Is there a need for legislation tackling obesity in the England? To what extent obesity is an issue in England? What are the public health policies already in place? Is there a need for specific legislation – No or Yes, if yes how and why e.g see Japan/Argentina.

There is a growing consensus amongst health professionals that policy makers are in the best position to tackle the growing issue of obesity. This reflects the perceived success of the use of law to tackle other health challenges, such as smoking which was effectively addressed by the ban on smoking in public places. In this essay I will argue that public health policies in place designed to tackle obesity are deficient in light of their nature and breadth. I will suggest that a number of measures could be introduced to address obesity more effectively and seek to justify their introduction on a utilitarian basis. I will also highlight why the introduction of these measures would necessarily require legislation.

To what extent is obesity an issue in Britain?

According to Government statistics, most people in England are overweight or obese. This includes 61.3% of adults and 30% of children aged between 2 and 15.1 Obesity is widely accepted to cause physical disabilities and various psychological problems. For example, the risk of developing NCDs, including some cancers, cardiovascular diseases and diabetes is significantly higher with those of a high body mass index (BMI>25).2 A report by The American Institute for Cancer Research indicates that there is strong evidence linking body fatness with risk of cancer in the following organs: oesophagus; pancreas; gallbladder; colorectum; breast; endometrium; and kidney.3 The cost of obesity to the British economy is staggering.

It is estimated by the Government that health problems associated with obesity cost the NHS more than £5 billion every year.4 It is likely that there are also major productivity losses caused by obesity, due to increased fatigue and health disorders, but these are very difficult to quantify.

If it is assumed that the Government has a general duty to improve the health and well-being of its citizens, it follows that obesity is a significant issue for policy makers. In any event, the large costs incurred by the NHS in clinically treating health disorders caused by obesity is undoubtedly a matter for politicians.

What causes obesity?

Before examining the public health policies in place to tackle obesity, it is necessary to firstly elaborate on its socio-economic causes. Swinburn persuasively argues that the prevalence of obesity is attributable to the changing environment in which people live.5 He identifies a number of factors contributing to this shift in environment, such as: energy-dense foods and beverages, environments discouraging physical activity and the widespread use of labour- saving devices such as cars, computers and passive entertainment.6

These changing conditions encourage people to consume unhealthy foods and beverages, and abstain from physical exercise. It follows that the effectiveness of government policy on obesity should be judged by its ability to address these factors. Two categories of policy can be identified.7 First, policies attempting to address the ‘food environment’ which involve mitigating environmental factors leading to the consumption of fatty foods and increasing environmental factors leading to the consumption of healthy food. Second, policies involving ‘behaviour change communication’. These policies aim to communicate messages encouraging people to change their conduct to healthy behaviour.

What are the public health policies already in place?

In respect of food environment policies, the Government has in place voluntary regulations whereby food labels classify contents as either red, amber or green depending on whether the food has a high, medium or low level of calories, fat, salt and sugar. Major food retailers, including Sainsbury’s, Tesco, ASDA, Morrisons, the Co-operative and Waitrose have signed up to the system.8 Also, the Government has created voluntary pledges for businesses to sign up to with the aim of reducing calorie intake, such as the reduction of ingredients in food which are harmful and including calorie information on menus in restaurants. The Department for Education provides funding for schools to give healthy free meals for children in primary school and has guaranteed funding for 2 years.9 Also, fried foods are only allowed to be served twice a week and soft drinks are no longer available. High-quality meat, poultry or oily fish, at least 2 portions of fruit and vegetables and bread, other cereals or potatoes are necessary in all meals. 10

With respect to behaviour change communication policies, the Government introduced the Change4Life programme, an advertising campaign designed to encourage people to take up healthier eating and physical activity.

However, the present law on obesity is inadequate in two ways. First, the nature of a number of the regulations is voluntary, which frustrates their effectiveness. Second, there is a shortfall in policy on a number of material matters. I will deal with each in turn.

Law versus self-regulation

The use of self-regulatory and voluntary schemes is supported by the Government and the European Advertising Standards Alliance. However, there is strong evidence to suggest that the use of law would be a more effective way of tackling obesity. Five specific advantages can be identified. First, the law can be framed in such a way to be of general application whereas self-regulatory schemes are inherently to industries electing to participate. Second, the criteria set by law can be set stringently, with clear and effective sanctions in force to compel compliance. Third, whereas self-regulatory schemes can be abandoned over time, a policy in law will remain active until it is abolished.11 Fourth, compliance with laws is generally a matter of public record, for which politicians are accountable, whereas the levels of compliance with voluntary schemes are not necessarily transparent. Fifth, the substance of guidance in law is likely to be of greater value than that in self-regulatory codes. This is because self-regulatory codes are created by the industry itself, which suffers from an inherent conflict of interest between goals of increasing sales and profits and protecting the public health.12

The voluntary policies in place at present can be considered deficient in light of these disadvantages. The self-regulatory policy in place on labelling and pledges has only been taken up by major food retailers. The market incentive for major food chains to adopt these pledges arises from the economic benefit of associating their brand with healthy food. There is no similar incentive for smaller retailers to pay the cost of adopting the scheme. The result of this is that the schemes on nutrition labels and adopting healthy food will never be applied comprehensively.

