II 

111TH CONGRESS 

1ST SESSION S. 1060 

To comprehensively prevent, treat, and decrease overweight and obesity in 

our Nation’s populations. 

IN THE SENATE OF THE UNITED STATES 

MAY 18, 2009 

Mr. BINGAMAN introduced the following bill; which was read twice and 

referred to the Committee on Health, Education, Labor, and Pensions 

A BILL 

To comprehensively prevent, treat, and decrease overweight 

and obesity in our Nation’s populations. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Obesity Prevention, 

5 Treatment, and Research Act of 2009’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds the following: 

8 (1) In 2001, the United States Surgeon Gen9 eral released the Call to Action to Prevent and DeVerDate Nov 24 2008 23:45 May 18, 2009 Jkt 079200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1060.IS S1060

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1 crease Overweight and Obesity to bring attention to 

2 the public health problems related to obesity. 

3 (2) Since the Surgeon General’s call to action, 

4 the problems of obesity and overweight have become 

5 epidemic, occurring in all ages, ethnicities and races, 

6 and individuals in every State. 

7 (3) The United States now has the highest 

8 prevalence of obesity among the developed nations, 

9 according to 2006 data by the Organisation for Eco10 nomic Co-operation and Development. The preva11 lence of obesity in the United States (34 percent) is 

12 more than twice the average for other developed na13 tions (13 percent). The closest nation in prevalence 

14 of obesity is the United Kingdom (24 percent) which 

15 is over 25 percent less than the United States. 

16 (4) The National Health and Nutrition Exam17 ination Survey in 2006 estimated that 32 percent of 

18 children and adolescents aged 2 to 19 and an alarm19 ing 66 percent of adults are overweight or obese. 

20 (5) More than 30 percent of young people in 

21 grades 9 through 12 do not regularly engage in vig22 orous intensity physical activity, while almost 40 

23 percent of adults are sedentary and 70 percent re24 port getting less than 20 minutes of regular physical 

25 activity per day. 


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1 (6) The Institute of Medicine, in their 2005 

2 publication ‘‘Preventing Childhood Obesity: Health 

3 in the Balance’’, reported that over the last 3 dec4 ades, the rate of childhood obesity has tripled for 

5 children aged 6 to 11 years, and doubled for chil6 dren aged 2 to 5 years old and in adolescents aged 

7 12 to 19 years old. In 2004, approximately 

8 9,000,000 children over 6 years of age were obese. 

9 Only 2 percent of children eat a healthy diet con10 sistent with Federal nutrition guidelines. 

11 (7) For children born in 2000, it is estimated 

12 the lifetime risk of being diagnosed with type 2 dia13 betes is 40 percent for females and 30 percent for 

14 males. 

15 (8) Overweight and obesity disproportionately 

16 affect minority populations and women. According to 

17 the 2006 Behavioral Risk Factor Surveillance Sys18 tem of the Centers for the Disease Control and Pre19 vention, 61 percent of adults in the United States 

20 are overweight or obese. 

21 (9) The Centers for the Disease Control and 

22 Prevention estimates the annual expenditures related 

23 to overweight and obesity in the United States to be 

24 $117,000,000,000 in 2001 and rising rapidly. 


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1 (10) The Centers for the Disease Control and 

2 Prevention estimates that the increase in the num3 ber of overweight and obese Americans between 

4 1987 and 2001 resulted in a 27 percent increase in 

5 per capita health costs, and that as many as 

6 112,000 deaths per year are associated with obesity. 

7 (11) Being overweight or obese increases the 

8 risk of chronic diseases including diabetes, heart dis9 ease, stroke, certain cancers, arthritis, and other 

10 health problems. 

11 (12) According to the National Institute of Dia12 betes and Digestive and Kidney Diseases, individuals 

13 who are obese have a 50 to 100 percent increased 

14 risk of premature death. 

15 (13) Healthy People 2010 goals identify over16 weight and obesity as 1 of the Nation’s leading 

17 health problems and include objectives for increasing 

18 the proportion of adults who are at a healthy weight, 

19 reducing the proportion of adults who are obese, and 

20 reducing the proportion of children and adolescents 

21 who are overweight or obese. 

22 (14) Another Healthy People 2010 goal is to 

23 eliminate health disparities among different seg24 ments of the population. Obesity is a health problem 


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1 that disproportionally impacts medically underserved 

2 populations. 

3 (15) Food and beverage advertisers are esti4 mated to spend $10,000,000 to $12,000,000,000 per 

5 year to target children and youth. 

6 (16) The United States spends less than 2 per7 cent of its annual health expenditures on prevention. 

8 (17) Employer health promotion investments 

9 net a return of $3 for every $1 invested. 

10 (18) High-energy dense and low-nutrient dense 

11 foods represent 30 percent of American’s total cal12 orie intake. Fast food company menus are twice the 

13 energy density of recommended healthful diets. 

