Parens Patriae: A Flawed Strategy for State-Initiated Obesity Litigation

Article excerpt

TABLE OF CONTENTS

INTRODUCTION

I. HISTORY OF PARENS PATRIAE AND
   DEVELOPMENT OF THE MODERN DOCTRINE
   A. Modern American Doctrine of Parens Patriae
   B. Parens Patriae and Tobacco Litigation
II. INADEQUACIES OF PARENS PATRIAE AS A STRATEGY FOR
    OBESITY LITIGATION
   A. Deficient Causation
      1. Strong Causation in Early and Modern
         Parens Patriae Jurisprudence
      2. Strong Causation in State-Initiated
         Tobacco Litigation
      3. Causation Discrepancies Between Tobacco and
         Obesity Litigation
   B. Parens Patriae and Its Geographic Limitations
      1. Economic Harms and the Geographic
         Limits of Parens Patriae
      2. Environmental Harms and the Geographic
         Limits of Parens Patriae
      3. Health-Related Harms and the Geographic
         Limits of Parens Patriae
      4. Geographic Limits in Parens Patriae
         Obesity Litigation
      5. Massachusetts v. EPA and the Geographic
         Limitations of Parens Patriae
   C. Public Nuisance as the Underlying Tort for
      Parens Patriae Actions
      1. Public Nuisance and Its Historical Background
      2. Public Nuisance and Tobacco Litigation
      3. Products Liability Jurisprudence and
         Public Nuisance
      4. Environmental Jurisprudence and
         Public Nuisance
      5. Modern Public Nuisance and Parens
         Patriae Obesity Litigation
   D. Why Tobacco Litigation Settled
III. ALTERNATIVES TO PARENS PATRIAE
     OBESITY LITIGATION
     A. Other Attorney General Tools
     B. Subrogation
     C. Legislation
CONCLUSION

INTRODUCTION

In the United States today, roughly 36 percent of adults twenty years or older are obese, and 6.3 percent are considered extremely obese. (1) Since 1960, the number of adults who are obese has doubled. (2) An estimated 300,000 deaths annually are linked to obesity, (3) and the medical cost associated with treating obesity and its related diseases is a staggering $147 billion per year. (4) Obesity is now considered an epidemic, and unlike smoking, the nation's leading cause of preventable death, (5) the number of obese citizens is rising. (6)

Government has responded to this crisis in a variety of ways. Congress proposed bills such as the Healthy Lifestyles and Prevention America Act, (7) the Fit for Life Act, (8) and the Healthy Foods for Healthy Living Act. (9) Several states passed bans on the sale of junk food and soda in public schools. (10) Washington, D.C. recently enacted the Healthy Schools Act, a sweeping piece of legislation aimed at improving the quality of food served in public schools, encouraging physical activity, and promoting nutrition education. (11) Likewise, various executive agencies recently developed programs aimed at curbing the obesity epidemic. The Centers for Disease Control established the Division of Nutrition, Physical Activity and Obesity. (12) The U.S. Department of Agriculture began its "Eat Smart. Play Hard." campaign, (13) and perhaps most famously, First Lady Michele Obama created the "Lets Move!" initiative. (14)

Paralleling the proliferation of legislative and executive responses to the obesity epidemic are "obesity lawsuits," in which the plaintiffs allege that food producers and restaurants are responsible for making them overweight and unhealthy. (15) Courts tend to be skeptical of such obesity suits, (16) and Congress famously responded to such litigation with the American Personal Responsibility in Food Consumption Act, also known as the "Cheeseburger Bill." (17)

Perhaps in response to the failure of private-party litigation, health and nutrition advocates have urged state attorneys general to sue the food industry under their parens patriae authority. (18) Under the common law doctrine of parens patriae, a state attorney general may bring an action against a party that has harmed the health or economic well being of the citizens of the attorney general's state. (19) Proponents of attorney general-initiated parens patriae obesity suits look to the tobacco litigation of the mid-1990s as a template for such obesity litigation. …