Also, there is no system in place for enforcement of the scheme and levels of compliance are not formally recorded. This makes it more difficult for the levels of compliance to be monitored and the regulations enforced. For these reasons, it is submitted that it is necessary for regulation on food labelling to be enforced by law

Breadth of policies

The Government has introduced some policies addressing obesity, but they are narrow in scope. With respect to food environment, as mentioned earlier, the systems in place on food labelling is not yet comprehensively enforced with all food retailers and outlets. Also, there is no policy discouraging the use of advertising techniques promoting unhealthy foods. Much of unhealthy eating is attributable to the success of such advertising and for children, who are naturally more susceptible to advertising techniques, the problem is greater. Therefore, it is suggested that there should be restrictions in advertising to children promoting unhealthy food. Similarly retailers should be compelled to place healthy food at the front of stores and processed food at the back, thereby enhancing the chances that customers will purchase healthy food.13 These issues deal with the way in which unhealthy food is presented. It is also necessary for policy makers to encourage food retailers and outlets to sell healthy food. This can be achieved by altering tax burdens and planning incentives.14 Tax burdens, such as VAT, could be reduced on foods which are classified as healthy. Similarly planning rules could be made more favourable for businesses intending to sell healthy products. By making the sale of healthy food potentially more profitable, the Government would be encouraging retailers to sell healthy food.

The most significant shortfall in Government policy is with respect to behaviour change communication. The Change4Life scheme provides advertises advice on nutrition and exercise. However, research conducted in America suggests that interactive seminars are much more effective tools for communicating messages about nutrition. The project concentrated on educating school children and provided 50 hours of food and nutrition education per student and outreach meetings with their parents. The result was that around 50% fewer students in schools in which the programme was conducted became obese within the following 2 years than with students in control schools. It is sensible for behaviour change communication to focus on schools given that children are more susceptible to suggestions on changing behaviour and schools already have the infrastructure necessary for seminars is already in place.15 It is submitted that a similar scheme on obesity advice should be introduced in Britain.

Political and philosophical arguments

Two arguments against changing the law on obesity are frequently relied upon by policy makers. The first is the cost of increasing the regulatory burden on the private sector. It is considered that there are opportunity costs involved in drafting legislation and enforcing it. Similarly, a cost will be involved in providing for nutritional education at schools and reducing taxation to encourage the sale of healthy food. However, the financial burden of obesity on the state is immense. The potential benefits to be achieved by introducing further regulation is such that this argument is not persuasive on a utilitarian basis.

A second argument against changing the law is a social libertarian argument. Individuals should be left free to choose what to eat. To encourage individuals to act in a certain way is to take away their liberty. However, the policies in this context do not aim to prevent individuals from accessing unhealthy food, but rather simply to place them in a position where they can make informed decisions.

Conclusion

For these reasons it is submitted that the law in place designed to tackle obesity is insufficient and further measures should be introduced. Conferring on the Government greater powers to force businesses to introduce nutrition labelling and restricting advertising to children promoting unhealthy food will require legislation. This is because there is no legislation at present empowering the Government to introduce such measures.

1 Department of Health, Reducing Obesity and Improving Diet 25th March 2013.

2 World Cancer Research Fund, ‘Law and Obesity Prevention: addressing some key questions for the public health community’. < http://www.wcrf.org/PDFs/WCRF-International-Law-and-Obesity-Prevention.pdf>. 

3 American Institute for Cancer Research ‘Food, Nutrition, Physical Activity, and the Prevention of Cancer: a global perspective’ < http://www.dietandcancerreport.org/expert_report/index.php>.

4 n1.

5 G. Egger, ‘Dissecting obesogenic behaviours: the development and application of a test battery for targeting prescription for weight loss’ [2007] Obes Rev. Nov 533.

6 Ibid.

7 n 2.

8 n 1.

9 Department for Education, Plan to increase take-up of school dinners launched 12th July 2013.<https://www.gov.uk/government/news/plan-to-increase-take-up-of-school-dinners-launched>.

10 Department for Education, School meals healthy eating standards 20th July 2013 <https://www.gov.uk/school-meals-healthy-eating-standards> .

11 n2.

12 Moodie et al, ‘Large reductions in child overweight and obesity in intervention and comparison communities 3 years after a community project’ [2013].

13 n 2.

14 Ibid. 

15 Gary D Foster, A Policy-Based School Intervention to Prevent Overweight and Obesity April 2008 <http://www.ncbi.nlm.nih.gov/pubmed/18381508>.

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