14 (19) Research suggests that individuals eat too 

15 much high-energy dense foods without feeling full 

16 because the brain’s pathways that regulate hunger 

17 and influence normal food intake are not triggered 

18 by these foods. 

19 (20) Packaging, product placement, and high20 energy dense food content manipulation contribute 

21 to the overweight and obesity epidemic in the United 

22 States. 

23 (21) Such marketing and content manipulation 

24 techniques have been used by other industries to en25 courage consumption at the expense of health. To 


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1 help individuals make healthy choices, education and 

2 information must be available with clear, consistent, 

3 and accurate labeling. 

4 TITLE I—OBESITY TREATMENT, 

5 PREVENTION, AND REDUCTION 

6 SEC. 101. UNITED STATES COUNCIL ON OVERWEIGHT-OBE7 SITY PREVENTION. 

8 Part P of title III of the Public Health Service Act 

9 (42 U.S.C. 280g et seq.) is amended by— 

10 (1) redesignating section 399R (as inserted by 

11 section 2 of Public Law 110–373) as section 399S; 

12 (2) redesignating section 399R (as inserted by 

13 section 3 of Public Law 110–374) as section 399T; 

14 and 

15 (3) adding at the end the following: 

16 ‘‘SEC. 399U. UNITED STATES COUNCIL ON OVERWEIGHT17 OBESITY PREVENTION. 

18 ‘‘(a) ESTABLISHMENT.—The Secretary shall convene 

19 a United States Council on Overweight-Obesity Prevention 

20 (referred to in this section as ‘USCO–OP’). 

21 ‘‘(b) MEMBERSHIP.— 

22 ‘‘(1) IN GENERAL.—USCO–OP shall be com23 posed of 20 members, which shall consist of— 

24 ‘‘(A) the Secretary; 


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1 ‘‘(B) the Secretary (or his or her designee) 

2 of— 

3 ‘‘(i) the Department of Agriculture; 

4 ‘‘(ii) the Department of Education; 

5 ‘‘(iii) the Department of Housing and 

6 Urban Development; 

7 ‘‘(iv) the Department of the Interior 

8 ‘‘(v) the Federal Trade Commission; 

9 ‘‘(vi) the Department of Transpor10 tation; and 

11 ‘‘(vii) any other Federal agency that 

12 the Secretary of Health and Human Serv13 ices determines appropriate; 

14 ‘‘(C) the Chairman (or his or her designee) 

15 of the Federal Communications Commission; 

16 ‘‘(D) the Director (or his or her designee) 

17 of the Centers for Disease Control and Preven18 tion, the National Institutes of Health, and the 

19 Agency for Healthcare Research and Quality; 

20 ‘‘(E) the Administrator of the Centers for 

21 Medicare and Medicaid Services (or his or her 

22 designee); 

23 ‘‘(F) the Commissioner of Food and Drugs 

24 (or his or her designee); and 


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1 ‘‘(G) a minimum of 5 representatives, ap2 pointed by the Secretary, of expert organiza3 tions such as public health associations, key 

4 healthcare provider groups, planning and devel5 opment organizations, education associations, 

6 advocacy groups, relevant industries, State and 

7 local leadership, and other entities as deter8 mined appropriate by the Secretary. 

9 ‘‘(2) APPOINTMENTS.—The Secretary shall ac10 cept nominations for representation on USCO–OP 

11 through public comment before the initial appoint12 ment of members of USCO–OP under paragraph 

13 (1)(G), and on a regular basis for open positions 

14 thereafter, but not less than every 2 years. 

15 ‘‘(3) CHAIRPERSON.—The chairperson of 

16 USCO–OP shall be— 

17 ‘‘(A) an individual appointed by the Presi18 dent; and 

19 ‘‘(B) until the date that an individual is 

20 appointed under subparagraph (A), the Sec21 retary. 

22 ‘‘(c) MEETINGS.— 

23 ‘‘(1) IN GENERAL.—USCO–OP shall meet— 


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1 ‘‘(A) not later than 180 days after the date 

2 of enactment of the Obesity Prevention, Treat3 ment, and Research Act of 2009; and 

4 ‘‘(B) at the call of the chairperson there5 after, but in no case less often than 2 times per 

6 year. 

7 ‘‘(2) MEETINGS OF FEDERAL AGENCIES.—The 

8 representatives of the Federal agencies on USCO– 

9 OP shall meet on a regular basis, as determined by 

10 the Secretary, to develop strategies to coordinate 

11 budgets and discuss other issues that are not other12 wise permitted to be discussed in a public forum. 

13 The purpose of such meetings shall be to allow more 

14 rapid interagency strategic planning and interven15 tion implementation to address the overweight and 

16 obesity epidemic. 

