An analysis and proposed solution to the health care crisis brought on by the American obesity epidemic.
I: The United States’ BIG Problem
As though a perverted manifestation of the maternal warning against making an “ugly face” (“or it will be stuck like that for the rest of your life”) has actually rung true, the playground taunt of “fatty, fatty, two-by-four” is no longer a simple and vindictive pre-adolescent utterance but a fact. Much like a face stricken with a permanently contorted expression, our nation has been punished with a nationwide obesity epidemic. Throughout this article, the term epidemic is used to mean a rapid and extensive growth and not the outbreak of disease. Short of pathogen-laden Twinkies or Little Debbie being diagnosed with tuberculosis, obesity is not a disease. The United States has devoted greater attention to the obesity issue in the past year, but the country has yet to reach a solution to its pudgy predicament.
Classifying obesity’s growth (pun intended) as “rapid and extensive” might qualify as an understatement. In 1960, the amount of obese Americans between the ages of 20 and 74 was 13.3%. . This percentage jumped to 31.1% during 1999-2000. . The percentage of children ages 6-11 classified as “overweight” in 1960 was 4%. . In 1999-2000, the figure was 15.8%. .
Identifying the specific reasons for this increase falls far outside the scope of this article. . The primary concern of this author is not one of causation, but one of consequence. The obesity epidemic triggered a significant increase in the cost of health-care in the United States. As obesity is largely a product of personal choice and is for the most part preventable, such a consequence is entirely unacceptable. This article proposes advancing an implicit “tax” in the form of increased insurance premiums on those who exceed acceptable levels of body fat percentage given their age and gender. As this article will note, individuals classified as obese have far greater risks for heart disease, diabetes, and other morbidities. Treating such high-risk individuals has adverse consequences for the health-conscious citizens resulting from increased insurance premiums or escalated taxes paid to Medicaid/Medicare. By redirecting the increased cost to those responsible, one arrives at a solution that provides incentives for leading a healthy lifestyle while not unfairly burdening the segments of the population that elect to make health-conscious choices.
This article also argues that taxing overweight individuals, as opposed to taxing unhealthy food, is the more effective fiscal incentive to combat obesity.
II: Super Size My Premiums Please!
The mere conceptualization of a fat-tax as a method to force people to lead healthier lifestyles may appear as yet another implicit surrender in the battle of common sense as an American virtue. Society has previously raised this white flag in the passing of legislation that increases taxes on cigarettes, bans smoking in public areas, and forces motorcycle riders to don a helmet. . It seems for most of this country’s citizens, the fact that something may kill you is hardly an incentive to stop a given behavior. As a Social Darwinist, this author traditionally supports such bull-headed displays of freedom, as the gene-pool is likely better off without such people treading water.
The line is often drawn, however, when a person’s freedom of choice results in consequences that are adverse not just to the person, but to third parties as well. It is in this harm to third parties that lies the rub in the obesity issue. Obesity is not simply a matter of personal choice, but a choice that carries significant fiscal consequences. “Treating obesity-related illnesses and complications adds billions of dollars to the nation's health care costs.” . The Surgeon General also notes that that obesity will soon rank on par with cigarette smoking in terms of the creation of preventable disease. . The detriment obesity related issues pose to the average-sized American is most poignantly reflected in that 27% of the increase in health-care costs seen from 1985-2001 are directly attributable to treatment of the obese. . It seems now that our nation of Burger Kings and Queens has led to the super-sizing of much more than value meals.
III: The Solution…short of just putting the Krispy Kreme down.
A solution to the obesity epidemic is not as simple as one might think. In defiance of Occam’s Razor, the simplest solution of personal responsibility is clearly not the solution. While a rather conclusory statement, the mere fact that there IS an obesity epidemic reflects its validity. While smokers who claim they are unaware of the health risk of cigarettes cannot see the tumors growing in their lungs, the obese have no such argument. Irresponsible eating habits and a sedentary lifestyle have the very visible positive correlation with “symptoms” such as sweating while watching television and the inability to observe one’s toes. Anyone willing to cautiously experiment with fruit and a treadmill would quickly appreciate that their “condition” is the direct result of specific lifestyle choices.
Thus, despite this author’s strong libertarian leanings, some form of government-based action seems necessary.
