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Lawyers have contacted state attorneys general in 16 states to pitch a radical idea: force the food industry to pay for out-of-control, obesity-related health care costs that have contributed to America’s Medicaid spending woes.

It’s a move reminiscent of 1998′s Big Tobacco takedown, which ended in a $246 billion settlement with 46 states, a ban on cigarette marketing to children and unprecedented regulation from the Food and Drug Administration, according to Politico

Photo credit: Beth Hoffman
“No fair-minded, informed and honest observer would contend that food manufacturers bear absolutely zero responsibility for the problem of obesity.” Photo credit: Beth Hoffman

Despite some skepticism, several nutrition and legal experts think a similar strategy could be applied against “big food”—especially as obesity-related diseases have lapped smoking as a major contributor to health care costs.

“I believe that this is the most promising strategy to lighten the economic burden of obesity on states and taxpayers and to negotiate broader public health policy objectives,” said Politico source Paul McDonald, a partner at Valorem Law Group in Chicago, who is leading the charge.

McDonald also wrote a Politico Pro opinion piece, published on Feb. 23, to further clarify the aim of his legal initiative that could help states close budget gaps as billions in Medicaid expenditures devour respective shares of tax revenue.

He writes:

“No fair-minded, informed and honest observer would contend that food manufacturers bear absolutely zero responsibility for the problem of obesity. In fact, the food industry’s own health-related product modifications are an acknowledgment of some responsibility. I believe that whatever level of responsibility that some food manufacturers bear—supported by evidence, and taking into account personal responsibility—is their fair share of reimbursement owed to states obligated to treat obesity-related illnesses under Medicaid. That percentage may be on the lower end, e.g., 25 percent, or the higher end, e.g., 75 percent. It is not zero. 

But while food manufacturers bear some responsibility, taxpayers are currently bearing 100 percent of the costs, paid for by higher state taxes, reduced state services or both. Tens of billions, and growing. I don’t believe that is sustainable, or fair.”

Proposals, tailored to specific budget situations in California, Connecticut, Delaware, Iowa, Kentucky, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, New York, Nevada, North Carolina, Mississippi, Oregon and Pennsylvania were sent to respective attorneys-general by McDonald; however, no state law official has agreed to file a lawsuit against big food.

“Regulation through litigation is not an effective or appropriate mechanism for policymaking,” said Ginny Smith Clemenko, senior director of communications at the Grocery Manufacturers Association, one of he food industry’s most powerful lobbying groups, to Politico. “Proponents of bans, taxes and lawsuits as a means to curb obesity don’t truly understand the nature of the problem and lack the collaborative vision shared by first lady Michelle Obama and the vast majority of stakeholders who are working passionately to solve it.”

Over the last decade, food and beverage companies have introduced 20,000 healthier products, voluntarily removed full-calorie drinks from schools and adopted self-regulatory standards for marketing to kids, said Smith Clemenko.

McDonald’s law firm has teamed up with leading obesity and diabetes researchers, including Barry Popkin at the University of North Carolina Chapel Hill, Robert Lustig at the University of California San Francisco and economist Frank Chaloupka at the University of Illinois at Chicago, to help deliver a winning legal strategy.

Lustig, a pediatric endocrinologist, is known for “Sugar: The Bitter Truth,” which went viral and attracted more than 4 million views. He thinks litigation should focus on diabetes since diseases related to obesity are most expensive.

Additional research has also linked added sugars to cardiovascular disease.

From spaghetti sauce to Wheat Thins, about 75 percent of all the packaged foods in U.S. supermarkets contain added sugars.

Another concern is that costs will only compound over time due to the alarmingly high obesity rate of children.

According to the Centers for Disease Control and Prevention:

  • Childhood obesity has more than doubled in children and tripled in adolescents in the past 30 years.
  • The percentage of children aged 6–11 years in the U.S, who were obese increased from 7 percent in 1980 to nearly 18 percent in 2010. Similarly, the percentage of adolescents aged 12–19 years who were obese increased from 5 percent to 18 percent over the same period.
  • In 2010, more than one third of children and adolescents were overweight or obese.
  • Overweight and obesity are the result of “caloric imbalance”—too few calories expended for the amount of calories consumed—and are affected by various genetic, behavioral and environmental factors.

McDonald closes his letter by writing any money gained from a potential lawsuit would go to the state covering the high Medicaid bills, not individuals affected by obesity who would be included under a consumer class-action lawsuit. 

Visit EcoWatch’s FOOD and HEALTH pages for more related news on this topic.

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