17 ‘‘(d) DUTIES OF USCO–OP.—USCO–OP shall— 

18 ‘‘(1) develop strategies to comprehensively pre19 vent, treat, and reduce overweight and obesity; 

20 ‘‘(2) coordinate interagency cooperation and ac21 tion related to the prevention, treatment, and reduc22 tion of overweight and obesity in the United States; 

23 ‘‘(3) identify best practices in communities to 

24 address overweight and obesity; 


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1 ‘‘(4) work with appropriate entities to evaluate 

2 the effectiveness of obesity and overweight interven3 tions; 

4 ‘‘(5) update the National Institutes of Health 

5 1998 ‘Clinical Guidelines on the Identification, Eval6 uation, and Treatment of Overweight and Obesity in 

7 Adults: The Evidence Report’ and include sections 

8 on childhood obesity in such updated report; 

9 ‘‘(6) conduct ongoing surveillance and moni10 toring using tools such as the National Health and 

11 Nutrition Examination Survey and the Behavioral 

12 Risk Factor Surveillance System and assure ade13 quate and consistent funding to support data collec14 tion and analysis to inform policy; 

15 ‘‘(7) make recommendations to coordinate 

16 budgets, grant and pilot programs, policies, and pro17 grams across Federal agencies to cohesively address 

18 overweight and obesity, including with respect to the 

19 grant programs carried out under sections 306(n), 

20 399V, and 1904(a)(1)(H); 

21 ‘‘(8) make recommendations to update and im22 prove the daily physical activity requirements for 

23 students under the Elementary and Secondary Edu24 cation Act of 1965 (20 U.S.C. 6301 et seq.) and in25 clude recommendations about physical activities that 


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1 families can do together, and involving parents in 

2 these activities; 

3 ‘‘(9) make recommendations about coverage for 

4 obesity-related services and for an early and periodic 

5 screening, diagnostic, and treatment services pro6 gram under the State Children’s Health Insurance 

7 Program established under title XXI of the Social 

8 Security Act; 

9 ‘‘(10) make recommendations for obesity-re10 lated information, including height, weight, and body 

11 mass index, to be included in electronic health 

12 records for the purpose of ongoing surveillance and 

13 monitoring; and 

14 ‘‘(11) provide guidelines for childhood obesity 

15 health care related treatment under the early and 

16 periodic screening, diagnostic, and treatment serv17 ices program under the Medicaid program estab18 lished under title XIX of the Social Security Act and 

19 otherwise described in section 2103(c)(5) of such 

20 Act. 

21 ‘‘(e) REPORT.—Not later than 18 months after the 

22 date of enactment of the Obesity Prevention, Treatment, 

23 and Research Act of 2009, and on an annual basis there24 after, USCO–OP shall submit to the President and to the 

25 relevant committees of Congress, a report that— 


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1 ‘‘(1) summarizes the activities and efforts of 

2 USCO–OP under this section to coordinate inter3 agency prevention, treatment, and reduction of obe4 sity and overweight, including a detailed strategic 

5 plan with recommendations for each Federal agency; 

6 ‘‘(2) evaluates the effectiveness of these coordi7 nated interventions and conducts interim assess8 ments and reporting of health outcomes, achieve9 ment of milestones, and implementation of strategic 

10 plan goals starting with the second report, and year11 ly thereafter; and 

12 ‘‘(3) makes recommendations for the following 

13 year’s strategic plan based on data and findings 

14 from the previous year. 

15 ‘‘(f) TECHNICAL ASSISTANCE.—The Department of 

16 Health and Human Services may provide technical assist17 ance to USCO–OP to carry out the activities under this 

18 section. 

19 ‘‘(g) PERMANENCE OF COMMITTEE.—Section 14 of 

20 the Federal Advisory Committee Act (5 U.S.C. App.) shall 

21 not apply to USCO–OP.’’. 


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1 SEC. 102. GRANTS AND DEMONSTRATION PROGRAMS TO 

2 PROMOTE POSITIVE HEALTH BEHAVIORS IN 

3 POPULATIONS DISPROPORTIONATELY AF4 FECTED BY OBESITY AND OVERWEIGHT. 

5 Part P of title III of the Public Health Service Act 

6 (42 U.S.C. 280g et seq.), as amended by section 101, is 

7 amended by adding at the end the following: 

8 ‘‘SEC. 399V. GRANTS AND DEMONSTRATION PROGRAMS TO 

9 PROMOTE POSITIVE HEALTH BEHAVIORS IN 

10 POPULATIONS DISPROPORTIONATELY AF11 FECTED BY OBESITY AND OVERWEIGHT. 

12 ‘‘(a) ELIGIBLE ENTITY.—For purposes of this sec13 tion, the term ‘eligible entity’ means— 

14 ‘‘(1) a city, county, Indian tribe, tribal organi15 zation, territory, or State; 

