Co-authored with Anna Stoto, a research assistant at the O’Neill Institute
In 2007 Mayor Mick Corbett put Oklahoma City on a diet. Inspired by his own weight-loss battle, and the fact that Oklahoma City was labelled one of the fattest places in America, on New Year’s Eve Corbett stood in front of the elephant enclosure at the city zoo and challenged Oklahoma to lose one million pounds.
Corbett’s first step was to set up a website called thiscityisgoingonadiet.com, with information and resources on weight loss, exercise and healthy eating. The site also featured a weight-loss counter, where local groups and residents could track their progress and add the pounds they lost to an overall tally. More than 47,700 people signed up to participate in the program (approximately one third of the city’s obese population), and the site also inspired local churches, schools, and workplaces to start their own weight-loss programs.
Mayor Corbett went much further than just encouraging Oklahoma City residents to lose weight. From mid-2009 he polled citizens on how to improve the design of the city, resulting in a focus on providing more avenues for physical activity. Corbett used a one cent increase in sales tax and funding from the federal government to build a downtown park, improve hundreds of miles of sidewalks, and develop hiking and bike trails. Local businesses also pitched in, loaning the city $140 million to create more pedestrian-friendly streets, add bike lanes, revamp parks, and install an ice-skating rink. The mayor combined urban design improvements with education campaigns and health programs that targeted the city’s least-healthy ZIP codes. In January 2012, the city hit its goal of dropping one million pounds. The Mayor also credited his initiatives with generating a cultural shift that made health a greater priority for city residents, as well as contributing to Oklahoma’s revitalized economy.
Oklahoma City’s story represents a growing trend in many US cities, where local politicians are experimenting with innovative measures to combat obesity and chronic disease. Los Angeles introduced a prohibition on new stand-alone fast-food restaurants in neighborhoods with a high density of fast-food chains and liquor stores, but with few grocery retailers (areas known as ‘food deserts’). In 2010 San Francisco and Santa Clara County banned fast-food restaurants from offering free toys or games with children’s meals that didn’t meet certain nutritional standards. Other examples include a Colorado State ban on selling sodas in schools, an ordinance in Tacoma, Washington that requires daily recess in elementary schools, and a ‘Complete Streets’ policy in Douglas County, Kansas, with road design features that cater to pedestrians and cyclists as well as car users.
The clear leader in local-level innovation is New York City. Under former Mayor Michael Bloomberg, the city implemented a comprehensive suite of policies that encouraged healthy eating and physical activity, and sought to reduce cigarette smoking. The most controversial of these policies was a 16 ounce cap on the serving size of sodas sold in restaurants, movie theaters, street carts, and sports stadiums. While the ‘soda ban’ was overturned by the courts, Bloomberg has successfully introduced a range of other policies, including bans on the use of trans fat, calorie counts on restaurant menus, a salt reduction initiative, new parks, a bike share scheme, bans on smoking in public places, raising the cigarette purchasing age to 21 and regulations for the use of e-cigarettes.
Public health entrepreneurs like Michael Bloomberg recognize the importance of obesity prevention for the health and prosperity of cities. With more than one-third of American adults currently obese, creating an urban environment that facilitates healthier choices is critical to reducing health-care costs and improving quality of life for city residents. Politicians such as Mayor Corbett argue that there are even broader-reaching connections between obesity prevention policies and economic growth. Lower healthcare costs and healthier workforces lure businesses to cities, adding new jobs to local economies in the process. By creating more attractive urban environments, cities can compete for the younger, highly-skilled knowledge workers that are critical to growth and prosperity in urban centers, particularly following the decline of manufacturing jobs in American cities.
Local governments have the potential to make huge strides in obesity prevention policy. At a basic level this comes down to the division of powers between local, state and federal governments. States have inherent authority to provide for the health and welfare of their populations (called the ‘police power’), with the federal governments’ powers limited to those expressed in the Constitution. The courts’ broad interpretation of constitutional powers allows for federal activity in obesity prevention, but states retain significant authority for chronic disease prevention – and through them, city and county governments.
The federal government has encouraged local innovation in public health under the Affordable Care Act, which aims to refocus the healthcare system on preventing people from getting sick rather than simply treating the unwell. The Act establishes the Prevention and Public Health Fund, which provides local governments with grants to experiment with novel prevention strategies.
Local innovation is particularly important in obesity prevention, which is an emerging area of public health law and policy. There have been relatively few opportunities to evaluate new interventions, and policy makers are still struggling to identify effective obesity-prevention measures. Cities act as laboratories for the development, testing and evaluation of new policies, providing much-needed guidance for what works ‘on the ground.’ They can create policies and programs for other localities to mimic, with the potential for policy models to diffuse to state and federal levels.
