Running head: JUNK FOOD REGULATIONS The Constitutionality of the Government Regulating What Unhealthy Food Products Americans Buy and Consume Amy Hulse First Colonial High School 1 2 JUNK FOOD REGULATIONS Abstract This paper discusses the reasons why the government has the ability to regulate unhealthy foods and the reasons why these regulations would benefit Americans and schools. Many people debate how constitutional these regulations/laws are and if we actually need help. Obesity rates have been on the rise. The health of all Americans is important, but the only way to make us a healthier country is to influence the bad choices we tend to make. This paper goes over the negative effects and impacts that junk food has on Americans. It states that it is the government’s responsibility to influence the food choices that Americans make, and also that the government regulation of food and beverages in schools will help make future generations healthier by giving children and teenagers better choices so that they will make better decisions for their bodies. Another thing this paper considers is that some states have laws that regulate unhealthy foods, but since the issue of junk food regulations is relatively modern there are no court cases that directly involve this issue. Overall, regulations, taxes, and/or laws made by the government benefit the health of Americans. Keywords: American Heart Association (AHA), Food and Drug Administration (FDA) 3 JUNK FOOD REGULATIONS The Constitutionality of the Government Regulating What Unhealthy Food Products Americans Buy and Consume Whenever the government begins to try to help solve a problem, there will always be people who complain because their “freedoms” are being taken away. A government was originally created to help a faction of people make better decisions. Now, government is seen as the enemy and this big corporation that only wants our money. That is not true. When the government sees a problem occurring over and over again and increasing in severity, they take action (or at least attempt to). The regulation of what we eat is how the government is trying to cut down obesity rates and help us make wiser choices on what we think we should eat. Americans have formed bad habits that have altered their bodies. Some people say that the government has no right to alter the prices of what we consume (both good and bad) and has too much power already, but it should be constitutional for the government to regulate the unhealthy foods that we eat for these reasons: it is the government’s responsibility to influence the choices we make, keep schools healthier and a better environment for generations to come, and create laws, regulations, and/or taxes to benefit the health of Americans, which has been done by some states, however, they are not hugely impacting the country. 4 JUNK FOOD REGULATIONS Discussion Effects of Junk Food on Americans Junk food has had negative effects on the lives of Americans. The American Heart Association (AHA) updated their statistical fact sheet for 2012. On this document, obesity and overweight statistics for youth and adults, charts and graphs, and costs are all listed. Interestingly, it says, “overweight adolescents have a 70% chance of becoming overweight adults” (AHA, 2011). In America, 75.0 million are obese, with 34.9 million being men, and 40.1 million being women (AHA, 2011). One thing to keep in mind is that unhealthy citizens create higher healthcare costs for a country. Currently the total costs related to obesity are about $254 (AHA, 2011). The AHA estimates, “if current trends in the growth of obesity continue, total healthcare costs attributable to obesity could reach $861 to $957 billion by 2030, which would account for 16% to 18% of US health expenditures” (AHA, 2011). That money could be going to something the country needs instead of being used to take care of unhealthy people caused by being overweight. Benefitting the Health of Americans Regulations, taxes, and laws made by the government can benefit the health of Americans. Without the government’s actions, Americans will continue to live unhealthy lifestyles filled with oversized drinks, junk food, and enormous portion sizes. The ways that candy and junk food have changed over the years is astonishing. “Butterfinger candy bars, beginning at 280 calories, surged to 680 calories” (Reiland, 1998). People will do anything to get more money. Food and beverage industries that sell junk food have “used marketing tactics specifically designed to target certain minority groups” (Yanamadala, 2012). This marketing technique is using the innocent to sell more products. 