16 ‘‘(2) a local, tribal, or State educational agency; 

17 ‘‘(3) a Federal medical facility, including a fed18 erally qualified health center (as defined in section 

19 1861(aa)(4) of the Social Security Act), an Indian 

20 Health Service hospital or clinic, any health facility 

21 or program operated by or pursuant to a contractor 

22 grant from the Indian Health Service, an Indian 

23 Health Service entity, an urban Indian center, an 

24 Indian tribal clinic, a health care for the homeless 

25 center, a rural health center, migrant health center, 

26 and any other Federal medical facility; 


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1 ‘‘(4) any entity meeting the criteria for medical 

2 home under section 204 of the Tax Relief and 

3 Health Care Act of 2006 (Public Law 109–432); 

4 ‘‘(5) a nonprofit organization (such as an aca5 demic health center or community health center); 

6 ‘‘(6) a health department; 

7 ‘‘(7) any licensed or certified health provider; 

8 ‘‘(8) an accredited university or college; 

9 ‘‘(9) a community-based organization; 

10 ‘‘(10) a local city planning agency; and 

11 ‘‘(11) any other entity determined appropriate 

12 by the Secretary. 

13 ‘‘(b) APPLICATION.—An eligible entity that desires a 

14 grant under this section shall submit an application at 

15 such time, in such manner, and containing such informa16 tion as the Secretary may require, including a plan for 

17 the use of funds that may be awarded and an evaluation 

18 of any training that will be provided under such grant. 

19 ‘‘(c) GRANT DEMONSTRATION AND PILOT PRO20 GRAM.— 

21 ‘‘(1) IN GENERAL.—The Secretary, acting 

22 through the Director of the Centers for Disease 

23 Control and Prevention, and in consultation with the 

24 United States Council on Overweight-Obesity Pre25 vention under section 399U, shall establish and 


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1 evaluate a grant demonstration and pilot program 

2 for entities to— 

3 ‘‘(A) prevent, treat, or otherwise reduce 

4 overweight and obesity; 

5 ‘‘(B) increase the number of children and 

6 adults who safely walk or bike to school or 

7 work; 

8 ‘‘(C) increase the availability and afford9 ability of fresh fruits and vegetables in the com10 munity; 

11 ‘‘(D) expand safe and accessible walking 

12 paths and recreational facilities to encourage 

13 physical activity, and other interventions to cre14 ate healthy communities; 

15 ‘‘(E) create advertising, social marketing, 

16 and public health campaigns promoting 

17 healthier food choices, increased physical activ18 ity, and healthier lifestyles targeted to individ19 uals and to families; 

20 ‘‘(F) promote increased rates and duration 

21 of breast-feeding; and 

22 ‘‘(G) increase worksite and employer pro23 motion of and involvement in community initia24 tives that prevent, treat, or otherwise reduce 

25 overweight and obesity. 


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1 ‘‘(2) SPECIAL PRIORITY.—Special priority will 

2 be given to grant proposals that target communities 

3 or populations disproportionately affected by over4 weight or obesity, including Native Americans, other 

5 minorities, and women. 

6 ‘‘(d) GRANTS TO PROMOTE POSITIVE HEALTH BE7 HAVIORS IN POPULATIONS DISPROPORTIONATELY AF8 FECTED BY OBESITY AND OVERWEIGHT.— 

9 ‘‘(1) IN GENERAL.—The Secretary, acting 

10 through the Director of the Centers for Disease 

11 Control and Prevention, may award grants to eligi12 ble entities to promote health behaviors for women 

13 and children in target populations, especially racial 

14 and ethnic minority populations in medically under15 served communities. 

16 ‘‘(2) USE OF FUNDS.—An award under this 

17 section shall be used to carry out any of the fol18 lowing: 

19 ‘‘(A) To educate, promote, prevent, treat 

20 and determine best practices in overweight and 

21 obese populations. 

22 ‘‘(B) To address behavioral risk factors in23 cluding sedentary lifestyle, poor nutrition, being 

24 overweight or obese, and use of tobacco, alcohol 

25 or other substances that increase the risk of 


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1 morbidity and mortality. Special priority will be 

2 given to grant applications that— 

3 ‘‘(i) propose interventions that ad4 dress embedded levels of influence on be5 havior, including the individual, family, 

6 peers, community and society; and 

7 ‘‘(ii) utilize techniques that promote 

8 community involvement in the design and 

9 implementation of interventions including 

10 community diagnosis and community-based 

11 participatory research. 

12 ‘‘(C) To develop and implement interven13 tions to promote a balance of energy consump14 tion and expenditure, to attain healthier weight, 

15 prevent obesity, and reduce morbidity and mor16 tality associated with overweight and obesity. 