City and county governments face fewer challenges than larger governments in attempting to introduce new health policies. State and federal governments are often hamstrung by aggressive industry lobbying, budgetary constraints and partisan gridlock. Local governments can overcome these political obstacles more easily thanks to streamlined law-making processes and concentrated political majorities. Bloomberg’s initiatives illustrate how active public health agencies and political advocates can pass innovative measures more effectively in the context of smaller governments.
Closer connections between politicians and the community mean that local leaders are more responsive to community concerns, and public health champions may find it easier to make their voice heard at the city level, where they are less likely to be overwhelmed by the significant spending power of industry. Advocates can more successfully generate ‘bottom-up’ approaches to obesity prevention in the local context, as with the Los Angeles ban on fast-food restaurants, which resulted from lobbying by residents for better food options.
However, there are limits on cities’ obesity prevention efforts. Local governments are vulnerable to pre-emption, where the law of one jurisdiction is invalidated by the laws of a higher level of government. A local government that is trialing controversial obesity prevention strategies may inadvertently trigger a backlash. Following San Francisco and Santa Clara’s attempts to ban toys or games with fast-food meals, Arizona, Florida and Ohio passed legislation prohibiting their municipalities from introducing similar legislation. In retaliation to New York City’s ‘soda ban,’ Mississippi passed a law that prevented local governments from limiting the portion sizes of sugar-sweetened beverages. An unintentional side-effect of local innovation may be a ‘chilling’ effect in other jurisdictions.
Local governments are ‘creatures of the state,’ with state governments determining the scope of their powers. Although most cities have expansive rule-making ability, the law of some states tightly circumscribes cities’ home-rule powers. Similar issues came to the fore in the court decision striking down Mayor Bloomberg’s soda ban. The court noted that in issuing the ban, the New York City Board of Health had crossed the line between administrative rulemaking and legislative policymaking. Local government agencies must be careful to craft public health interventions that fall within their jurisdictional boundaries.
State and local laws can also be subject to constitutional challenge, and will face a high level of scrutiny where they impact on constitutionally protected interests. In Lorillard v Reilly, the tobacco industry successfully challenged a Massachusetts law that banned tobacco advertising within 1000 feet of schools and playgrounds, on the basis that it violated constitutional protections on commercial free speech. Laws that ban junk food advertising in areas where children gather could face similar challenges from the food industry.
A perennial problem for obesity policy is the charge of paternalism and government over-reach. Critics frame soda bans and ‘fat taxes’ as examples of the government infringing on people’s right to choose what they eat and drink. Michael Bloomberg earned himself the moniker ‘Nanny Bloomberg’ for his far-reaching public health policies, and was described in one Vanity Fair article as a ‘control freak.’
Many also question the effectiveness of such policies, arguing that they are based on inconclusive science and will have little impact on obesity rates. The evidence to date is mixed. For example, studies suggest that calorie counts on menus may prompt fast-food restaurants to introduce a greater array of healthier options, but they don’t necessarily persuade people to buy these healthier menu items. Some early research showed that menu information did influence customers to purchase lower-calorie items, but this effect was limited to a few chain stores and didn’t result in an overall decrease in calories purchased.
Obesity prevention suffers from the fact that it is notoriously difficult to establish a causal link between a single intervention and changes in behavior. One of public health’s greatest successes – the dramatic fall in smoking rates – resulted from the incremental regulation of cigarette promotion, manufacturing and availability over 50 years, combined with education and medical interventions. Similarly, obesity prevention policies may only be effective as part of a comprehensive menu of options that together shift social norms and behaviors.
A related – and perhaps more profound – concern is the way in which these policies affect health inequalities. In developed countries, the burden of obesity and chronic disease is borne disproportionately by low-income populations and particular ethic groups, for example, African American and Latino populations in the United States. Inequalities between different population groups are found at all levels of society – between countries, within countries, and also within cities. During the Bloomberg era New York City experienced an overall decline in childhood obesity, but this decline was significantly less for Latino (3%) and African-American (2%) children, compared to Asian and white children (8% and 13% respectively). The causes of these health disparities are varied, but fundamentally relate to social and environmental conditions in which people live, including income, education, housing, air quality, local food systems and access to transport.
Some obesity prevention policies may improve health inequalities because they apply universally across the population but provide greater benefits to at-risk populations. In 2009 the City Council of Austin, Texas, adopted a resolution mandating that all residences in the urban core should be located within a quarter mile of a park or recreational area. This policy is likely to have a greater impact on low-income groups as there are generally fewer venues for physical activity in low-income areas, and poor public transport may make it difficult to access parks in other areas.