5 JUNK FOOD REGULATIONS Critics of any beverage or food regulations in schools point out that school funding could be affected if the revenue generated from certain food and beverage companies is terminated because of the regulations. Duval, Clay, and St. Johns County schools in Florida “use cash generated from beverage contracts and sales to support athletic programs, extracurricular activities, student rewards and field trips” (Sanders, 2010). This reliance on outside resources to collect money to help the schools run efficiently as possible is so deep that in 2009, “the three districts netted a combined $2.4 million” (Sanders, 2010). Just three schools used that money. The main reason why this is a problem is because the products that the beverage companies sell are not healthy. If the ban on these drinks goes into effect, the school systems will have to look elsewhere to gain revenue. There are alternatives to just banning all the drinks together, in fact, “the American Beverage Association has supported voluntary restrictions on vending machine fare, calling for a reduced presence of high-calorie sodas in middle school and high school lunchrooms” (Sanders, 2010). No one wants the vending machines to go away, just improve what’s in them so that the students in middle and high school will have healthier options to drink. Tom Vilsack, who is the Agriculture Secretary, agrees saying that he does not want to completely remove the vending machines, but rather “improve what’s offered in them” (Sanders, 2010). The government seems to be on board with making America healthier. One reason why this is true is because The National Prevention Council released on June 16, 2011 the National Prevention Strategy. The plan has a section titled Healthy Eating. This strategy said that “63% of adults and 84 percent of adolescents consume at least one sugar-sweetened beverage each day” (Healthy Eating, 2011). This fact is important 6 JUNK FOOD REGULATIONS because it shows that younger generations are the ones who need the most help in curbing their appetite for drinking sugared beverages daily. The article also points out that having a “relative lower cost of junk foods can promote over-consumption of calories” (Healthy Eating, 2011). Not only are people buying junk food, but they are buying more than they should be. The article also says that the government will “implement programs and regulations to increase access to healthy food and eliminate food insecurity” (Healthy Eating, 2011). This is important because it shows that the government wants to help. This National Prevention Strategy is evidence that the government does care, wants to make changes as easily as possible, and will make future plans to benefit the lives of Americans. The small steps are the ones that matter; they add up to big changes, but these changes will not be effective unless they are actually put into action. A tax on sugared beverages and unhealthy junk food could help the government economically. An article titled “Desperate Measures: Financially Strapped Governments Tax Junk Food ... What's Next?” talks about how 33 states plus the District of Columbia already “tax candy and soft drinks at a higher rate (5.2 percent on average) than they do essential groceries, such as cheese, fruit, meat and vegetables” (Vastag, 2010). The article goes on to explain that finding out the exact tax laws are hard because of vagueness and multiple differences between the states but it did say, “The typical American guzzles 50 gallons of soft drinks, bottled iced tea, sports drinks and sweetened beverages each year. That means that an average consumer who lives in one of the 33 states that tack on extra tax to soft drinks pays an extra $10 a year” (Vastag, 2010). The article also describes why these taxes are beneficial to the government. In fact, the article quoted Urban Institute claiming, “Over 10 years, the federal government would raise about $350 billion to pay 7 JUNK FOOD REGULATIONS health-care costs and fund obesity prevention programs” (Vastag, 2010). That extra money could help pay off debts and reduce the amount of budget cuts for well needed programs. The ban would also influence the way Americans consume and how much calories they consume. The article interestingly includes, “The Coronary Artery Risk Development in Young Adults study, which was funded by National Institutes of Health from 1985 to 2006, concluded that an 18 percent increase in the price of soft drinks led to people consuming about 100 fewer calories per day. That translates into 2 pounds per year of weight lost” (Vastag, 2010). Consuming fewer calories can be one more way for Americans to be healthier instead of heavier. State Laws Some states have laws that regulate unhealthy foods. Because of the rising obesity rates with “more than 2/3 of the U.S. population being overweight or obese,” something must be done to help Americans slow down and rethink their consumer choices (Brownlee 2012). An article recently published in October of 2012 revealed, “the New York City Board of Health recently approved a ban on the sale of sodas and other sugarloaded drinks bigger than 480 milliliters (16 ounces) in restaurants, movie theaters, and stadiums” (Brownlee, 2012). This ban will begin in March of 2013 (Jaslow, 2012). According to Ryan Jaslow, “The ban will apply in restaurants, fast-food chains, theaters, delis, office cafeterias and most other places that fall under the Board of Health’s regulation. Exempt from the ban are sugary drinks sold at supermarkets or most convenience stores and alcoholic and dairy-based beverages sold at New York City eateries” (Jaslow, 2012). This ban would help decrease the amount of liquids people consume, and also would decrease the amount of waste us humans discard onto the earth. 