Obesity & the New Politics of Health Policy

New York University, Wagner School of Public Health

Thanks, Mark and thanks to the Society for inviting me here today. The last time I talked to a group of doctors this large was about medical malpractice. I hope for a…not quite so vehement amount of attention today. I’m going to talk very briefly about this so-called new politics of health policy. The remainder I’ll talk about obesity, you’ve already heard it framed as a vital and important and urgent issue. I want to try to persuade that a public policy approach is the only hope for making real advances in this area. I was struck by the previous speaker’s fascinating presentation on stem cell research. Only towards the end did we get a glimpse into the fierce, vitriolic politics around stem cell. The same thing is very much true in the obesity realm, I’m sad to say.

So, the new politics of health policy briefly first. I’ve compared health policy in the last 20 years or so to the generations before that. And there are 4 basic differences. I’m not going to spend a lot of time on all of them, but I’m happy to talk later to any of you about how this is working out. In the not so distant past, we used to do health policy on a broad public scale. Programs like Hill-Burton, which established our massive national network of public hospitals and health clinics, Medicare, Medicaid, sweeping public projects aimed at all of us, thinking of us as a society. Now we tend to do politics in a private way. We tend to regulate through health politics private behavior, either an individual or corporate way. We see this tendency in health policy issues from A to Z or at least A to T, abortion, asbestos, tobacco. I’ll put it this way, if you think over the last 20 years about the issues that have been most important in the health care realm—apart from the big Clinton health initiative or health reform initiative, the failed Clinton health reform initiative—almost all our politics has been around individual behavior or controlling what people do in their often private lives.

Second, general change in our health politics. And I think that first one represents a dramatic shift in American public history, has involved what we political scientists look at as textbook policymaking. The way it goes through the system you learned in Government 101 to a much more complicated, complex process around agenda setting and framing issues. And, again, I won’t spend much time on this, although we’ll come back to it with respect to obesity.

This third one will be of particular interest, I think, especially to you all and as I’ve learned, wrapped in medical malpractice issues. We used to have a policymaking system that was run mostly through the elective branches: executives, like Presidents and governors, and legislators, like Congress and state legislatures. Now, far more of our policy making action, at least successful action in the health policy realm, has been in the courts. This is a dramatic change, we haven’t paid that much attention as a society. I think it’s a very powerful one and the book I’m working on now tries to outline how this has taken place almost quietly.

And the last is, I’ll skip this—it’s a point only a political scientist could love—but another way in which we’ve shifted to a different, more complex kind of policy. Here’s my point. Together these changes shape a distinctive policy process to place an issue on the political agenda. Advocates—in some cases you, working to change our public policy around reproductive healthcare—have to persuade policymakers that private behavior holds important public ramifications. Things like what we eat, in the case of obesity; what we smoke, in the case of tobacco. And a lot of other issues, again, that come down to this individual level. Titanic framing struggles, attempts to talk about an issue in various ways and get politicians to pay attention are transformed most often now to policy changes that come through out courts, not the elective representatives in Congress and state legislatures or executives.

Tobacco is probably the best known case of the changing politics of health policy. But let me give you one other example to suggest the sheer scope of this political trend. As managed care organizations spread in the 1990s, patients and doctors complained about these arbitrary limits on care. Politicians responded by proposing or promising a Patient’s Bill of Rights. You remember these fights. Some of you may have been involved with them along the way. Note, first of all, individual rights enforced in court was the thrust of this change. This eclipsed traditional universal solutions like tough-minded regulation of the managed care industry or compulsory insurance benefits. Congress never passed a Patient’s Bill of Rights. For those of you who roll your minds back to the late ’90s and even the early 2000s. Ted Kennedy lamented publically in the late 1990s: it’s become impossible to get a good bill on Patient’s Rights to the House or Senate. Why don’t we talk about Patient’s Bill of Rights today? Because the issue was successfully litigated in a variety of state and federal venues first, culminating in a series of US Supreme Court cases between 2000 and 2003 that dramatically changed the legal landscape for managed care. A bunch of other areas like this, but I’ll leave it at that one.

