Crossroad between the right to health and the right to be fat

ABSTRACT

The right to health has been little more than a patchwork of international treaties and covenants with mostly symbolic value. More recently though, attempts to define the right to health have become more concrete and related to specific topics such as the prevention of over- and malnutrition as well as fatness. The right to health in this context is meant to create an environment that makes it less likely to consume foods considered to be unhealthy and fattening. The measures applied here are mostly restrictive. In this paper, two main lines of critique are presented with regard to the right to health in the context of nutrition and fatness – a libertarian and a social justice argument. Based on this reasoning, the right to health as articulated in this context is criticized as incompatible with the right to be fat. On the other hand, it will be argued that the philosophical base of the right to health as elaborated by the UN and the WHO does indeed have a strong potential to strengthen the right to be fat. But in order to fulfill this potential it is of paramount importance to respect the diversity of human bodies and lifestyles as well as to take the discrimination of fat people seriously.

KEYWORDS:

• Fat hatred
• social justice
• discrimination
• nutrition
• sin tax
• lifestyle
• body diversity. Public health

Introduction

In the late 1990s, fatness was officially declared an epidemic by the World Health Organization (WHO) and other public health organizations and subsequently enormous resources were mobilized to combat the perceived health threat (World Health Organization 2000). More than two decades later, however, public health officials still deplore little progress. Although the scenario of ever-growing waistlines hasn’t materialized, at least not in Western countries, there has been no significant reduction in the number of fat people either. And after years of intensive debates on the perils of endemic high body weight the public interest in the issue seems to have calmed down somewhat.

On the other hand, there is increasing attention on the role of nutrition as a major cause of premature deaths. Dietary risks are now described as the number one contributor to avoidable causes of death, even though the risk of premature mortality resulting from nutrition has actually decreased significantly since the 1990s when controlled for age and population growth (GBD Obesity Collaborators 2017). Furthermore, it has been shown time and again that weight does not in fact equate health (Calogero et al. 2019; Flegal 2005; Flegal et al. 2013).

Despite all that, in the public perception and in those of many public health advocates over nutrition and fatness have ousted tobacco consumption as the number one health risk in middle- and high-income countries and increasingly in low-income countries as well. This new focus on food as a public health threat combined with the renewed warnings by public health officials not to underestimate the perils of high body weight have led to a dramatic increase in political measures designed to influence people’s diet as well as the size of their bodies (World Health Organization 2015). Due to their asserted severity, the prevention of and the combat against overnutrition and fatness are increasingly presented as part of a right to health (World Health Organization 2017).

Subsequently, I will present the concept of the right to health and the ways it is interpreted in targeting fatness and supposed malnutrition. I will then present two major strains of critique toward these measures. In conclusion, I will suggest an alternative interpretation of the right to health that is consistent with the right to be fat.

The right to health and healthy nutrition

The right to health is defined as a social, cultural, and economic right to a universal standard of health that includes universal access to healthcare and to healthy living conditions. The right to health forms part of several international treaties that were signed and ratified by an overwhelming majority of UN member states. These treaties include but are not limited to the United Nations Human Rights (UNHR) 1948, the United Nations Children’s Right Convention (UNCRC) 1990 (not signed by the USA) as well as the International Covenant on Economic, Social and Cultural Rights (ICESR) 1966 (signed, but not ratified by the USA). Another important pillar of the right to health is the concept of Universal Health Coverage that forms part of the United Nations Millennium Development Goals. The principal of Universal Health Coverage is based on the ideal of equity in access to health services as well as the guarantee of quality and affordability of health services (United Nations Department of Public Information 2009; World Health Organization 2004).