Education holds great promise in the longer-term battle against obesity. The Department of Health and Human Services has launched the National Heart, Lung, and Blood Institute Obesity Education Initiative (O.E.I. hereinafter). . The primary goal of the O.E.I. is “encourage the adoption of heart healthy eating patterns and physical activity habits that will not only help prevent or reduce the prevalence of overweight and obesity and their related coronary heart disease risk factors along with sleep apnea, but also help reduce morbidity and mortality from coronary heart disease.” .
While education has been proven to be effective in deterring other self-destructive behaviors (e.g. smoking), the results of such efforts will not be felt for years. One is still forced to contend with the current generation of obese Americans who continue to drive up health-care costs.
It is this author’s opinion that economic incentives are the most practical method of forcing a national slim-down. While avoiding a hilarious “carrot or the stick” pun, it seems that the surest way to get Americans to react to a problem is to force them to pay for it. From the Boston Tea Party to “Read my lips: No New Taxes,” it seems no good citizen wants pay extra for something without a fight. Such an approach has gained significant attention and success in combating cigarette smoking. .
IV: The Shortcomings of the "Kaiser Soze" Tax
Several theories exist on how to exact a tax the obese as both an incentive for a healthier lifestyle and as a method to lower premiums on those with lower-risk lifestyles.
The most popular proposal is that of a fatty-food tax. This approach is a carbon copy of the theory behind curbing cigarette addictions by making the cigarettes themselves prohibitively expensive. At its most basic form, this form of tax would add cost on food defined as “unhealthy.” . The usual culinary suspects would be rounded up and would cost the consumer more, thus providing a disincentive to purchase the item. .
Such an approach is likely the most popular as it is the least politically volatile, not because it is stands as the most effective. No politician worth his or her salt would risk alienating votes by calling attention on their more rotund constituents.
The fatty-food tax is inherently flawed because it is not the food itself that makes an individual fat, but the quantity consumed. While there is the natural association that some foods are more likely to contribute to weight gain, there is not causal relationship between the two. Weight gain and loss is governed by the end of result of the calories consumed minus calories expended equation. If one consumes more than one expends, the excess is converted into, among other things, stored body fat. If one expends more than is consumed, the body makes up for the caloric deficit by burning existing fat stores. One could subsist entirely on traditionally “fatty-foods” and still lose weight given a high enough daily caloric expenditure.
Further, this author finds the fatty-foods tax objectionable on political grounds. A staunch advocate of John Stuart Mill’s harm principle, , there is no need to govern the specific food an individual consumes. Until that intake results in an infraction of one’s personal freedoms, namely, to pay a reasonable insurance premium, someone’s meals should remain their business.
A second approach is one of government mandated taxes based on one’s body mass index (B.M.I) or body fat percentage. As noted by Dean Levmore of the University of Chicago Law School, enforcement of such a tax would be nothing short of a civil liberties and logistical nightmare. .
V: Some Food for Thought
The most effective method lies in using an economic incentive theory, like a tax, incorporated into an already existing infrastructure for enforcement. The solution? Standard incorporation of an implicit tax upon the obese through higher insurance premiums. Much like other risk-based behavior that has probability to result in greater harm to the person, obesity is clear in contributing to significant health risks. . Insurance companies, by requiring the obese to pay significantly higher premiums, will merely level the playing field in terms rewarding those that abstain from high-risk behavior. Such a fiduciary incentive also serves to remove the moral hazard element of the obese. If an obese individual is fully covered under health insurance, there is no real consequence for the choice to engage in a high-risk behavior. . As Stanford Law Professor Jeff Strnad notes: “Ex ante moral hazard would be reduced on individuals because individuals who chose unhealthful eating habits would have to cover the expected cost of such behavior in advance.” .
The matter of enforcement is far less complicated under this system, as insurance companies regularly require physicals of policyholders. The enforcement scheme also raises an issue this author, proudly holding a minor in exercise science, feels has been grossly overlooked. Throughout the existing legal and lay person literature on a fat tax, the suggested method of determining whether an individual is obese is through the Body Mass Index (B.M.I.). An individual’s B.M.I. is determined by dividing an individual’s bodyweight by the square of their height. . The B.M.I. has been the subject of much criticism from the sports science community but has somehow still prevailed. . In this author’s opinion, B.M.I.’s continued prevalence is based the fact its harder for patients to argue with a number than a physician informing them they are overweight (“You have a 30 B.M.I.” “I’m just big boned.”).