Another quick case is the Terri Schivo feeding-tube case, you’ll remember, which prompted to political frenzy. Congress, the Florida legislature, President Bush, conservative and liberal interest groups, and the media leapt into action only to discover that this young woman’s fate was almost entirely controlled by the courts. An especially telling feature of this case and this new politics I’m briefly outlining was a response from moderate public officials in both political parties. They passed over all the complex issues surrounding end-of-life care. What do we owe each individual? What can we as a society afford to provide? Instead, the oft repeated moral of the case focused on private lives and the law. Get your living will in good legal order, as the New York Times reminded us to do. So we live in a time of accelerating government movement to regulating private behavior through the court. Again, you see this tendency in health policy issues form abortions and asbestos to stem cells and tobacco.

What about obesity? I’m going to begin with a quick snapshot of the kinds of trends that you heard in the introduction. It’s a remarkable series of slides. This shows, as of about 23 years ago, obesity trends among US adults. You’ll see on these lighter states outlined, this is where adults have less than 10% obesity measured in traditional terms of BMI of at or over 30. And in a few states you can see the beginnings of over 10% and below 15% obesity rate. Watch these trends change over time.

Three years later-I’m going in 3- or 4-year increments here-you can see the states start to move from this less than 10% to 14%.

Three years after that, states are starting to move in a handful of southern and West Virginia and up here cases, between 15% and 20%. Most of the country has now moved into this 10% or over adults in this obese category.

Three years later, every single state is represented on the map now. Every one is over 10%, only 9 years after this first slide, note.

Moving forward now we see only a handful of states in the original worse category, 10% to 15% of obese adults. Most of the country has now moved 15% to 20% and we’ve got some of these Southern states again up through West Virginia and Alaska—Sarah Palin’s home state—at 20% or over.

Leaping forward 3 years, you can see the spread. We’ve got our first state, Mississippi with 25% or more of adults judged obese and you can see the trend spreading even further.

Three years more later, it’s almost like a McCain electoral map in this case, 25% and up. The red is spreading, you’ve only got 4 or 5 states left, Northeast and through Colorado, Utah and Montana that are in this now “best” category, which used to be the worse. It’s amazing how quickly this has shifted. We’re 19 years from the first slide I showed you.

And now the present. We’ve not got a first new category, 30% or more of adults who are judged obese and you can see the rest of the story. One state left, that’s in what’s now the best category, only 15% to 20% of obese adults.

Here’s a slide just showing this trend going back 18 years. This has been a swift and remarkable shift. It is what every public health official from the Surgeon General in the Bush administration down through every single state, top health official terms an epidemic of obesity. And the question is, what do we do?

Let me just, I just steeped myself before this conference in your world. I read a bunch of medical journals in reproductive medicine. Here’s some of the obesity effects. I know I’m speaking to a group that knows this already, but I’ll just briefly note what happens in your realm. Men, for example, and this is proven health effects according to the medical literature in your realm, men suffer from a reduction in testosterone, lower sperm concentration, count, and quality when they are at a BMI of 30 or over, i.e., obese. Many effects for women, I could only list a few on this slide. Again, this will be familiar to so many of you. It was a disturbing thing for me to read, particularly as someone who just got married 2 weeks ago and is looking forward to entering into this reproductive realm myself before long. Finally, you have postnatal effects as well. It turns out that effects of maternal obesity on postnatal offspring is rather dramatic, including increased mortality and morbidity due to obstetric complications, neural tube malformations, other kind of formation defects that affect the newborn, increase in birth weight with increased fat mass. In some ways the most depressing: children, independent of their mother’s eating habit, but newly born children, the odds of their becoming obese are affected dramatically by mothers having obese or high birth weight. There’s a high risk whether or not the obese…there’s also a high risk of diabetes in this newborn, whether or not the mother is diabetic. So this is a realm that affects your patients in a powerful way as it does the country as I’ve just described. Again, the question is, what do we do?

