Vol. 24 No. 9 (September 2014) pp. 490-492
by W.A. Bogart. New York: Oxford University Press, 2013. 224pp. Hardback $74.06. ISBN: 978-0199856206.
Reviewed by Aaron J. Ley, Department of Political Science, University of Rhode Island. Email: firstname.lastname@example.org.
“The Biggest Loser,” “Shedding for the Wedding,” “Extreme Weight Loss.” These are just some of the reality TV shows demonstrating the American fixation with weight loss and the debate over what to do about obesity. Is advocating weight loss an appropriate response to the problem of obesity? It seems the answer would be a resounding, “Yes!” When I first sat down to review REGULATING OBESITY? GOVERNMENT, SOCIETY, AND QUESTIONS OF HEALTH, I was ready to review a book evaluating proposals that banned junk foods and soft drinks, and the various other proposals that have come under scrutiny from critics who believe that government has overstepped its bounds with respect to individual choice. I got a lot more than what I bargained for.
W.B. Bogart, a University Professor and Professor of Law, at University of Windsor with extensive experience consulting governments in developing policies aimed at reducing harm from risky behaviors such as gambling and smoking, demonstrates the complications of using law as a tool for shaping individual behavior. The best way of describing this book from a methodological standpoint is that it blends the sociolegal tradition with the Public Policy, Public Administration, and Comparative focus on the New Governance. The New Governance observes that government is moving beyond command-and-control regulation toward regulation that is more “reflexive” or “collaborative” in nature (see e.g., Fiorino 2006). It emphasizes using innovative tools, like subsidies and government-imposed markets, to accomplish societal goals rather than regulations that are punitive in nature. It also includes the practice of carefully measuring the attainment of goals and going back to the drawing board to devise new regulatory strategies or approaches when these strategies fall short of attaining these goals. This book should be lauded for doing what a lot of sociolegal and policy scholars do not do – bridge the gap between the fields of law and policy.
More specifically, it asks, in light of what we know about obesity from the extensive public health research that has been done about it, how do we go about tackling this critical problem if we take into consideration what we know from the experience of other countries and in light of how we think about governance? Bogart insists from the beginning that this book is not really about obesity, and I agree: it encourages readers to think about appropriately fashioning legal interventions in ways and in combinations so that they can be measured for effectiveness. The author warns readers that the title was chosen to “emphasize unrealistic beliefs about law and its role in addressing a complex array of issues concerning healthy eating and drinking and physical exercise” (p. xiii). When that is recognized, then it becomes apparent that the public health issue of obesity is an area that can be used to better understand how we approach other important public health problems.
Is the issue really about a weight problem in the United States? After reviewing a number of different perspectives, Bogart convincingly demonstrates that weight is not what we should be attacking. He points out that not everyone agrees that obesity is a problem arguing that the rates of obesity are exaggerated and that the health problems associated with obesity are misrepresented (pp. 44-47). Furthermore, a significant amount of research shows that those who [*491] lose weight have a difficult time sustaining weight loss (pp. 48-49). With that being the case, we would almost surely never succeed in attaining a societal goal of sustained weight loss and would risk hurting large-bodied people through the process if they are stigmatized due to their weight or are encouraged to lose weight by adopting unhealthy eating habits. One example is a billboard campaign in Georgia that showed a large girl with her eyes downcast with a caption reading, “It’s hard to be a little girl if you’re not” (p. 31). Though well-intentioned, such ads and policy approaches emphasizing childhood weight loss as the solution reinforce stigmatization of large people by giving the impression to others that obesity can be controlled through the exercise of self-control while eating. Ultimately, this creates an economic and normative infrastructure that reinforces unhealthy eating habits, where doctors encourage patients to surgically shrink the size of their stomachs, diet pills and fad diets are peddled to those trying to drop excess weight, and large people are exposed to a steady dose of fat shaming. After a careful review of the literature, the author concludes that shifting the emphasis from weight loss to the promotion of healthy eating habits and active lifestyles may bring about normative change where law may have a role.
