Shame, Blame, and the Emerging Law of Obesity Control

In using law as a tool to combat the obesity epidemic, legal scholars and policymakers are drawing heavily on the lessons of tobacco control. This Article describes the resulting emergence of “obesity control law” and argues for a radical reorientation of it from a “denormalization” strategy based on the tobacco control experience to a “destigmatization” strategy based on the HIV prevention experience. The war on obesity is nearing a political crossroads. Subsidies and food industry regulations aimed at making our environment more conducive to physical activity and healthy eating are in danger of losing out to cheaper and more politically palatable measures aimed at convincing obese individuals to lose weight without making it more feasible for them to do so. For example, recent legal reforms penalize obese employees and Medicaid recipients through higher out-of-pocket health-care costs, shame parents and kids by measuring and reporting students’ body mass index through the school system, and demoralize obese patients by promoting unsolicited and ineffective weight-loss counseling by physicians. These reforms are likely to further stigmatize obese people — and lead to worse health outcomes — by contributing to hostile work, school, and health-care environments. The tobacco control experience has provided a productive starting point for thinking about how to use labeling requirements, advertising restrictions, and taxes to make unhealthy food and beverage products less appealing. But tobacco control’s denormalization strategy for discouraging unhealthy behaviors and stigmatizing unhealthy people is not appropriate for preventing obesity-related health problems. In contrast, the destigmatization strategy proposed in this Article would emphasize that health, not thinness, is the proper objective of public health law. It would dictate that interventions targeting unhealthy products and environments must take precedence over interventions targeting obese individuals. And it would aim to revive interest in anti-discrimination, anti-bullying, and privacy laws as tools for preventing the health problems associated with obesity.