You all are from the medical profession and naturally your first answer to a question like this turns to medical treatment. There’s only 2 problems with the treatments we have now for obesity: They’re too expensive and they don’t work. It requires us to turn to other realms to try to answer this again fast-spreading, dire epidemic. The public health industry has issues a great many warnings and efforts at education. What we might call soft attempts to change people’s dietary and exercise habits in this country. As you’ve seen from the slide demonstrating the spread of obesity, this hasn’t worked either. I’ve just seen the new numbers through, I think it was July of 2008, for the continued rate of obesity spread: 37 states, just over the last year, have seen a significant increase in their obesity rates for adults and for children. No states, not a single state has shown a decrease, despite what’s now 7 or 8 years of dire public health warnings. These aren’t working. Medical treatment is not there yet. Moral suasion and trying to encourage people to change individual behavior isn’t working as well. This is when we turn to the policy realm. When we hear things, whatever they are, described as epidemics, crises, that’s when government officials step in.

This is the point in a talk like this where most of my colleagues say: And here’s 3 great policy solutions, thanks for your attention. I’m a student of public policy. I worked on Capitol Hill. I’ve worked in administrations. I’ve been in lobbying firms. I know a fair bit about how the policy world works. And one more set of hopeful policy solutions isn’t going to make much difference. And I can tell you as a veteran already of 6 or 7 years of struggles in this area. And the first goes back…The reason for this goes back to the change I described in health policymaking in recent years in this new politics of health policy. Enormous framing battle, an effort to describe and explain this issue, which leads to certain kinds of policy solutions, has been quietly but powerfully waged for 7 or 8 years. That is, since the Surgeon General first announced that obesity had become an epidemic in this country. So I want to, if you’ll indulge me, describe this framing battle and why it matters so much. Why what actually happens in public policy is vitally important as opposed to the slide that says here’s how we fix this. Because we’re a long way in the public policy realm from fixing or responding in a meaningful way to this epidemic.

The first frame… And let me say first that framing a policy response requires explaining the root of this problem. It’s a deceptively simple question. Why are people overweight and obese? There’s 2 very different explanations to that or answers to that question and they frame a very different kind of set of policy solutions.

The first answer to the question of why we are overweight and obese as a country speaks to personal responsibility. This frame or this perspective in the policy debates has been mostly promoted by the food industry itself and it’s allies. This is not an anti-food industry talk. I’ll just note that when anyone traces arguments around personal responsibility, they tend to come from lobbyists in the realm. It also tends to be a more center/center-right coalition that pushes personal responsibility that is folks on the Republican side of the aisle. Not a partisan view, it’s just an observation of fact. This is an old argument in American public life. I suspect many of you arrive with something like this in your heads. Look, this is a personal problem. It should be solved by individuals. And these kind of arguments cast obesity—like smoking, like drinking, and in some cases like poverty—as a kind of personal failure. The obese really ultimately have no one to blame but themselves. This view gathers strength from basic demographics in American public life. Obesity, like smoking, is more a problem among poorer people. And so you have a distinguished official like the president of my own society—someone like yours—mine is the world of public policy. And the current head of the American Society of Public Policy Scholars is a guy named Doug Besharov, who, only a few years ago at the American Enterprise Institute described food stamps, federal school lunch programs, and the WIC (Women Infants Children) programs as “helping to make the poor fat.” It’s a kind of personal responsibility argument. In fact, the public policy issue that has moved the farthest in Congress—a bill to immunize the food industry against lawsuits—was call the Personal Responsibility in Food Consumption Act. It passed the House twice, has not yet passed the Senate.

There’s also a benign side to this personal responsibility view and I will say that the food industry has learned a lot of lessons from tobacco. I spend a lot of time talking to audiences like this one made up of the food industry. And they’ll always get up and say things like we’ve embraced the view that consumers should be educated to eat and drink more wisely. Everyone should be encouraged to exercise. Government officials, the industry will acknowledge, and those who hold this personal responsibility frame around obesity, government officials can act as educators and mentors, promoting improved health habits and publicizing the dangers of obesity. The food industry chips in and sponsors sporting events, donates athletic equipment to schools, and touts “new light”, “healthy” or “Slim-Fast” product lines. This first, personal responsibility frame provides a range of policy solutions that demonstrate concern for the rising problem of obesity without violating the imperatives of privacy, choice, and free enterprise. If the problem lies mainly or entirely in people’s personal lifestyle decisions, sensible policy decisions or solutions at most can just inform those choices.