The right to health as enshrined in the above-mentioned treaties and conventions was summarized in a fact sheet by the United Nations Commissioner of Human Rights and the World Health Organization in 2008. In this fact sheet the right to health is further explained as an inclusive right that guarantees – among other things – safe drinking water and adequate sanitation, safe food, adequate nutrition and housing, healthy working and environmental conditions, health-related education and information as well as gender equality. It also guarantees freedom from cruel, inhumane or degrading treatment or punishment, and it provides the right to a system of health protections that includes the right to prevention, treatment and control of diseases, access to essential medicines, equal and timely access to basic health services, access to maternal, child and reproductive health, the provision of health-related education and information as well as the participation of the population in health-related decision making. It also states that health services, goods, and facilities must be provided without any discrimination and it guarantees the standard of availability, accessibility, acceptability, and quality of health care products and services for anyone at any given time.

In the above-mentioned fact sheet it is also noted that the right to health is not to be confused with the right to be healthy, since many determinants of health, such as genetics or lifestyle choices, are considered to be rightfully outside the control of the government (Office of the United Nations High Commissioner for Human Rights and World Health Organization 2008).

Although many of the principles of a universal right to health are included in a variety of international agreements and conventions there are relatively few proposals for actual laws that could guarantee the right to health in a given legal system. In order to fill this gap, the World Health Organization (2017) drafted a report on how to reify the right to health in a way that it will have actual meaning in the legal code of countries and thus have real-life consequences for their citizens. This report does not only give general ideas about how public health regulations can be achieved through law reforms, it also looks at ten priorities for public health reform specifically. One of them is dealing with nutrition as well as “overweight and obesity.”

Many of the measures that the report proposes with regard to nutrition are already written into law in a growing number of countries. This is especially true for laws concerned with compulsory food labeling as well as for laws demanding food and beverage-related taxes.

Counterarguments against public health laws targeting nutrition and body fat

Although taxes on fat and sugary foods in general and taxes on sugar-sweetened beverages in particular are becoming increasingly popular, the current state of research is inconclusive. There is no consensus on whether sugar-sweetened beverages and weight gain in children and adults are intrinsically linked (Luger et al. 2017). And while studies that investigate the effect of taxes on sugar sweetened beverages in Mexico show a significant decrease in the consumption of these products, they did not show any effect on body weight, therefore complicating the argument of these taxes as being a successful measure against the “obesity-epidemic” (von Philipsborn et al. 2017).

Results are equally inconclusive with regard to the consequences of food labeling in general (Cecchini and Warin 2016; Miller and Cassady 2015) and menu labeling in chain restaurants in particular (Bleich et al. 2017; Cantor et al. 2015). But apart from the question of effectiveness, there is a more general critique concerned with questions of individual freedom, social justice, and human rights. I will describe two different strains of critique toward measures designed to influence people’s diet and their body size.

Libertarian argument

The most visible argument against national measures to rein in the eating behaviors and body sizes of their respective citizens derives from a libertarian standpoint. It stresses that food-related health problems should be seen as the sole responsibility of the consumer, as Niko Malek, fellow of the Foundation of Economic Education FEE, one of the oldest neoliberal think tanks in the USA, points out: „The ridiculous claim that corporations are responsible for people’s health problems is nothing new. […]. People who are dying because of smoking-related illnesses have nobody to blame but themselves. And it’s the same for people who eat poorly.“ (Malek 2003) Christopher Snowdon, fellow at the Institute for Economic Affairs IEA, a well established neoliberal think tank in the UK, argues accordingly: „The simple truth is that obesity is, has been, and always will be caused by an excess of calories from any source – frequently also to physical inactivity and various shades of gluttony.“ (Snowdon 2015a) Following this line of reasoning, any form of governmental intervention deserves critical recognition from this point of view, although measures that inform rather than coerce generally get more leeway than “sin taxes” or outright prohibition of certain foods (Snowdon 2015b). Unsurprisingly, there is a significant overlap with arguments articulated by libertarians and the food industry. But there are also important differences. Rather than trying to make a philosophical argument about personal freedom and liberty, the food industry is framing the issue in terms of nutritional science. The main argument of the food lobby goes like this: there is no such a thing as unhealthy foods, but rather unhealthy lifestyles that may include unhealthy diets. So first of all, the consumption of any given food can be balanced by physical activity, and secondly any given food when consumed in moderate amounts can be part of a healthy diet. Following this rhetorical playbook, the food industry is enacting damage control toward the ever-growing menace of more drastic measures directed at them that are often modeled by established measures against the tobacco industry (Watts et al. 2014). Surprisingly, there is also some overlap between the libertarian argument in favor of governmental restraint, the interests of the food industry, and parts of the food justice movement: for instance regarding the question whether sugar-sweetened beverages should be provided in exchange for food stamps (Hartocollis 2010).

