study you cited showing obesity to be as
> great
> >>>> a predictor of premature death as smoking – just go to PubMed and you
> can
> >>>> pull up recent studies with more than you ever wanted to know about
> obesity,
> >>>> morbidity, and mortality.  Indeed, the more research that’s been done
> in
> >>>> recent years identifying the multitude of ways obesity negatively
> impacts
> >>>> health, the more researchers are predicting obesity will greatly
> eclipse
> >>>> smoking as the leading cause of premature death in all adult age
> groups.
> >>>>
> >>>>
> >>>>
> >>>> Look, the point is that neither obesity nor smoking are “healthy” and
> >>>> both individually are huge predictors for premature death, and not
> just in
> >>>> the US.  I guess I just didn’t understand your interest in minimizing
> the
> >>>> risks associated with obesity and premature death.  In fact, lots of
> people
> >>>> who have experienced both “addictions” think the food addiction and
> >>>> developing healthy eating habits is much, much more difficult to beat
> than
> >>>> tobacco, particularly in these times when more Americans are eating
> out – or
> >>>> grabbing food to go – than in this country’s history . . . well, at
> least
> >>>> until the GOP’s policies created the economic crisis.  With smoking,
> you can
> >>>> just completely give it up, which isn’t something one can do with
> food.
> >>>>
> >>>>
> >>>>
> >>>> And, if our City Council is going to get in the business of
> prohibiting
> >>>> legal behavior, why shouldn’t they get in the businesses of telling
> local
> >>>> restaurants to serve healthier foods???  Regardless of activity
> levels, Ted,
> >>>> high fat diets aren’t healthy for anyone, nor are the low fiber foods
> that
> >>>> are epidemic on the Palouse.  I’ve heard more people than I can count
> >>>> comment that the most veggies they eat are from when they eat in
> >>>> restaurants, which is a sad commentary.  And, with a few notable
> exceptions,
> >>>> I’ve heard lots & lots of comments about the lack of affordable and
> healthy
> >>>> vegetarian options when eating out, both in the community and in our
> >>>> schools.
> >>>>
> >>>>
> >>>>
> >>>> Of course, I don’t think our City Council should be in the business of
> >>>> doing either, but since they’ve done one, why not the other?
> >>>>
> >>>>
> >>>>
> >>>>
> >>>>
> >>>> Saundra Lund
> >>>>
> >>>> Moscow, ID
> >>>>
> >>>>
> >>>>
> >>>> The only thing necessary for the triumph of evil is for good people to
> >>>> do nothing.
> >>>>
> >>>> ~ Edmund Burke
> >>>>
> >>>>
> >>>>
> >>>> ***** Original material contained herein is Copyright 2009 through
> life
> >>>> plus 70 years, Saundra Lund.  Do not copy, forward, excerpt, or
> reproduce
> >>>> outside the Vision 2020 forum without the express written permission
> of the
> >>>> author.*****
> >>>>
> >>>>
> >>>>
> >>>>
> >>>>
> >>>>
> >>>>
> >>>>
> >>>>
> >>>> From: Ted Moffett [mailto:starbliss at gmail.com]
> >>>> Sent: Saturday, June 27, 2009 3:33 PM
> >>>> To: Saundra Lund
> >>>> Cc: bear at moscow.com; Tom Hansen; Moscow Vision 2020
> >>>> Subject: Obesity Compared To Tobacco: Premature Deaths: Physical
> >>>> Activity & Obesity
> >>>>
> >>>>
> >>>>
> >>>> Saundra Lund v2020 at ssl.fastmail.fm
> >>>> Wed Jun 24 11:15:40 PDT 2009 wrote:
> >>>>
> >>>>
> >>>>
> >>>> Let's see . . . obesity is either the #1 or #2 cause of premature
> death
> >>>> in
> >>>> the US depending on what study you read.
> >>>>
> >>>> -------------------
> >>>>
> >>>> Can you provide a reference to the study that claims obesity is the
> >>>> number one cause of premature death in the US?  I have not found any
> >>>> credible evidence that obesity has overtaken tobacco as the number one
> cause
> >>>> of premature death, though obesity has increased, especially among
> >>>> children.  It would be interesting to look at this study, given it
> >>>> contradicts the Center for Disease Control.
> >>
> >> =======================================================
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