8 JUNK FOOD REGULATIONS Less really is more. The less we consume, the less we throw away, the less we gain weight, and the more space is available on earth. Because food these days is cheaper than it has been in the past, “people buy and eat more, and restaurants serve much bigger portions (Brownlee, 2012).” Another reason why the ban would help instead of hinder is because of the children. Children tend to follow the same lifestyles as their parents, which if their parent leads an unhealthy lifestyle, the children would most likely follow those unhealthy habits. The article stresses the severity of childhood obesity by providing the estimate that about 17% of children ages 2 to 19 are obese (Brownlee, 2012). The article explains that lack of physical activity could be a factor in why the obesity rates are so high and backs it up with the statement, “Now time for P.E. has dwindled, and kids spend more time on their phones or computers (Brownlee, 2012).” Children are not exercising as much anymore, and technology is keeping people in their seats instead of moving. New York seems to be the state that has the most influence in regulating food and beverages. Back in 2008, New York City banned hydrogenated oils that contain transfats. This change in meal preparation “means that New Yorkers get less trans-fat with their fast food, even in low-income neighborhoods (Nestle, 2012).” Virginia may not have accessible laws that directly ban certain foods, but they do have a law that explains the parameters of excise taxes. Law §58.1-3840 from the Code of Virginia states that “Any city or town having general taxing powers established by charter pursuant to or consistent with the provisions of §58.2-1104 may impose excise taxes on cigarettes, admissions, transient room rentals, meals, and travel campgrounds” (Code of Virginia). This means that the city of Virginia 9 JUNK FOOD REGULATIONS Beach has the ability to tax food. Vending machines are also a main proponent in the fight to control junk food. However, the law currently says, “No such taxes on meals may be imposed on (iii) food and beverages sold through vending machines or on any tangible personal property purchased with food coupons issued by the United States Department of Agriculture…”(Code of Virginia). This means that vending machines cannot be taxed. All of the money that comes from selling the foods in the vending machines goes directly back to the manufacturer, which would not help deter purchases of unhealthy snacks. Food Choices It is the government’s responsibility to influence the food and beverage choices that Americans make. People do not have the conscious ability to look out for each other. Humans are selfish creatures who just want more and more, and the government was originally designed to help us share and have a faction of people help us make better choices. One part of the government that has seen some of the negative impacts of uncontrolled junk food consummation is the military. Not many people think of childhood obesity affecting the military and its future plans, but if the numbers of children who are overweight keep increasing, there will be fewer citizens able to join the military. This would in turn weaken the power of the military and the numbers that it relies on to make it work so efficiently. One article titled “Military leaders battle junk food,” quotes retired Air Force lieutenant general Norman Seip as saying, “three-quarters of those ages 17 to 24, or about 26 million young people, cannot serve in the military, a quarter of them because they are overweight or obese” (Hellmich, 2012). Norman Seip also said that “We look at childhood obesity not only as a health crisis but a national security issue” (Hellmich, 10 JUNK FOOD REGULATIONS 2012). It is crucial that childhood obesity begins to decrease instead of increase, or else America may not have as safe of a future as it does now. When the military sees something as an issue, it is legitimate and needs to be fixed as soon as possible. Unfortunately, something as sensitive as obesity is not something that can be fixed easily. It takes time and the effort of every American and also everyone in the world. Seth Stern, the author of “Fast Food is Linked to Obesity and Other Serious Health Problems” wrote, “Nutritionists say that the [nutritional] information [on fast food products] doesn’t put the calories in a context people can understand” (Stern, 2005). Even though there are laws that require fast food chains to have