Social justice argument

Public health professionals perceive the fact that people with little financial means are affected more intensely by these so-called sin taxes as beneficiary, because these are the same people who are considered to be the prime consumers of foods and beverages deemed to be unhealthy. Furthermore, fat people are often lower-income (Ernsberger 2009).

The subject is presented as a win-win situation where those who are affected most by additional taxes are also the ones to gain the most (Sassi et al. 2018). In this context, there is little to no recognition of the overwhelming body of evidence that poor living and working conditions, lack of financial stability, high responsibility combined with lack of autonomy and acknowledgment in the workplace and beyond do indeed contribute most to health inequalities, whereas food habits and other consumer choices are seen as a result rather than a cause of poverty (Bambra 2011; Schrecker and Bambra 2015; Wilkinson and Pickett 2010).

Several unintended consequences of higher food taxes are described in the literature. First, people might still consume taxed foods and beverages but switch to lower-quality products in order to compensate for higher prices, or consumers might even cut back on healthy foods to be able to afford their favorite foods (Cornelsen et al. 2014). In this case, sin taxes on certain foods would have the adverse effect by further limiting choice and thereby increasing the reliance of poor people on unhealthy and taxed but still comparably cheap food. This scenario has – at least in part – proven to be the case in Denmark, where a fat tax introduced in 2011 and abolished just 15 months later did little to change consumption patterns, but provoked higher cost for low income consumers who as a result were increasingly looking for cheaper alternatives (Jensen and Smed 2013).

Another more philosophical argument against these interventions is that no matter their effect on the consumption of certain foods, they are paternalizing low-income people, making it harder if not outright impossible (as in the case of the distribution of food stamps) for them to consume certain foods or beverages, thus restraining their individual freedom severely whereas people of higher financial means essentially get a pass. It may well be argued then that one of the pillars of the right to health with regard to nutrition, mainly the right to be “free from hunger and to have an adequate supply of safe and nutritious food” (World Health Organization 2017, 252), could be further imperiled if a growing number of foods are subject to “non-trivial taxes” as recommended by the WHO and the UN.

The right to health and the right to be fat

With that in mind it is worthwhile to take a look at the WHO report “Advancing the right to health and the vital role of law” (2017) more specifically. The report is not only concerned about how to advance the right to health through law reform, it is also setting priorities for concrete public health measures. It identifies ten areas starting with “clean water, sanitation and vector abatement” and ending with “maternal, reproductive and child health”. By far the most extensive of these ten priorities is dedicated to legal responses to “poor nutrition, undernutrition, overweight and obesity” (World Health Organization 2017, 251–280).