17 ‘‘(D)(i) To train primary care physicians 

18 and other licensed or certified health profes19 sionals on how to identify, treat, and prevent 

20 obesity or eating disorders and aid individuals 

21 who are overweight, obese, or who suffer from 

22 eating disorders. 

23 ‘‘(ii) To use evidence-based findings or rec24 ommendations that pertain to the prevention 

25 and treatment of obesity, being overweight, and 


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1 eating disorders to conduct educational con2 ferences, including Internet-based courses and 

3 teleconferences, on— 

4 ‘‘(I) how to treat or prevent obesity, 

5 being overweight, and eating disorders; 

6 ‘‘(II) the link between obesity, being 

7 overweight, eating disorders and related se8 rious and chronic medical conditions; 

9 ‘‘(III) how to discuss varied strategies 

10 with patients from at-risk and diverse pop11 ulations to promote positive behavior 

12 change and healthy lifestyles to avoid obe13 sity, being overweight, and eating dis14 orders; 

15 ‘‘(IV) how to identify overweight, 

16 obese, individuals with eating disorders, 

17 and those who are at risk for obesity and 

18 being overweight or suffer from eating dis19 orders and, therefore, at risk for related 

20 serious and chronic medical conditions; and 

21 ‘‘(V) how to conduct a comprehensive 

22 assessment of individual and familial 

23 health risk factors and evaluate the effec24 tiveness of the training provided by such 


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1 entity in increasing knowledge and chang2 ing attitudes and behaviors of trainees. 

3 ‘‘(iii) In awarding a grant to carry out an 

4 activity under this subparagraph, preference 

5 shall be given to an entity described in sub6 section (a)(4). 

7 ‘‘(e) REPORTING TO CONGRESS.—Not later than 3 

8 years after the date of enactment of this section, the Di9 rector of the Centers for Disease Control and Prevention 

10 shall submit to the Secretary and Congress a report con11 cerning the result of the activities conducted through the 

12 grants awarded under this section. 

13 ‘‘(f) AUTHORIZATION OF APPROPRIATIONS.—There 

14 are authorized to be appropriated to carry out this section, 

15 $50,000,000 for fiscal year 2010, and such sums as may 

16 be necessary for each of fiscal years 2011 through 2013.’’. 

17 SEC. 103. NATIONAL CENTER FOR HEALTH STATISTICS. 

18 Section 306 of the Public Health Service Act (42 

19 U.S.C. 242k) is amended— 

20 (1) in subsection (m)(4)(B), by striking ‘‘sub21 section (n)’’ each place it appears and inserting 

22 ‘‘subsection (o)’’; 

23 (2) by redesignating subsection (n) as sub24 section (o); and 


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1 (3) by inserting after subsection (m) the fol2 lowing: 

3 ‘‘(n)(1) The Secretary, acting through the Center, 

4 may provide for the— 

5 ‘‘(A) collection of data for determining the fit6 ness levels and energy expenditure of adults, chil7 dren, and youth; and 

8 ‘‘(B) analysis of data collected as part of the 

9 National Health and Nutrition Examination Survey 

10 and other data sources. 

11 ‘‘(2) In carrying out paragraph (1), the Secretary, 

12 acting through the Center, may make grants to States, 

13 public entities, and nonprofit entities. 

14 ‘‘(3) The Secretary, acting through the Center, may 

15 provide technical assistance, standards, and methodologies 

16 to grantees supported by this subsection in order to maxi17 mize the data quality and comparability with other stud18 ies.’’. 

19 SEC. 104. HEALTH DISPARITIES REPORT. 

20 Not later than 18 months after the date of enactment 

21 of this Act, and annually thereafter, the Director of the 

22 Agency for Healthcare Research and Quality shall review 

23 all research that results from the activities carried out 

24 under this Act (and the amendments made by this Act) 

25 and determine if particular information may be important 


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1 to the report on health disparities required by section 

2 903(c)(3) of the Public Health Service Act (42 U.S.C. 

3 299a–1(c)(3)). 

4 SEC. 105. PREVENTIVE HEALTH SERVICES BLOCK GRANT. 

5 Section 1904(a)(1) of the Public Health Service Act 

6 (42 U.S.C. 300w–3(a)(1)) is amended by adding at the 

7 end the following: 

8 ‘‘(H) Activities and community education pro9 grams designed to address and prevent overweight, 

10 obesity, and eating disorders through effective pro11 grams to promote healthy eating, and exercise habits 

12 and behaviors.’’. 

13 SEC. 106. REPORT ON OBESITY AND EATING DISORDERS 

14 RESEARCH. 

15 (a) IN GENERAL.—Not later than 1 year after the 

16 date of enactment of this Act, the Secretary of Health and 

17 Human Services shall submit to the Committee on Health, 

18 Education, Labor, and Pensions of the Senate and the 

19 Committee on Energy and Commerce of the House of 

20 Representatives a report on research conducted on causes 

21 and health implications (including mental health implica22 tions) of being overweight, obesity, and eating disorders. 

