Private enforcement: litigation as a tool to prevent obesity

Private enforcement, or litigation, has played a historic role in protecting public health in the United States. Litigation is often employed as a means to protect public health when government regulation is absent or ineffectual. Litigation has been successfully employed to control both asbestos and tobacco and is poised for success in combating the obesity epidemic. Litigation is effective because it makes public industry practices and increases industry self-policing. Litigation related to obesity would likely employ theories of "unfair and deceptive trade practice" or general "personal injury" or tort claims. While opponents to the use of litigation often cite personal responsibility and the individual as the true locus of liability, these arguments fail to take into account the context of an individual's choice. While litigation can be effective, media attention and current political discourse on "tort reform" has engendered a set of legislative actions that would foreclose litigation as a public health strategy.