I suspect that’s where the argument would stop. And when I started giving talks about this 7 or 8 years ago, the personal responsibility frame was the only frame around this issue. Policy responses started and ended with encouragement to exercise, exhortations about better nutrition education. But the problem has continued to spread in a way that has begun to fracture the personal responsibility coalition of, again, center and more to the right moderate Republicans and Republican legislators along with the food industry. This coalition has begun to fracture dramatically because of a second kind of issue or frame: economic cost. Obesity turns out to be enormously medically expensive. High and rising healthcare costs mean that people’s risky private behavior in this personal responsibility frame raises your taxes for government healthcare and increases your premiums for private insurance. There becomes a direct economic logic to arresting bad health behavior. In an era where no policy assessment is complete without cost/benefit analysis, the fight against obesity has begun to be framed as an economic issue. Lots of details about this. I’m one who has contributed to the fight about how much it costs exactly, trying to read the morbidity and mortality rates back into diseases that are traced to obesity. The figures you probably heard in the media range from $120 to $150 billion through direct medical costs for diseases traced to obesity, particularly diabetes, various kinds of heart disease that are specifically responding or grow from obesity. There’s also a figure of around $60 billion that businesses have taken up and paid attention to, their indirect costs through declining productivity, lost wages, and future earnings due to obesity’s costly toll. Let me just note that this public perception has spread dramatically. There’s a 2003 Baltimore Sun editorial that’s now been reprinted in over 100 papers including the San Francisco Chronicle, which quotes, the one time I’ll quote, forgive me for this, but it will emphasize how this frame about economic costs has started to spread into wider society, “The size of your waistline may no longer be your own private business. The obesity epidemic is driving up healthcare costs at the same deadly rate as tobacco use and everyone is picking up part of the tab.” Journals that you might consider or newspapers and media outlets you might consider more liberal or left wing like the Washington Post picked up this story. The Post wrote had a recent story with a headline, “Non-Obese Forced to Subsidize the Obese.” You also get esoteric news stories as when the CDC estimated the additional cost of fuel used by the airline industry to fly increasingly obese Americans and put that figure at $400 million annually. And for you eco-friendly folks that releases about 4 million extra tons of CO₂. That’s the softer side of the news, but the point is there’s a frame or story now about how much obesity is costing all of us. And that has moved us in a stronger direction to a different kind of frame.

This one begins with a concern that people might be, we the consumers might be manipulated or mislead. The politics of tobacco changed when critics persuaded the public that the industry had lied. Does the food industry also make misleading claims? Perhaps those “light” products contain less fat but more sugar. Would more careful labels help guide consumers? These kinds of questions, these kinds of suggestions, shift the focus from obese individuals and their own problem to the environmental factors that might impel us to overeat. The third—and the second of the 2 most powerful frames—personal responsibility and an unhealthy or even toxic food environment. When policymakers trace the problem partially to the industry or the food environment rather than obese people themselves, a very different set of solutions comes into view. These include things like more detailed food labels, as you’ve just passed in California, as was passed in my current home city of New York. I’ve done actually a study of menu calorie labeling, whether it makes any difference. I’ll share that with some of you after, if you’d like to hear. So, different sorts of policy solutions can come into view if you view this as an environmental issue, at least in part. More detailed food labels. Controlling advertising aimed at children. Rethinking school nutrition. Regulating the fat content of foods. Imposing higher taxes on unhealthy ingredients. Punishing false or misleading nutritional claims. And subsidizing healthy food alternatives. This is a roster of strong action. It’s not my set of claims about what would work best, but it’s the sorts of policy solutions that flow from a different frame or view around the problem. And I’ll note that in Washington, where I pay most attention to study Washington, DC that is, this frame has increasingly begun to at least come alongside and in many cases replace the personal responsibility, it’s-your-fault kind of frame. Legislators on both sides of the aisle in the last 2 years for the first time have become accepting or viewing some of the problems around obesity in this vein or realm. For example, Senator Lisa Marchowski of Alaska has now joined long-time, anti-obesity advocate, Tom Harkin of Iowa in the Senate in promoting a set of bills that represent this stronger roster of action. More regulatory, more punitive, taxes, and so on. Most of us don’t like that kind of “big government” activity. But when a problem reaches the crisis point that obesity has done and the solutions around personal responsibility, again, education, exercise, new food pyramids, when they are seen as not working then we get a call for more powerful kinds of change.