The inherent flaw of Body Mass Index measurements is that it fails to factor in the weight of muscle mass. Thus, one who is incredibly lean but highly muscular (any given fitness model or professional athlete), would likely be “overweight” per the B.M.I. in light of the height and weight calculation. . The far more precise measure is one of body fat percentage, which measures the proportion of adipose tissue (body fat for the non pre-med majors) in regard to overall body mass. As the suggested approach would take such measurements during insurance physicals, the logistical drawbacks to using body fat percentage over B.M.I. (body fat determinations require a physical consultation, B.M.I. determinations do not) are rendered nearly moot.
Admittedly, the most glaring shortcoming of insurance-based incentives as a weapon to combat obesity is the startling amount of United States citizens who are not insured. As the uninsured cannot directly affect insurance premiums, one can argue that they are a non-factor in such analysis. Such an argument is shortsighted however, as the uninsured obese in this country will undoubtedly need medical attention and such costs are either passed on to the emergency rooms they enter (treating even the uninsured is a mandate passed on to all hospitals through the Emergency Treatment and Active Labor Act ) or the taxpayer through Medicare/Medicaid. To this conundrum, this article offers no solution. Implementing a reward/punishment mechanism on the poverty stricken is not only a public policy quagmire, but simply beyond the bounds of human decency, even for this author. This issue is particularly thorny in that it is the poor that are the least likely to be able to afford nutritional food or be able to choose time to exercise and therefore at higher risk for obesity.
VI: Death, Taxes, and Chicken Nuggets.
Ben Franklin noted that the only two certainties in life are death and taxes. Implementation of a fat tax appears an peculiar conflation of these two certainties; using the latter to prevent the former. The public health crisis of obesity in this nation is truly a matter that can no longer be ignored. Obesity has grown, much like stomach flab over a waistline, from being a health concern of the few to a fiscal concern of the many. Much like smoking-based ailments, obesity matters are particularly complicated as they appear highly preventable and the result of personal choice. If the main weapon to be used to combat this epidemic should be financial remuneration, public health initiatives, or something else entirely, remains patently unclear. Perhaps the American public should just be left to their own corpulent devices and be allowed to Rascal-Scooter themselves into an early, and quite large, grave.
 Jeff Strnad, Conceptualizing the “Fat Tax”: The Role of Food Taxes in Developed Economics, 78 S. CAL. L. REV. 1221, 1222 (2005).
 See generally, Richard Epstein, Obesity Policy Choices: What (Not) To Do About Obesity, 93 Geo. L.J. 1363.
 Saul Levmore, Taxing Obesity – Or Perhaps the Opposite, 53 Cle. St. L. Rev. 575, 576 (2005/2006).
 Department of Health and Human Services, HHS Announces Revised Medicare Obesity Coverage Policy, July 15, 2004, available at: http://www.hhs.gov/news/press/2004pres/20040715.html.
 OFFICE OF THE SURGEON GENERAL, U.S. DEP'T OF HEALTH AND HUMAN SERVS., THE SURGEON GENERAL'S CALL TO ACTION TO PREVENT AND DECREASE OVERWEIGHT AND OBESITY, at XIII (2001).
 Ceci Connolly, Obesity Gets Part of Blame for Care Costs, WASHINGTON POST Oct 20, 2004, available at: http://www.washingtonpost.com/wp-dyn/articles/A46123-2004Oct19.html
 Department of Health and Human Services, National Heart, Lung, and Blood Institute Obesity Education Initiative, available at: http://www.nhlbi.nih.gov/about/oei/oei_pd.htm
 See Levmore, supra note 6, at 577.
 See Strnad, supra note 1, at 1224-1227.
 JOHN STUART MILL, ON LIBERTY (New Ed ed., Penguin Books 1982)(1859)
 Levmore, supra note 6, at 580.
 Strnad, supra note 1, at 1222.
 Id., at 2005.
 See ASKER JEUKENDRUP & MICHAEL GLEESON, SPORTS NUTRITION: AN INTRODUCTION TO ENERGY PRODUCTION AND PERFORMANCE (Human Kinetics 2004).
 42 CFR 489.24 (as amended 2000, 2003).