Combating Obesity with a Right to Nutrition

Abstract

Domestic and international law have, in different ways, recognized a human right to food since the twentieth century. The original reason for this recognition was the need to alleviate a particular type of food insecurity — “traditional” hunger, as manifested in conditions like malnutrition and underweight. The current public-health crisis of obesity, however, demands a reconsideration of this right. The food environment in the United States today is awash in high-calorie, low-nutrient food products that are often cheaper, on a relative basis, than more nutritious foods, leading to the overconsumption of the former by much of the American population. Merely ensuring a minimum level of food provision for the nation’s residents, therefore, no longer serves public health effectively. Rather, the right to food must be re-oriented toward a right to nutrition, focusing on the relative nutritional quality of foods and increasing access to more nutritious foods. This right should also embrace some form of protection from the marketing and selling of foods likely to cause obesity, particularly for vulnerable segments of the population like children.

This article demonstrates how a right to nutrition might be operationalized in the domestic legal system. In doing so, it uses a broader meaning of “right” than is common in American jurisprudence, which traditionally conceives of rights as constitutionally based and judicially enforced. After rejecting the possibility of a right to nutrition as a positive constitutional right, the article offers four other models by which a right to nutrition might emerge: namely, as an indirect constitutional right; as a common-law concern; through the public-utility paradigm; and as a matter of legislative grace. Borrowing from the implementation of other nonconstitutional positive rights, like the right to housing, the article shows how a right to nutrition might be viable in each of these settings, and how each of these models is highly interdependent. The article concludes with thoughts on how comparative institutional susceptibility to capture by food-industry interests may affect the ability of different governmental actors to promote nutrition.

Keywords: obesity, nutrition, food, positive rights, socioeconomic rights, state constitutions, common law, reliance interest, public utility, public nuisance, underenforcement, externalities, food deserts, food swamps, hunger