Fighting Childhood Obesity through Performance-Based Regulation of the Food Industry

That childhood obesity is an alarming public health problem is clear and widely appreciated. What is altogether unclear is what our society should do about it. Some people think the solution lies in using tort law to sue McDonald's, Coca-Cola, and other corporations. We reject that notion. Others believe that government should order specific changes in the behavior of food companies and school officials--and yet, there is little reason for confidence that these "command and control" strategies will make a difference. Instead, we propose "performance-based regulation" of the food industry. This is analogous to the approach our country is now taking with respect to elementary and secondary education (most prominently in the No Child Left Behind legislation). Schools are not told how to achieve better educational results, but better outcomes are demanded of them. This strategy has also been used in the environmental context to reduce harmful power plant emissions, and it has been briefly proposed as a way of regulating cigarette companies. In this Article, we propose that large firms selling food and drink that is high in sugar or fat will be assigned the responsibility of reducing obesity rates in a specific pool of children. A firm's share of the overall responsibility will be based on its share of the "bad" food market, and the children assigned to it will be organized by geographically proximate schools where obesity rates are currently above the plan's nationwide target rate of 8 percent (the actual childhood obesity rate today is approximately 16 percent). Firms that fail to achieve their goals will be subject to serious financial penalties.