23 (b) CONTENT.—The report described in subsection 

24 (a) shall contain— 


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1 (1) descriptions on the status of relevant, cur2 rent, ongoing research being conducted in the De3 partment of Health and Human Services including 

4 research at the National Institutes of Health, the 

5 Centers for Disease Control and Prevention, the 

6 Agency for Healthcare Research and Quality, the 

7 Health Resources and Services Administration, and 

8 other offices and agencies; 

9 (2) information about what these studies have 

10 shown regarding the causes, prevention, and treat11 ment of, being overweight, obesity, and eating dis12 orders; and 

13 (3) recommendations on further research that 

14 is needed, including research among diverse popu15 lations, the plan of the Department of Health and 

16 Human Services for conducting such research, and 

17 how current knowledge can be disseminated. 

18 TITLE II—FOOD AND BEVERAGE 

19 LABELING FOR HEALTHY 

20 CHOICES 

21 SEC. 201. FOOD AND BEVERAGE LABELING FOR HEALTHY 

22 CHOICES. 

23 (a) USCO–OP.—In this section, the term ‘‘USCO– 

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1 sity Prevention under section 399U of the Public Health 

2 Service Act (as added by section 101). 

3 (b) REFORM OF FOOD AND BEVERAGE LABELING.— 

4 The Secretary of Health and Human Services and the Sec5 retary of Agriculture, in consultation with the USCO–OP, 

6 shall, through regulation or other appropriate action, up7 date and reform Federal oversight of food and beverage 

8 labeling. Such reform shall include improving the trans9 parency of such labeling with regard to nutritional and 

10 caloric value of food and beverages. 

11 TITLE III—HEALTHY CHOICES 

12 FOOD AND BEVERAGE PRO13 GRAMS 

14 SEC. 301. FRESH FRUIT AND VEGETABLE PROGRAM. 

15 Section 19(i) of the Richard B. Russell National 

16 School Lunch Act (42 U.S.C. 1769a(i)) is amended— 

17 (1) by redesignating paragraphs (3) through 

18 (7) as paragraphs (4) through (8); and 

19 (2) by inserting after paragraph (2) the fol20 lowing: 

21 ‘‘(3) ADDITIONAL MANDATORY FUNDING.— 

22 ‘‘(A) IN GENERAL.—Out of any funds in 

23 the Treasury not otherwise appropriated, the 

24 Secretary of the Treasury shall transfer to the 

25 Secretary of Agriculture to carry out and exVerDate Nov 24 2008 23:45 May 18, 2009 Jkt 079200 PO 00000 Frm 00023 Fmt 6652 Sfmt 6201 E:\BILLS\S1060.IS S1060

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1 pand the program under this section, to remain 

2 available until expended— 

3 ‘‘(i) on October 1, 2009, $80,000,000; 

4 ‘‘(ii) on July 1, 2010, $130,000,000; 

5 ‘‘(iii) on July 1, 2011, $202,000,000; 

6 ‘‘(iv) on July 1, 2012, $300,000,000; 

7 and 

8 ‘‘(v) on July 1, 2013, and on each 

9 July 1 thereafter, the amount made avail10 able for the previous fiscal year, as ad11 justed under subparagraph (B). 

12 ‘‘(B) ADJUSTMENT.—On July 1, 2013, 

13 and on each July 1 thereafter the amount made 

14 available under subparagraph (A)(v) shall be 

15 calculated by adjusting the amount made avail16 able for the previous fiscal year to reflect 

17 changes in the Consumer Price Index of the 

18 Bureau of Labor Statistics for fresh fruits and 

19 vegetables, with the adjustment— 

20 ‘‘(i) rounded down to the nearest dol21 lar increment; and 

22 ‘‘(ii) based on the unrounded amounts 

23 for the preceding 12-month period. 

24 ‘‘(C) ALLOCATION.—Funds made available 

25 under this paragraph shall be allocated among 


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1 the States and the District of Columbia in the 

2 same manner as funds made available under 

3 paragraph (1).’’. 

4 TITLE IV—AMENDMENTS TO THE 

5 SOCIAL SECURITY ACT 

6 SEC. 401. COVERAGE OF EVIDENCE-BASED PREVENTIVE 

7 SERVICES UNDER MEDICARE, MEDICAID, AND 

8 SCHIP. 

9 (a) MEDICARE.—Section 1861(ddd) of the Social Se10 curity Act, as added by section 101 of the Medicare Im11 provements for Patients and Providers Act of 2008, is 

12 amended— 

13 (1) in paragraph (2), by striking ‘‘paragraph 

14 (1)’’ and inserting ‘‘paragraphs (1) and (3)’’; and 

15 (2) by adding at the end the following new 

16 paragraph: 

17 ‘‘(3) The term ‘additional preventive services’ 

18 includes any evidence-based preventive services 

19 which the Secretary has determined are reasonable 

20 and necessary, including, as so determined, smoking 

21 cessation and prevention services, diet and exercise 

22 counseling, and healthy weight and obesity coun23 seling.’’. 

