Modern environments promote overeating and sedentary behaviour, and the resulting epidemic of chronic disease is a major public health challenge of the early 21st century. Governments and experts around the world are sounding the alarm about the medical, economic and social costs of escalating rates of obesity, diabetes, cardiovascular disease and cancer, and are demanding concerted action, including legislative measures, to promote healthier nutrition and physical activity. A recent report from the World Cancer Research Fund and the American Institute for Cancer Research asserts: “The increase in consumption of sugary drinks and of convenient processed and ‘fast food,’ the decline in physical activity, and the consequent rapid rise in overweight and obesity … now amounts to a global public health emergency that requires government intervention. … Specifically, government intervention needs to take the form of appropriate legal and fiscal measures designed to make healthy choices more affordable, accessible, and acceptable.” 1
Health reports from Canada and other countries are uniform in their calls for coordinated and comprehensive measures — including legal measures — to promote healthier diets and physical activity (Table 1). 2–11 Many jurisdictions in the United States regulate food and physical activity standards in schools, and 20 states require measurements of body mass index or other weight-related screening of schoolchildren. 12 Thirty states have implemented taxes on soft drinks and foods of low nutritional value, and a growing number of states and local governments require that chain restaurants post nutritional information on menus. The province of Quebec and Sweden and Norway have restricted advertising to children for many years, and the telecommunications regulator in the United Kingdom now restricts food advertising aimed at children.
Despite the recommendations in Canadian government reports and legal precedents elsewhere, governments in Canada have taken little legislative action to promote healthy eating and physical activity (Table 2). Legal measures are sparse, with little consistency across the country. Three factors might explain this reticence: concern about legislative authority, ideological opposition to government regulation and questions about the impact of legislation.
Debate about law-making authority may stall legislative initiatives. After the Parliamentary Standing Committee on Health produced its report on childhood obesity, Bloc Québécois members criticized the committee for “extending the study to areas that are outside the federal government’s jurisdiction.” 2 When a private member’s bill in Ontario proposed to regulate trans fatty acid content and disclosure of nutritional information on restaurant menus, the provincial premier responded by stating that the federal government should take the lead. 13
Potential roadblocks
Lack of authority is not a significant bar to action, however, because both federal and provincial governments have constitutional powers to enact health-related laws. 14 This shared jurisdiction allows government to act in complementary ways, but it could be a source of delay while one level of government waits for another to act. The legislative initiatives described in Table 2 could serve as models for more consistent adoption across the country. Taxation and spending powers can be used by both levels of government: they could offer tax credits for physical activity but tax food and beverages that are high in calories and low in nutritional value. Advertising can be restricted through federal authority over broadcast media and provincial authority over business regulation and consumer protection. With constitutional authority over education, the provinces can use school legislation to impose mandatory requirements for nutrition and physical activity. Provincial public health statutes also confer power to protect and promote health; notably, British Columbia’s new Public Health Act includes the power to regulate factors implicated in chronic disease. 15 Under its criminal law jurisdiction, the federal government can prohibit or regulate health hazards and impose labelling requirements or advertising restrictions that discourage the consumption of hazardous products.
Governments may be concerned about legal challenges from the food industry. The most likely claim against advertising restrictions or labelling legislation would be infringement of freedom of expression, but such laws are defensible if they target a serious health or social problem in a reasonable way. The Supreme Court of Canada upheld Quebec’s ban on advertising directed at children under age 13 16 and federal tobacco legislation, including advertising restrictions and labelling requirements, 17 as justifiable restrictions on commercial speech.
In addition to these legal concerns, ideological opposition to the so-called “nanny state” (whereby governments assume a paternalistic role) may dissuade governments from adopting potentially controversial laws. The Lalonde report, so influential in advancing a “social determinants of health model” three decades ago, squarely stated the point: “The ultimate philosophical issue … is whether, and to what extent, government can get into the business of modifying human behaviour, even if it does so to improve health.” 18 This debate persists today. A member of Ontario’s legislature expressed classic opposition to public health intervention in his criticism of the proposed law to disclose trans fatty acid content and nutritional value on menus: “I believe in legislation, generally speaking, that protects me from you and you from me. I don’t like legislation that purports to protect me from myself, and that’s what this kind of legislation is.” 19
Those who accept a government role for regulation may nonetheless question the efficacy of legal measures in influencing healthier behaviour. A member of Alberta’s Legislative Assembly criticized a proposed tax credit for physical activity in that province: “… we’re kidding ourselves if we think a small monetary reward will incent Albertans to change their lives in such a drastic way. A comprehensive approach is needed if a tax incentive is going to ultimately produce results.” 20
It is true that, as lessons in tobacco control show, a “portfolio of policies” is needed to combat chronic diseases stemming from unhealthy modern environments. 21 However, a comprehensive approach must be built piece by piece, and it would be a mistake to allow skepticism about the impact of single legislative or policy interventions to preclude any action at all. Massive shifts have occurred in the conditions in which people live, work and play, and it will be difficult to isolate and assess the role of the law in countering the unhealthy impact of these shifts. Yet, evidence about environments and behaviour can help identify defensible legislative interventions. For example, the amount of food consumed outside the home suggests that requiring information disclosure in food service establishments is a potential policy option. Evidence from areas such as behavioural economics can provide some insight on how consumers might react to higher prices for snack foods with low nutritional value or tax credits for physical activity. It is important to assess the results of specific legislative measures; researchers are already making concerted efforts to study the impact of laws on public health. 22 Early evaluations of novel approaches in the US and elsewhere can help identify strengths and weaknesses, and promising interventions can be adapted to Canada’s social and cultural context.
With ongoing assessment, legislation can be adjusted over time to ensure that the objectives of public health are promoted. The personal and social harm associated with the increasing burden of chronic disease is a matter of urgent public concern. In an area so complex and controversial, not everyone will agree on the best way forward; however, the use of legal measures to promote healthier nutrition and physical activity, especially among children, deserves more attention and action from Canadian legislators.
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Modern environments promote overeating and sedentary behaviour and have created an epidemic of chronic disease.
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Legal measures are one policy tool that can be used to promote healthier eating and more physical activity.
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In Canada, jurisdictional wrangling, the threat of legal challenges, ideological opposition and questions about effectiveness may stall adoption of novel legislation.
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Ongoing evaluation of legislative measures can provide evidence-based guidance on how to proceed.
Key points
Footnotes
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Previously published at www.cmaj.ca
This article has been peer reviewed.
Competing interests: None declared.
Contributors: Both authors contributed to the conception of and research for the article. Nola Ries prepared the first draft of this article. Barbara von Tiger-strom conducted the research and analysis for information summarized in Table 1, and Nola Ries did so for Table 2. Both authors contributed equally to the revision of the article and approved the final version submitted for publication.
Funding: The authors acknowledge funding from the Canadian Institutes of Health Research, grant MOP81162. Nola Ries also receives funding from the Alberta Cancer Prevention Legacy Fund, Alberta Health Services.