Performance-based regulation: enterprise responsibility for reducing death, injury, and disease caused by consumer products.

This article offers a bold new idea for confronting the staggering level of death, injury, and disease caused by five consumer products: cigarettes, alcohol, guns, junk food, and motor vehicles. Business leaders try to frame these negative outcomes as "collateral damage" that is someone else's problem. That framing not only is morally objectionable but also overlooks the possibility that, with proper prodding, industry could substantially lessen these public health disasters. I seek to reframe the public perception of who is responsible and propose to deploy a promising approach called "performance-based regulation" to combat the problem. Performance-based regulation would impose on manufacturers a legal obligation to reduce the negative social costs of their products. Rather than involving them in litigation or forcing them to operate differently (as "command-and-control" regimes do), performance-based regulation allows the firms to determine how best to decrease bad public health consequences. Like other public health strategies, performance-based regulation focuses on those who are far more likely than individual consumers to achieve real gains. Analogous to a tax on causing harm that exceeds a threshold level, performance-based regulation seeks to harness private initiative in pursuit of the public good.

Innovative legal approaches to address obesity.

CONTEXT: The law is a powerful public health tool with considerable potential to address the obesity issue. Scientific advances, gaps in the current regulatory environment, and new ways of conceptualizing rights and responsibilities offer a foundation for legal innovation. METHODS: This article connects developments in public health and nutrition with legal advances to define promising avenues for preventing obesity through the application of the law. FINDINGS: Two sets of approaches are defined: (1) direct application of the law to factors known to contribute to obesity and (2) original and innovative legal solutions that address the weak regulatory stance of government and the ineffectiveness of existing policies used to control obesity. Specific legal strategies are discussed for limiting children's food marketing, confronting the potential addictive properties of food, compelling industry speech, increasing government speech, regulating conduct, using tort litigation, applying nuisance law as a litigation strategy, and considering performance-based regulation as an alternative to typical regulatory actions. Finally, preemption is an overriding issue and can play both a facilitative and a hindering role in obesity policy. CONCLUSIONS: Legal solutions are immediately available to the government to address obesity and should be considered at the federal, state, and local levels. New and innovative legal solutions represent opportunities to take the law in creative directions and to link legal, nutrition, and public health communities in constructive ways.

Using performance-based regulation to reduce childhood obesity.

BACKGROUND: Worldwide, the public health community has recognized the growing problem of childhood obesity. But, unlike tobacco control policy, there is little evidence about what public policies would work to substantially reduce childhood obesity. Public health leaders currently tend to support traditional "command and control" schemes that order private enterprises and governments to stop or start doing specific things that, is it hoped, will yield lower childhood obesity rates. These include measures such as 1) taking sweetened beverages out of schools, 2) posting calorie counts on fast-food menu boards, 3) labeling foods with a "red light" if they contain high levels of fat or sugar, 4) limiting the density of fast food restaurants in any neighborhood, 5) requiring chain restaurants to offer "healthy" alternatives, and 6) eliminating junk food ads on television shows aimed at children. Some advocates propose other regulatory interventions such as 1) influencing the relative prices of healthy and unhealthy foods through taxes and/or subsidies and 2) suing private industry for money damages as a way of blaming childhood obesity on certain practices of the food industry (such as its marketing, product composition, or portion size decisions). The food industry generally seeks to deflect blame for childhood obesity onto others, such as parents and schools.

Fighting childhood obesity through performance-based regulation of the food industry.

That childhood obesity is an alarming public health problem is clear and widely appreciated. What is altogether unclear is what our society should do about it. Some people think the solution lies in using tort law to sue McDonald's, Coca-Cola, and other corporations. We reject that notion. Others believe that government should order specific changes in the behavior of food companies and school officials--and yet, there is little reason for confidence that these "command and control" strategies will make a difference. Instead, we propose "performance-based regulation" of the food industry. This is analogous to the approach our country is now taking with respect to elementary and secondary education (most prominently in the No Child Left Behind legislation). Schools are not told how to achieve better educational results, but better outcomes are demanded of them. This strategy has also been used in the environmental context to reduce harmful power plant emissions, and it has been briefly proposed as a way of regulating cigarette companies. In this Article, we propose that large firms selling food and drink that is high in sugar or fat will be assigned the responsibility of reducing obesity rates in a specific pool of children. A firm's share of the overall responsibility will be based on its share of the "bad' food market, and the children assigned to it will be organized by geographically proximate schools where obesity rates are currently above the plan's nationwide target rate of 8 percent (the actual childhood obesity rate today is approximately 16 percent). Firms that fail to achieve their goals will be subject to serious financial penalties.

A balanced tobacco control policy.

By raising the price of cigarettes through tobacco taxes, policymakers might only be delaying some smokers' initiation of smoking rather than permanently preventing them from smoking. This is one of several reasons for adopting a balanced tobacco control policy that relies only in part on cigarette taxation.