DISCUSSION CASE: Social Harms: Obesity and Opioids
Standard cases of product liability involve consumers being harmed by a product that was negligently designed, inspected, or manufactured. In such cases, a business can be held liable for damages if the consumer can show that the harm was caused by a product defect or negligence on the part of the manufacturer. Thus, in a recent example, Takata Corporation was held responsible for the death and injuries that resulted from faulty airbags that exploded during normal driving use. In this situation, a direct line could be drawn between the defective airbag and the resultant accidents and injuries.
But the question of business liability for harms is more complicated in cases in which the connection between consumer harm and the product or a business action is less direct. The examples of the obesity epidemic and opioid addiction are cases in point.
According to the Center for Disease Control (CDC), in 2017, more than 37 percent of all adults in the United States suffered from obesity. Childhood obesity rates have more than tripled since the 1970s. These percentages are the highest in the world and an all-time high for the United States. The global average for obesity is nearly 30 percent of the population, equivalent to more than 2 billion people. Just over
17 percent of U.S. youth aged 2–19, more than 12 million young people, are obese. Obesity rates within the United States have increased by more than 30 percent since 2000, despite widespread government and public initiatives to counter obesity.
Obesity is highly correlated with a variety of serious health risks, including heart disease, strokes, diabetes, high blood pressure, high cholesterol, osteoarthritis, mental illness, depression, and some forms of cancer. As obesity rates have skyrocketed, these associated diseases have increased proportionately. As a result, obesity is the most dominant underlying cause of preventable death in the United States. The CDC estimated that obesity costs the United States more than $170 billion annually in associated health care costs. These facts have led many health care advocates to identify this as an obesity epidemic.
There are many causes of obesity. Genetics, poor nutrition, especially overindulgence of high-fat and high-sugar foods, some diseases, lack of exercise, and a sedentary lifestyle all contribute to obesity. In the most general terms, the cause of obesity is that caloric intake is greater than the amount of calories burned through exercise and activity. Thus, a deeper analysis of the causes of obesity would look at both the quantity and quality of food consumed. What leads to an increase in caloric intake? Why do people consume the amount and the type of food that they do consume?
These questions have led some observers to conclude that the food and beverage industry, including the fast-food industry, plays a major role in the increasing obesity rates and the corresponding health problems associated with obesity. Critics argue that the food and beverage industry should be held responsible for their role in causing the obesity epidemic.
Nutrition experts recommend a daily calorie intact of about 2,000 calories for an average adult female, 2,500 calories for males, and 1,500 calories for adolescents and teenagers. Recommended maximum daily sugar consumption for adults is 25 grams, and 15 grams for teenagers. Recommended daily total fat consumption for an average adult female is 65 grams, of which no more than 20 grams should be saturated fats. For males, the corresponding recommendations are 80 grams of total fat, 25 for saturated fats, and for teens, 50 total grams, of which no more than 20 grams should be saturated fats.
Nutritionists often distinguish between calories that are part of a healthy diet and “empty calories” that provide no nutritional benefits. For example, sugars found in fruits and vegetables are naturally contained in a food that is providing a wide range of important nutrients. Sugar that is artificially added to processed food and drinks adds to the daily caloric intake without providing any corresponding nutritional benefits.
One study found that almost 75 percent of the food sold in supermarkets, essentially all foods other than fresh fruits, vegetables, dairy, and meat, contain added sugars. These sugars take many forms and are labelled with different names, including high-fructose corn syrup, corn sweetener, dextrose, fructose, and fruit juice. A 12 oz. soft drink, for example, can contain as much as 46 grams, equivalent to 11 teaspoons, of sugar. A single one-cup serving of a particular raisin bran cereal, despite a label advertising “all natural ingredients” and “no high-fructose corn syrup added,” contains 20 grams, or 5 teaspoons, of added sugar. Similar examples can easily be found throughout any grocery store. Students are encouraged to
conduct an Internet search, or simply read labels, on any food product they buy to learn more about added sugars in common food products.
The fast-food industry provides many other examples of high-calorie, low-nutrition foods. A typical meal at a fast-food restaurant easily reaches or exceeds all of the daily nutrition guidelines. For example, a McDonald’s meal consisting of a quarter pounder with cheese, a side order of french fries, and a medium coke contains over 1,200 calories, 55 grams of total fat, 22 grams of saturated fat, and 67 grams of sugar. A teenager who eats this meal has almost met his total daily calorie limit and surpassed the recommended limits of fat, saturated fat, and more than quadrupled his recommended daily sugar intake. Many fast-food restaurants offer choices with much worse numbers. It is easy to find comparable meals containing more than 2,000 calories at such restaurants as Sonic, Burger King, Wendy’s, Arby’s, and Chipolte. In addition, it is also common for fast-food restaurants to promote low-priced “super-sized” options, especially for high profit-margin fries and soft drinks, thereby increasing calorie, fat, and sugar content even further.
Critics fault the food and beverage industry not only for the content of the food and drinks they sell but also for how this food is marketed and promoted. Knowing that added sugars, high-fat, high-calorie, and high-salt foods contribute to obesity and other health problems, companies nevertheless aggressively promote and market them to consumers and often target their ads particularly at young consumers.
Another social problem that is identified as a health epidemic is the abuse of opioids. In 2017, the U.S. Department of Health and Human Services declared opioid use a national public health emergency. According to the National Institute of Drug Abuse, in May 2018, as many as 115 people died each day in the United States from an opium overdose. While illegal drugs such as heroin play a major role in this epidemic, prescription drugs such as fentanyl, hydrocodone, oxycodone, codeine, and morphine play a bigger role. More than half of the overdose deaths are attributed to commonly prescribed opioid medications.
Significant increases in opioid addiction can be traced to the 1990s. During this period, pharmaceutical companies heavily promoted new oxycodone and hydrocodone drugs such as Oxycontin and Vicodin, and they informed medical prescribers that these drugs were not addictive. Medical professionals prescribed these drugs for pain relief associated with a variety of medical conditions, including surgery, dental work, injuries, and some cancers. Also during the 1990s, the U.S federal government relaxed regulations and allowed direct to consumer advertising for prescription drugs.
By 2013, more than 250 million opioid prescriptions were written in the United States, equivalent to almost one prescription for every American. The highest rates of opioid prescriptions are in Alabama, Tennessee, West Virginia, Kentucky, and Oklahoma, and the lowest rates are in Hawaii, New York, California, Minnesota, and New Jersey.
The pharmaceutical industry involves three types of firms. Pharmaceutical companies design, market, and manufacture the drugs. Distribution companies act as the middle agent to transfer the drugs from the manufacturer to the pharmacies and medical offices that eventually sells them directly to consumers. Within the United States, three major distribution companies, Cardinal Health, McKesson, and AmerisourceBergen, account for more than 90 percent of the drug distribution market.