So the question is who takes this step? Who moves us towards a roster of some kind of policy solution? If you’ll follow me down this road and accept that medical treatment hasn’t been as successful a solution as we might hope, nor has public health exhortation.

Policy achievements to date around this epidemic, around this crisis of obesity, have been, at the national level, remarkably small. The Federal Government’s response has been virtually zero. Again, the most prominent bill in the US Congress relating to obesity in the last 7 years has been a bill to immunize the food industry against lawsuits. We’ve seen almost no action, although there’s been lots of debate, typically around these frames I described, there’s been lots of debate at the Federal level but no action. Congress has passed nothing significant in response to the obesity crisis since, again, the Surgeon General first at the beginning of the Bush administration called this an epidemic.

There’s been lots of state and local responses in a patchwork kind of way. Menu calories labeling, for example, passed in San Francisco and New York. Now the whole state of California has become the first US state to call for this kind of change. But so far, again, it’s been a kind of patchwork set of solutions. Even neutral advocates in this debate, like the Surgeon General, I mean neutral not politically charged, take the point of view that this is a national problem requiring a national solution.

I’m not an advocate of the courts handling policy issues, but it’s happening more and more in our health politics and policymaking in this country. Again, in realms like tobacco, asbestos, managed care, it’s been the courts that have been the locus for the main change. And, indeed, in the obesity realm, for better or worse, it’s the judiciary that’s taken the boldest steps, especially the national level with Congress and the Executive Branch unwilling or unable to advance any changes in this realm.

The emerging politics of health policy I’ve tried to describe, with its emphasis on regulating private behavior through the courts, makes the judiciary an important locus of decision and so it has been in the obesity realm as well. There’re 2 types of lawsuits around obesity that have been already successful. This was somewhat in the news, you may have picked this up. But, again, from my perspective, when I step back and ask what have we done in the last 7 or 8 years to respond to the obesity epidemic, it’s mostly been the courts that have taken action. Two types of suits, targeting 2 kinds of vulnerabilities. The first are lawsuits against aggressive food industry marketing to children. This has not yet been found actionable at a federal court, there have been decisions in a number of state courts and they’re building over a hundred cases, charging the industry with overaggressive, if you will, marketing to children. And I’ll just say parenthetically that even if you accept or believe the argument around personal responsibility and free consumer choice in our individualistic society, it’s harder to make that argument for children, who have a more difficult time making informed food choices as rational consumers. If these aggressive-marketing-to-children’s suits do reach a federal level and are nationalized, this could far outstrip the cases in the tobacco fights around illegitimate print advertising. This could be a huge change removing, for example, commercials from television for sugary, high-fat, low-nutrition cereals, and other kinds of food products. If this seems absurd to you and are, again, individualistic, anti-government nation, I would remind you that in many other areas in American history… The government has, over time—it’s a slow moving beast, our national government—but has eventually charged into areas with heavy prohibitory actions in areas like alcohol, drugs, tobacco, and even sex. All these areas are regulated heavily by the US government. They used to be considered just as private and personal a choice as food is today.

The second type of legal suit, and this has found success at a national level, is deceptive advertising by fast food companies and packaged food manufacturers. These are found to be in violation of consumer protection laws. There have already been suits, I don’t know if you noticed this, but there’s already been lawsuits won against companies, both large and small. McDonald’s, for example, settled a $12.5 million suit around how it’s fries were cooked, advertising one thing, doing it a different way. And smaller companies like Robert’s American Gourmet, the makers of the popular “Pirate’s Booty” line of snacks, paid out over $3 million in a class action lawsuit around how “light” or “low calorie” their snack foods actually were.