24 (b) STATE OPTION TO PROVIDE MEDICAL ASSIST25 ANCE FOR EVIDENCE-BASED PREVENTIVE SERVICES.— 


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1 (1) IN GENERAL.—Section 1905 of the Social 

2 Security Act (42 U.S.C. 1396d) is amended— 

3 (A) in subsection (a)— 

4 (i) in paragraph (27), by striking 

5 ‘‘and’’ at the end; 

6 (ii) by redesignating paragraph (28) 

7 as paragraph (29); and 

8 (iii) by inserting after paragraph (27) 

9 the following: 

10 ‘‘(28) evidence-based preventive services de11 scribed in subsection (y); and’’; and 

12 (B) by adding at the end the following: 

13 ‘‘(y) For purposes of subsection (a)(28), evidence14 based preventive services described in this subsection are 

15 any preventive services which the Secretary has deter16 mined are reasonable and necessary through the process 

17 for making national coverage determinations (as defined 

18 in section 1869(f)(1)(B)) under title XVIII, including, as 

19 so determined, smoking cessation and prevention services, 

20 diet and exercise counseling, and healthy weight and obe21 sity counseling.’’. 

22 (2) CONFORMING AMENDMENT.—Section 

23 1902(a)(10)(C)(iv) of such Act is amended by in24 serting ‘‘, and (28)’’ after ‘‘(24)’’. 


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1 (c) STATE OPTION TO PROVIDE CHILD HEALTH AS2 SISTANCE FOR EVIDENCE-BASED PREVENTIVE SERV3 ICES.—Section 2110(a) of the Social Security Act (42 

4 U.S.C. 1397jj(a)) is amended— 

5 (1) by redesignating paragraph (28) as para6 graph (29); and 

7 (2) by inserting after paragraph (27) the fol8 lowing: 

9 ‘‘(28) Evidence-based preventive services de10 scribed in section 1905(y).’’. 

11 SEC. 402. COVERAGE OF MEDICAL NUTRITION COUNSELING 

12 UNDER MEDICARE, MEDICAID, AND SCHIP. 

13 (a) MEDICARE COVERAGE OF MEDICAL NUTRITION

14 THERAPY SERVICES FOR PEOPLE WITH PRE-DIABE15 TES.—Section 1861(s)(2)(V) of the Social Security Act 

16 (42 U.S.C. 1395x(s)(2)(V)) is amended by inserting after 

17 ‘‘beneficiary with diabetes’’ the following ‘‘, pre-diabetes 

18 or its risk factors (including hypertension, dyslipidemia, 

19 obesity, or overweight),’’. 

20 (b) STATE OPTION TO PROVIDE MEDICAL ASSIST21 ANCE FOR MEDICAL THERAPY SERVICES.— 

22 (1) IN GENERAL.—Section 1905(a) of the So23 cial Security Act (42 U.S.C. 1396d), as amended by 

24 section 401(b), is amended— 


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1 (A) in paragraph (28), by striking ‘‘and’’ 

2 at the end; 

3 (B) by redesignating paragraph (29) as 

4 paragraph (30); and 

5 (C) by inserting after paragraph (28) the 

6 following: 

7 ‘‘(29) medical nutrition therapy services (as de8 fined in section 1861(vv)(1)) for individuals with 

9 pre-diabetes or obesity, or who are overweight (as 

10 defined by the Secretary); and’’. 

11 (2) CONFORMING AMENDMENT.—Section 

12 1902(a)(10)(C)(iv) of such Act, as amended by sec13 tion 401(b)(2), is amended by striking ‘‘and (28)’’ 

14 and inserting ‘‘(28), and (29)’’. 

15 (c) STATE OPTION TO PROVIDE CHILD HEALTH AS16 SISTANCE FOR MEDICAL NUTRITION THERAPY SERV17 ICES.—Section 2110(a) of the Social Security Act (42 

18 U.S.C. 1397jj(a)), as amended by section 401(c), is 

19 amended— 

20 (1) by redesignating paragraph (29) as para21 graph (30); and 

22 (2) by inserting after paragraph (28) the fol23 lowing: 

24 ‘‘(29) Medical nutrition therapy services (as de25 fined in section 1861(vv)(1)) for individuals with 


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1 pre-diabetes or obesity, or who are overweight (as 

2 defined by the Secretary).’’. 