their nutritional information on all their products available to the public, it is not simple enough for people to make their choices. Stern mentioned John Banzhaf III, a law professor at George Washington University, who acknowledges that making a whole bunch of laws is not going to do much. Banzhaf would “like nutritional information on fast-food menu boards and wrappers or even health warnings similar to the ones now required on cigarettes” (Stern, 2005). If the information is right next to the product the consumer is purchasing, then they might think twice about what they are getting and how much. Yes, the fast-food industries prevalent in America will most likely lose some business, but the health of Americans is way more important than selling cheap food to make fast cash. Some people do not agree with more control over food and beverage products that Americans purchase and consume. They fear that the Food and Drug Administration (FDA) already has too much power and is abusing it by not allowing health information that could benefit the consumer (Dudley, 2003). This is concerning if it is true. The government needs to be making laws that require all information to be printed whether it 11 JUNK FOOD REGULATIONS is that the product is harmful to a consumer or actually beneficial to their health. It seems like the FDA does not want products generally viewed as previously unhealthy to suddenly be known as good for you to some extent. For example, “While a bottle of red wine bears FDA-required labels warning it contains sulfites and may cause health problems, the FDA prohibits vintners from mentioning on the label (or in advertising) that moderate wine consumption may reduce the risk of heart disease” (Dudley, 2003). The FDA is hindering progress instead of allowing everything to be said, which would give consumers a better chance to make the right decision for their own personal self. Fixing problems like the ones previously mentioned will help American consumers trust the judgment and decisions of the government concerning future possible junk food regulation. Regulation in Schools Government regulation of food and beverages in schools will help make future generations healthier by giving children and teenagers much better choices to consume, which would help reduce obesity rates and instill good decision making processes into their everyday lives. There was a very important study done that helped form a potential coalition between the types of food laws that a state has and its childhood obesity rates over a period of time. According to the article “Strict junk food laws may help curb kids’ obesity, study finds,” the person conducting the study split the laws into two groups; strong and weak. The researcher decided, “laws were considered strong if they included specific nutrition requirements…and laws were rated weak if the requirements were vague and merely urged sales of “healthy” food without specifics” (Tanner, 2012). The study showed that some children “gained less weight from fifth through eighth grades if 12 JUNK FOOD REGULATIONS they lived in states with strong, consistent laws versus no laws governing snacks available in schools” (Tanner, 2012). This fact is useful because it further validates a relationship between the influences of laws governing what students are allowed to eat and the obesity rates of those schools over a specific period of time. A more specific example of this relationship is “In states with consistently strong laws in elementary and middle school, almost 39 percent of fifth-graders were overweight when the study began. That fell to 34 percent in 8th grade” (Tanner, 2012). This decrease in overweight children is not big enough to show a direct relationship between state laws and child obesity rates, but it does raise attention to the effects the government could have on its citizens. The study never listed any specific laws and did not identify any states that they reviewed because of confidentiality reasons, but the article appears to be unbiased, and the study seems plausible. An elementary school cafeteria should be filled with fruits, veggies, and various types of meat, but instead “9 out of 10 schools offer junk food to kids” (Schools, 2011). One anonymous concerned mother from Pennsylvania wrote the article “schools should not promote junk food” in the York Daily Record. She was concerned that her child was being rewarded in school with junk food, and it was altering his eating habits. She sees her son being exposed to advertisements from fast food places and junk food companies every day, but she did not expect her son to come home and whine to go to McDonalds (Schools, 2011). She found out that her son’s homework focused on different fast food brands for a vocabulary practice worksheet, which she believes is the reason why he asked to go to McDonalds because he had never asked her before. Some people may say that she was just overreacting, but she just wants to see a positive