Lots to say about the benefits and limits of court action. Again, as someone who has some expertise in medical malpractice—I wrote a book about that—I’m familiar with most physicians’ responses to this kind of area. And, again, it’s not my chosen route of action, but it is the only area in which there has been action at the national level in the last 7 or 8 years.

I’ll close with 2 quick points. The first asks the question, if the Federal government were to mobilize against obesity, what might it do? And there are 5 different categories of response. I’ll quickly run through on the slides. This is, again, what the Federal government might do if this movement towards government action builds up steam as obesity rates continue to rise dramatically as you saw on the maps. And this is just a kind of general category, happy to share this slide with any of you who’d like to go further into the conversation.

Government can control the conditions of sale. Lots of activity around schools. It’s all been at the local level so far, but there are a couple of bills pending in the Senate that would change the kinds of things that school cafeterias are allowed to sell or at least change the nutritional requirements. Government can raise prices through sin taxes. It may surprise you to know that 24 states featured so-called “junk food” taxes, typically a penny per can tax on carbonated soda beverages that were high calorie, low nutrition. 24 states had junk food taxes in the year 2003, 5 years ago, partly in response to the surgeon general’s warning about an epidemic. Today, one state has a junk food tax. The food industry successfully rolled back—either in court or in legislative arguments—rolled back 23 of those states’ junk food taxes. The government can actually litigate. The government can go to the courts, as it has in some cases, against producers of unhealthy substances. Typically these government lawsuits earmark damage awards for health care or healthy alternatives, helping to pay for the enormous, again, hundreds of billions of dollars costs that obesity is held to cause in medical care.

Governments can regulate marketing and advertising. For example, this menu labeling that you all either do see now or will soon see across California. I’ve done the first empirical study of whether menu labels make a difference in New York City they were imposed in July. The news so far, for what it’s worth, is that in higher income, more educated consumers, the food labels matter. For lower SES individuals, those in poorer neighborhoods, unfortunately those who are most afflicted by obesity, they don’t make any difference, these food labels. We need stronger solutions it turns out. Finally, the government can attempt moral suasion, work with food companies to try bring about change.

One remarkable story you have not heard that I’m allowed to share here today, I was part of a group that worked with a large American fast food company. I won’t say the name, but they’re represented by a clown, in a project that developed first in the Northeastern US—New York and New Jersey only. They quietly undertook an effort to remove half the salt, sugar, and fat from the mayonnaise they used in their sandwiches and various kinds of products. They said nothing about this to the public. It turns out food companies know well that when you advertise some sort of lower calorie or light product people don’t like it as much. So this company, without any public notice whatsoever, removed, reformulated its mayonnaise so it has half the calorie content and, again, half the salt, sugar, and fat it did before. So far no one has noticed a difference. And I invite those of you who are from the tri-state area, next time you go to McDonald’s buy one in New York and then by one in Pennsylvania and see if you can tell the differences. Same tasting mayonnaise but…And the point is, government can work with the food industry. The remarkable chemical abilities these companies have to reformulate their products so that this Blackberry that I have they can turn into making it taste like butterscotch with the right kind of chemical change. This is another area that government can actually make a difference.

Here’s my last point. There’s a cultural side to this obesity/politics story as well. Americans have often rethought our private behavior, again, in realms like smoking and drinking in the last century alone. When advocates detect a crisis, define a problem, and seek a solution, they are, if indirectly, educating the public. As political conflict on obesity grows, spreads into the courts, possibly regulatory limits are set by government, it generates considerable attention, political heat, if you will. All our past efforts to regulate private behavior in this country testify—and again, I’m referring to efforts to regulate alcohol, tobacco, drugs, even sexual behavior, these areas we thought of as private—all of them testify that perhaps the most important consequence—the political, public health, and medical assault on a particular behavior—may lie not so much in our political changes, but the changes citizens make in their own personal lifestyles. So from an environmental to a personal frame can actually make a difference through the work of politics. Thanks so much for your attention to this. It’s a vital issue and I look forward to talking more.

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