The section of the report that is dedicated to food-related health problems starts with a reference to the human right to be free from hunger and to have an adequate supply of safe and nutritious food as recognized in the International Covenant on Economic, Social and Cultural Rights (World Health Organization 2017, 252). Nevertheless, the section is rather short on the issue of under- and poor nutrition. The report seems to dismiss the issue of undernutrition as mostly a relic of the past, ignoring the statistics that show that the number of under- and malnourished people worldwide did not see significant reduction since the millennium and did in fact grow again in recent years (Food and Agriculture Organization of the United Nations 2018). Rather, the report claims that the nutritional risks of undernutrition even in many low and middle-income countries are overshadowed by the perils of a Western diet that is actively contributing to the rapid rise of diabetes and other noncommunicable diseases as well as fatness. The report proposes a variety of measures like abolishing subsidies for foods that are deemed to be unhealthy, banning advertisement and promotional techniques to manipulate and shape children’s food preferences, banning the vending of certain foods and beverages close to schools and playgrounds, establishing universal food labeling, imposing non-trivial taxes on sugar-sweetened beverages and on foods that are high in salt, saturated fat, and/or added sugar, introducing general sales bans for certain foods, establishing mandatory food standards as well as mandatory standards to improve micronutrients in foods, creating zoning and planning controls as well as incentives for the establishment of stores and stalls selling healthy and fresh food (World Health Organization 2017, 251f.).

The right to health combines both, freedoms and entitlements (cf. Ooms and Hammonds 2018). Freedoms refer to noninterference in a person’s private life, whereas entitlements refer to active support. There seems to be a lot of “active support” in the proposed measures to combat fatness and malnutrition, although mostly in the form of restrictions and taxations of certain foods and much less in the form of broadening the access to foods considered to be healthy. What’s missing in the report though is the mentioning of freedoms in the form of a right to noninterference in personal food choices and body diversity. The justification for these mostly interventionist measures revolve around the provision in the right to health that guarantees healthy living conditions but it clashes with the concept of respecting genetic diversity as well as individual lifestyles, even if they might not be consistent with societal health goals. What’s more, there is indeed a fundamental difference between the latter proposed measures that provide and enable choice like incentives for stores to sell healthy and fresh food in order to deal with “food deserts” in economically depressed areas and restrictions like the proposed exclusion of sugar sweetened beverages in food stamps or “non-trivial taxes” on certain foods that actively hinder and prevent choice (cf. Griffiths and West 2015). Such a distinction is not to be found in the WHO Report where every type of action seems to equally benefit the goal of providing healthy living conditions.

The right to health and the freedom from discrimination

Even more problematic is another aspect of the report: the complete lack of awareness or even any mentioning of weight discrimination and its effect on human health. Theoretically, the right to health as presented in the common report by the Office of the United Nations High Commissioner for Human Rights and the World Health Organization (2008) extensively covers the relation between discrimination and negative health outcomes. Discrimination is defined here as “any form of distinction, exclusion or restriction made on the basis of various grounds which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise of human rights and fundamental freedoms. It is linked to the marginalization of specific population groups and it is generally at the root of fundamental structural inequalities in society. This, in turn may make these groups more vulnerable to poverty and ill health.” (Office of the United Nations High Commissioner for Human Rights and World Health Organization 2008, 7)

Weight discrimination clearly has the effect of impairing „the enjoyment or exercise of human rights and fundamental freedoms.“ Furthermore, it is actively marginalizing fat people and thus contributing to structural inequalities in society. There is ample evidence that weight discrimination contributes to poverty, social downward mobility and ill health of fat people through a variety of mechanisms (Ernsberger 2009). Fat hatred leads to fewer economic and career opportunities as well as lower wages (Brunello and D’Hombres 2007; Greve 2008), it negatively affects relationships within families and between intimate partners (Fikkan and Rothblum 2012), it can lead to eating disorders, body image disturbance and other psychological disorders as well as a variety of medical indications such as high cortisol, high cholesterol and overall higher mortality (Almeida, Savoy et al. 2011; Hayward, Vartanian, and Pinkus 2018; Madowitz et al. 2012; Magallares 2012, Pearl, White, and Grilo 2014, Schvey, Puhl, and Brownell 2014, Sutin, Stephan, and Terracciano 2015).

