Should We Legislate Our Weight?

The wallets of millions of Americans might be slimmer these days, but their waistlines certainly aren’t. What can we do about it, and what should we do about it? Can we pass new laws? Should we not hire  - or fire – someone who is fat because they might require more health care? Is it the role of government and employers to educate – or legislate – around health issues? Both? Neither?

Okay, so some of these questions lean in the direction of rhetorical, right? I mean you don’t think a writer for Staffing Talk is going to solve the nation’s heath care crisis, did you?

Fortunately I did find someone to help us sift through this interesting issue, someone uniquely qualified to frame the philosophical debate in terms of how you define a public health interest versus an individual health interest.

Jessica Wilen Berg is a Professor of Law and Bioethics at Case Western Reserve University in Ohio. She has a joint appointment in the School of Law and the Department of Bioethics at the Medical School.

“Employers are clearly concerned about rising healthcare costs since they are ‘footing the bill’ so to speak– either paying insurance premiums or (in the case of most large employers) self-insuring,” states Professor Berg, JD, MPH, in an exclusive interview with Staffing Talk. “And even those that do not pay directly (i.e., just pass on the premium costs to employees) may be concerned about keeping those premiums down for their employees. State’s too have an interest in keeping these costs down. We know less about productivity. In some jobs weight may not make much of a difference. In others, clearly, weight can be such a crucial factor that is it part of a job description.”

Berg reminded me in response to one statement I made that not all overweight people necessarily belong in the unhealthy category. And further, she says that there are many things people do that are unhealthy and we do not (and cannot) simply legislate against all poor choices (or crack down upon them as employers– technically employers do not legislate).

“Obesity has many causal factors– some of which may be beyond the individual’s control. Moreover, penalties for being overweight can rest unfairly on certain groups in the population (e.g., obesity rates vary based on race, ethnicity, and socio-economic status). It may also be difficult to craft your restrictions to target only the behavior you want to target. If you tax unhealthy food– what counts as unhealthy? There is some evidence that fruit juices can be as problematic from a calorie standpoint as soda (although obviously there are other problems with soda).”

There is certainly plenty of awareness around this issue, we hear it being talked about all the time. The majority of overweight or obese Americans (60%) themselves even identify obesity as the number one threat to public health in a new study by Catalyst Healthcare Research.

Should we emulate Japan perhaps? You might recall in 2008 Japan’s Ministry of Health passed the “metabo” law, undertaking one of the most ambitious efforts ever by one country to attempt to legislate against obesity.

Of course this is at least somewhat ironic given that Japanese people, with only 3% population obesity, are one of the least obese developed countries on the planet, although they have reportedly become heavier in the past three decades.

The campaign started when the Health Ministry began to talk about a medical condition few Japanese had ever heard of: metabolic syndrome. It’s actually a collection of factors that heighten the risk of developing vascular disease and diabetes. Those include abdominal obesity, high blood pressure and high levels of blood glucose and cholesterol.

The “condition” was shortened to metabo, and as The New York Times reported, it became that “nation’s shorthand for overweight.”

Under Japan’s health care coverage, companies administer check-ups to employees once a year. Those who fail to meet the waistline requirement must undergo counseling. If companies do not reduce the number of overweight employees by 10 percent by 2012 and 25 percent by 2015, they could be required to pay more money into a health care program for the elderly. An estimated 56 million Japanese have their waists measured every year.

“Due to the check up, there is increased public awareness on the issue of obesity and metabolic syndrome,” said James Kondo, president of the Health Policy Institute Japan.

Of course we haven’t gone quite that far in this country. Still, there have been some legislative efforts in this area.

The American Medical Association supported legislation to ban the use of artificial trans fats in restaurants and bakeries nationwide, something New York City and the state of California have already done.

“Trans fats have been proven to raise LDL (low density lipoprotein), the bad cholesterol, while lowering HDL (high density lipoprotein), the good cholesterol, which significantly increases the risk for heart disease,” said AMA board member Dr. Mary Anne McCaffree.

Lawmakers in the Illinois State Senate rejected a proposal to ban trans fats in many foods, even though their colleagues in the House had passed the measure.

One opposing senator, Mike Jacobs, part of the group nicknamed the “doughnut caucus” by the lawmakers who supported the bill, voted against it because he didn’t want Illinois becoming a “nanny state” and making decisions about diet and health for him, according to the St. Louis Post-Dispatch.

Others have called for soda taxes and laws against advertising junk food to children. Posting calorie counts in chain restaurants, already required by some states and cities, became law under health care reform legislation.

There are several states that require schools to screen students for body mass index, or BMI, even as they cut gym class and recess and after school sports.

Can we legislate our way into skinny jeans? Should we even try?

Mary Kate Cary, a blogger for U.S. News and World Report, writes: “Once we start the ‘sin’ taxes, where do they end — Doughnuts? Caesar salad dressing? Whole milk instead of skim? For that matter, how about La-Z-Boy recliners?”

“Once we start the ‘sin’ taxes, where do they end — Doughnuts? Caesar salad dressing? Whole milk instead of skim? For that matter, how about La-Z-Boy recliners?”

Professor Berg says employers can take some actions that are “less problematic from a fairness perspective.”

“It may be better for employers to focus on ‘pushing’ good behavior than punishing what might be perceived as problematic behavior. Make sure there is healthy food available to your employees (and perhaps take some particularly unhealthy foods off your grounds altogether). Even little things like moving the location of the candy in the vending machines can help. Provide incentives for health programs, including exercise (and perhaps even allow time during the day for organized activities like walks, yoga, etc.). Overall, make healthy choices easier and unhealthy choices harder (see generally the book/website Nudge). There are a lot of “tools” an employer (and State) can use to combat the growing obesity problem. Employers should be encouraged to be creative in this area, but sensitive to both the concerns about unfairness and the limits of appropriate interference with employee lives.”

I listened online to a WCPN radio show from Cleveland that Professor Berg participated in called The Sound of Ideas. The host raised the argument that we banned smoking in public buildings, and wondered if we could do the same with soda or other sweets. Berg said “the smoking issue was really one of harm to 3rd parties, and this is where we start to get distinctions between tobacco and food.”

What of that notion though of 3rd party damage? If I breathe your secondhand smoke of course it is harmful. But if I am paying higher health care costs because a co-worker is obese and has a horrible diet and had a heart attack, isn’t that hurting me as well, albeit in a different way?

Okay, it’s time for you to “weigh” in. Should we/can we legislate our diets and our waistlines? Does government, or my employer, have the right – either legal or moral – to tell me what I should consume and how fit or fat I should be? Should we emulate Japan’s model?

I can’t wait to read your comments. I’ll be back right after I go to the break room and fuel up on some Christmas cookies.

Tagged as: Japan, metabo law, nanny state, obese, overwe, overweight, public health threat, sin tax, soda tax, trans fats