But obesity programs do not necessarily benefit those in need. This was a key criticism of the Bloomberg agenda – that new measures improved the health of New York’s more affluent citizens, but did little for poorer community members. For example, although the city’s bike share scheme has clocked up more than 4.3 million trips, there are low participation rates among poorer New Yorkers and a lack of membership in the outer boroughs. Critics also argue that redesign of the urban landscape contributed to processes of gentrification that pushed low-income New Yorkers out of the city and into underserved areas. This problem was compounded by Bloomberg’s failure to address the more fundamental social and economic determinants of health, by mandating a higher minimum wage, for example, or through policies addressing residential segregation.
Where the benefits of obesity prevention policies do not reach at-need communities, interventions may improve public health overall, but leave health disparities in place, or even widen them. Studies show that food labelling interventions help more affluent customers make healthier purchasing choices, but don’t have the same effect on low-income individuals. The benefits of calorie labeling may be limited when people have poor nutrition literacy, and don’t know how many calories they should be consuming on a daily basis, or which menu options could be considered healthy.
In other cases, obesity prevention efforts may disproportionately burden poorer populations. Soda taxes are often viewed as regressive because they fall more heavily on lower-income groups who drink more soda than wealthier people, and who are less able to absorb a tax hike. Yet it may be a greater injustice to allow low-income communities and people of color to bear a greater burden of obesity – to which sugary beverages make a significant contribution.
Obesity prevention policies potentially have complex effects on health inequalities. They also raise tricky questions about the extent to which governments should influence what we eat and drink, and how public health policies should engage with the social and economic factors that fundamentally determine health. But good design and implementation can head off some of the criticisms that have arisen in response to local innovation. To address health disparities, obesity prevention initiatives can be targeted towards at-risk communities or localities. The Los Angeles moratorium on fast-food restaurants applied in South Los Angeles, a low-income neighborhood with large African-American and Latino populations. Bloomberg’s ‘fresh’ initiative provided zoning and financial incentives to grocery store owners and developers setting up in underserved, low-income communities.
Targeted policies can be controversial, particularly where they apply to specific ethnic or racial groups. Public health interventions may get a warmer reception when communities are able to take ownership of the problem. Policy makers should use inclusive policy design processes that give local residents an opportunity to speak about the issues that they feel are significant, and how these issues should be addressed.
Leadership is also important, and the public health field needs to learn how to create more policy entrepreneurs like Michael Bloomberg and Mike Corbett. Educating political leaders on tools for obesity prevention may be one way to create public health entrepreneurs; another is for local governments to hire ‘food czars’ to coordinate their food policy and to assist in providing greater access to healthy food.
Introducing innovative policies is a necessary first step, but follow-up is equally important: if they are to be effective, policies must be accompanied by mechanisms for implementation, monitoring and enforcement, as well as sufficient resources and technical expertise. For example, states and localities can help provide financial support or technical assistance to food retail establishments introducing menu labeling requirements for the first time. Implementation plans can outline the specific steps to be taken in carrying out new policies. Monitoring and evaluation build the evidence base for effective interventions and ensures that they are reaching those most at need. In particular, policies should be assessed for their impact on health inequalities, and readjusted if monitoring finds that policies are failing at-risk groups. Regular, systematic review of policies’ overall functioning also enables under-performing interventions to be strengthened or reformed. Local governments should consider compliance mechanisms, as with a New York City regulation that requires child care centers to promote physical activity and limit consumption of unhealthy foods as part of the centers’ licensing requirements.
Finally, if obesity prevention measures are to benefit all members of the local community, they must form part of comprehensive policies that address the more deep-rooted determinants of health, namely poverty, housing and education. Obesity policies should not contribute to the creation of healthy, affluent suburbs surrounded by areas of low employment, food deserts and limited opportunities for physical recreation. Instead, interventions must bring communities together by giving every resident an equal opportunity to benefit from public health innovation.
Below are references that the authors drew upon when writing the blog, and which aren’t otherwise acknowledge through in-text links:
Ashe, M., S. Graff, and C. Spector. 2011. “Changing Places: Policies to Make a Healthy Choice the Easy Choice.” Public Health 125 (12): 889–95.
Diller, Paul A. 2014. “Why Do Cities Innovate in Public Health? Implications of Scale and Structure.” Washington University Law Review 91 (forthcoming).
Fry, Christine, Sara Zimmerman, and Manel Kappagoda. “Healthy Reform, Healthy Cities: Using Law and Policy to Reduce Obesity Rates in Underserved Communities.” Fordham Urban Law Journal 40 (4): 1265–1320.
Gostin, Lawrence O. 2013. “Bloomberg’s Health Legacy: Urban Innovator or Meddling Nanny?” Hastings Center Report 43 (5): 19–25.
Graff, Samantha K., Manel Kappagoda, Heather M. Wooten, Angela K. McGowan, and Marice Ashe. 2012. “Policies for Healthier Communities: Historical, Legal, and Practical Elements of the Obesity Prevention Movement.” Annual Review of Public Health 33 (1): 307–24.
The views reflected in this blog are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.