change in her local 13 JUNK FOOD REGULATIONS school system and eventually all in America. However, it is possible that the government intervenes too much when it comes to school lunches. For example, “a preschooler at West Hoke Elementary School ate three chicken nuggets for lunch Jan. 30 because the school told her the lunch her mother packed was not nutritious” (Burrows, 2012). The article providing this example was vague in what exactly happened that day, but basically a little girl went to school with a sandwich and some fruit, which the lady inspecting her lunch thought was insufficient according to Health and Human Services. The girl was given a cafeteria issued lunch that met the guidelines, but the child only decided to eat the chicken nuggets instead of the lunch her mom packed her. Her mother was angry because she had to pay for the lunch, her child did not even eat all of the lunch the school gave her, and she does not think the government should have that much control over what her daughter was eating. There were some issues with the article, which were just some wording errors, but overall the article gave some insight into when the government goes too far in trying to do what is right. Keeping the balance between regulation and free will is difficult, but not impossible for the government. Restricting Food There are currently no major court cases that deal with food regulation, but some parts of the government have tried to help control the effects of junk food. “The FDA launched a voluntary labeling program in 1973,” which was later mandated in 1990 (Kersh, 2012). Obesity is such a problem in America because “physicians and nutritional scientists identified several risk factors contributing to obesity and definitively linked being overweight to cardiovascular disease, diabetes, and other life-threatening illnesses” (Kersh, 2012). Obesity causes other problems as well. A study published in Public 14 JUNK FOOD REGULATIONS Library of Science One showed that junk food diets are unhealthy. “A junk food diet contains many ingredients associated with increased risk for coronary artery disease, stroke and Type 2 diabetes, including saturated fat, trans-fat, sodium and cholesterol” (Perry, 2012). Regulation of foods is constitutional according to the article “Portion Sizes and Beyond.” It says that “regulations that affect “ordinary commercial transactions” (such as the sale of a product) are presumed to be constitutional if they have a rational basis and if the government body enacting them has the appropriate knowledge and experience to do so” (Pomeranz, 2012). Conclusion Regulating unhealthy foods and beverages is not something that everyone wants, but it is necessary to help keep Americans in check. We are creatures of habit and do not want the freedom of choice to be taken away. It is not going to be taken away; we will just have better choices to choose from. If we do not want to pay extra for ginormous portions of drink and unhealthy foods, then people just do not have to buy them. In order to determine that junk food regulations are constitutional, one must realize that some people believe that the government does not have the right to deter a citizen in any way from purchasing what he or she ants and that the government has too much power already. However, this research paper has given enough facts and discussions to claim that it should be constitutional for the government to regulate the unhealthy foods that we eat for these reasons: it is the government’s responsibility to influence the choices we make, keep schools healthier and a better environment for the generations to come, and create laws, regulations, and/or taxes to benefit the health of Americans, which has been 15 JUNK FOOD REGULATIONS done by some states, however, there are only a few court cases that indirectly involve junk food regulations. What we eat should not be completely controlled; just the amount we consume should be regulated or monitored. The government does not need to abuse its power on Americans, but it should try harder to pass legislation that would help rein us in and decrease obesity rates instead of allowing them to continue to rise. The health of American is the main concern that this country needs to be more aware of, and nothing is going to change unless people actually try. 16 JUNK FOOD REGULATIONS Resources Brownlee, C. (2012, Oct 29). Is your soda killing you? Science World, 69, 16-19. Retrieved from http://search.proquest.com/docview/1114290294?accountid=3785 Burrows, S. (2012, February 14). Preschooler’s Homemade Lunch Replaced with Cafeteria Nuggets”. Carolina Journal Online. Retrieved November 29, 2012, from http://www.carolinajournal.com/exclusives/display_exclusive.html?id=8762 Cohen, D., & Rabinovich, L. (2012, Sep 16). Today’s ‘demon rum’ to curb obesity, we need anti-junk food efforts that recall the fight against the compulsive overdrinking of the 1800s. 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