Law has a role in bringing about this normative change, according to the author, but that role is complicated. There is no question that heavier people face discrimination and suffer from appearance bias on a widespread basis. The author includes an example of a Texas hospital prohibiting the hiring of well qualified prospective, but large, employees who did not have redress to challenge these exclusions through human rights legislation. If heavier people are excluded from health professions on the basis of their appearance, and not their health, then they are not afforded the opportunity to demonstrate their merit just like everyone else. According to the author, “health and weight are not to be confused [and] [h]uman rights laws are necessary to protect fat people from prejudice” (p. 94). To confuse health and weight precludes people of merit in all shapes and sizes the opportunity to demonstrate their competence in performing the same duties as those who are privileged by the current system of discrimination against heavier people. Although critics of human rights statutes worry about increased litigation, Bogart cites evidence that jurisdictions with anti-appearance bias statutes have not experienced significant levels of growth in lawsuits. The only question that remains is the extent to which those who are disadvantaged by the current system would know that they are protected under these statutes.
Besides human rights laws that protect heavy people from being discriminated against, how might government promote healthy consumption and active lifestyles? Bogart encourages readers to think about policy implementation in light of the New Governance, or the various tools that governments have at their disposal to achieve successful policy implementation. In Chapters 5-7, the author explores interventions relating to the regulation of marketing (especially the marketing of food to children and how other countries have successfully limited it), fiscal tools (e.g., taxes and subsidies), and changes to the built environment (e.g., more parks, bike paths, and the promotion of active lifestyles in schools). As a lot of policy analysts are wont to do, he cautions readers to think carefully about the unintended consequences that may arise during the process of implementing policies and also to think carefully about how we effectively combine various tools of government to achieve our goals, called the “regulatory mix.” He also encourages readers to be attentive to normativity, which includes two challenges in the context of obesity: “combating negative attitudes and actions toward fat people and promoting norms regarding healthy eating/drinking and physical exercise” (p. xvii). [*492]
Although I would hesitate to assign this book to undergraduates due to the complexity of the author’s argument, this book is appropriate for a graduate-level and scholarly audience and is timely given the growing number of Public Policy and Public Administration schools that are beginning to incorporate public health programs. One would hope that this book will also be read by health care professionals and insurance industry professionals who are concerned with long-term health care outcomes. Even though the author uses the debate over weight as the substantive focus of the book, he also uses various other public health issues, such as smoking and gambling, to illustrate and reinforce the idea that law is a complicated mechanism for influencing human behavior. My main criticism of this work is that it does not pause to consider what the debate over addressing obesity will look like under the Patient Protection and Affordable Care ACT (PPACA) passed under the Obama Administration. This is likely an artifact of the slow implementation and passage of the law, and the fact that the book, which is very well-written and organized, was concurrently in the publishing process.
Still, this lack of discussion does not detract from the main objective of the book and can be turned into an opportunity for debate and discussion in the classroom. Some of the questions raised might be, will insurance companies emphasize healthy lifestyles and eating habits over weight loss? Certainly, some insurance companies are offering incentives for the insured to attend fitness centers, which are plastered with posters that encourage healthy lifestyles and eating habits. Will insurance companies become an important player in encouraging governments and local jurisdictions to pave more walking and bike paths? Will they assume a lead role in minimizing the advertising of junk food, both online and on TV, to children? Did the New Governance anticipate the role of the insurance industry in health care administration? Not only does this book raise interesting questions about the interplay of government and private industry, but I also encourage all law and policy scholars to consider reading it because the author explores the interplay of law, policy, and society in new, creative, and innovative ways.
Fiorino, Daniel J. 2006. THE NEW ENVIRONMENTAL REGULATION. Cambridge, MA: MIT Press.
© Copyright 2014 by the author, Aaron J. Ley