Within healthcare, fat hatred leads to less utilization of health services by fat people and a lower quality of the provided health services for fat people (Drury and Louis 2002). An ever-growing body of literature clearly shows that there is indeed a direct connection between weight-based discrimination, quality of healthcare, availability of healthcare, accessibility and acceptability of healthcare for fat people (Mensinger, Calogero, and Tylka 2016; Teixeira and Budd 2010). The problem seems to be twofold as the quality of healthcare is diminished by lack of sympathy toward and knowledge of special needs of fat people as well as by lack of proper medical equipment to deal with fat people’s special needs. Taken together, fat hatred and ignorance actively contribute to the lower overall health status of fat people. Adding to the problem is the fact that repeated attempts to lose weight are not only notoriously ineffective (Gaesser 2009), but also lead to more health problems than a high but stable body weight (Calogero et al. 2019).

Conclusion

Outside of fat studies there is little to no recognition of fat discrimination as an obstacle to the fulfillment of the right to health (Calogero et al. 2019; O’Hara and Gregg 2012; Tirosh 2012). Rather than genuine concern for the negative consequences of weight discrimination there seems to be a renewed fear of a “normalization” of fat bodies among public health professionals. Although there aren’t any indications that weight discrimination has diminished – recent studies show just the opposite (Puhl and Liu 2015) – there is a growing concern among some public health professionals that people individually as well as society as a whole could come to terms with their body weight not least because of the work of the fat acceptance movement „which promotes social acceptance of a wide range of body sizes, including extreme obesity” (Burke and Heiland 2018, 221).

Although these authors clearly fear the trend of diminishing weight stigma, they nevertheless do not advocate fat shaming directly. Instead they call for a strategy that “seek[s] to harness peer effects in a positive way to promote and spread healthy behaviors“ (Burke and Heiland 2018, 222). But the support for positive peer effect does not seem to suffice in order to achieve general weight loss in the populace. This is shown by the fact that the same special issue of the Journal of the American Medical Association that covered the above-cited piece on the “appropriate response on evolving societal norms of obesity” contained several contributions on the advantages of bariatric surgery (Livingston 2018).

This, in return, underlines the fact that from a public health perspective the idea that fat bodies are here to stay rather than being a temporary medical state is still being rejected, despite all the recent attention on weight discrimination by a number of medical organizations (Rubino et al. 2020).

In this context, the social model of disability could help make the case for an inclusive right to health that covers the right to be fat as part of personhood. In 2018 the Secretary-General of the UN issued a report on the rights of persons with disabilities that examined the challenges experienced by persons with disabilities in the enjoyment of their right to health. In this report it was clarified that „having an impairment does not equate to being unhealthy“ (United Nations General Assembly 2018, 4). The report goes on to „acknowledge that the notion of impairment varies throughout history, cultures and societies, reflecting the values and norms of a specific time and place. Similarly, many persons with disabilities do not see their bodily and functional diversity as actual impairments, but as positive and normal traits of their identity or as perceived impairments. […]. Consequently, disability is nowadays understood as a social construct resulting from the interaction between persons with actual or perceived impairments and attitudinal and environmental barriers. Departing from the practice of pity and treatment, persons with disabilities should now be recognized as equal members of a diverse humanity.“ (United Nations General Assembly 2018, 4)

Following this approach, the right to be fat in order to be consistent with the right to health as proposed by the WHO must not advocate for universal weight loss and it must not punish behavior that is said to – accurately or not – cause weight gain. What it must do instead is to provide for a holistic approach to health that recognizes fat people as „equal members of a diverse humanity.“ Such an approach to health for all should not only include the protection of discrimination for everyone, it should also support the promotion of social participation and social equality. Because after all: what undoubtedly endangers health more than anything else is social inequality and marginalization.

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Correction Statement

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Notes on contributors

Friedrich Schorb

Friedrich Schorb, Ph.D., is a research associate at the Institute of Public Health and Care Research at the University of Bremen, Germany. His research interests include health inequalities, sociology of health, the social construction of weight categories, and weight discrimination. He is the spokesperson of the scientific network by the German Research Fund: “Fat Studies: Doing, Becoming and Being Fat”.