3 SEC. 403. AUTHORIZING EXPANSION OF MEDICARE COV4 ERAGE OF MEDICAL NUTRITION THERAPY 

5 SERVICES. 

6 (a) AUTHORIZING EXPANDED ELIGIBLE POPU7 LATION.—Section 1861(s)(2)(V) of the Social Security 

8 Act (42 U.S.C. 1395x(s)(2)(V)), as amended by section 

9 402, is amended— 

10 (1) by redesignating clauses (i) through (iii) as 

11 subclauses (I) through (III), respectively, and in12 denting each such clause an additional 2 ems; 

13 (2) by striking ‘‘in the case of a beneficiary 

14 with diabetes, pre-diabetes or its risk factors (includ15 ing hypertension, dyslipidemia, obesity, overweight), 

16 or a renal disease who—’’ and inserting ‘‘in the case 

17 of a beneficiary— 

18 ‘‘(i) with diabetes, pre-diabetes or its risk 

19 factors (including hypertension, dyslipidemia, 

20 obesity, overweight), or a renal disease 

21 who—’’; 

22 (3) by adding ‘‘or’’ at the end of subclause (III) 

23 of clause (i), as so redesignated; and 

24 (4) by adding at the end the following new 

25 clause: 


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1 ‘‘(ii) who is not described in clause (i) but 

2 who has another disease, condition, or disorder 

3 for which the Secretary has made a national 

4 coverage determination (as defined in section 

5 1869(f)(1)(B)) for the coverage of such serv6 ices;’’. 

7 (b) COVERAGE OF SERVICES FURNISHED BY PHYSI8 CIANS.—Section 1861(vv)(1) of the Social Security Act 

9 (42 U.S.C. 1395x(vv)(1)) is amended by inserting ‘‘or 

10 which are furnished by a physician’’ before the period at 

11 the end. 

12 (c) NATIONAL COVERAGE DETERMINATION PROC13 ESS.—In making a national coverage determination de14 scribed in section 1861(s)(2)(V)(ii) of the Social Security 

15 Act, as added by subsection (a)(4), the Secretary of 

16 Health and Human Services, acting through the Adminis17 trator of the Centers for Medicare & Medicaid Services, 

18 shall— 

19 (1) consult with dietetic and nutrition profes20 sional organizations in determining appropriate pro21 tocols for coverage of medical nutrition therapy serv22 ices for individuals with different diseases, condi23 tions, and disorders; and 

24 (2) consider the degree to which medical nutri25 tion therapy interventions prevent or help prevent 


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1 the onset or progression of more serious diseases, 

2 conditions, or disorders. 

3 SEC. 404. CLARIFICATION OF EPSDT INCLUSION OF PRE4 VENTION, SCREENING, AND TREATMENT 

5 SERVICES FOR OBESITY AND OVERWEIGHT; 

6 SCHIP COVERAGE. 

7 (a) IN GENERAL.—Section 1905(r)(5) of the Social 

8 Security Act (42 U.S.C. 1396d(r)(5)) is amended by in9 serting ‘‘, including weight and BMI measurement and 

10 monitoring, as well as appropriate treatment services (in11 cluding but not limited to) medical nutrition therapy serv12 ices (as defined in section 1861(vv)(1)), physical therapy 

13 or exercise training, and behavioral health counseling, 

14 based on recommendations of the United States Council 

15 on Overweight-Obesity Prevention under section 399U of 

16 the Public Health Service Act and such other expert rec17 ommendations and studies as determined by the Sec18 retary’’ before the period. 

19 (b) SCHIP.— 

20 (1) REQUIRED COVERAGE.—Section 2103 (42 

21 U.S.C. 1397cc) is amended— 

22 (A) in subsection (a), in the matter pre23 ceding paragraph (1), by striking ‘‘and (7)’’ 

24 and inserting ‘‘(7), and (9)’’; and 

25 (B) in subsection (c)— 


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1 (i) by redesignating paragraph (7) as 

2 paragraph (9); and 

3 (ii) by inserting after paragraph (6), 

4 the following: 

5 ‘‘(7) PREVENTION, SCREENING, AND TREAT6 MENT SERVICES FOR OBESITY AND OVERWEIGHT.— 

7 The child health assistance provided to a targeted 

8 low-income child shall include coverage of weight 

9 and BMI measurement and monitoring, as well as 

10 appropriate treatment services (including but not 

11 limited to) medical nutrition therapy services (as de12 fined in section 1861(vv)(1)), physical therapy or ex13 ercise training, and behavioral health counseling, 

14 based on recommendations of the United States 

15 Council on Overweight-Obesity Prevention under 

16 section 399U of the Public Health Service Act and 

17 such other expert recommendations and studies as 

18 determined by the Secretary.’’. 

19 (2) CONFORMING AMENDMENT.—Section 

20 2102(a)(7)(B) (42 U.S.C. 1397bb(c)(2)) is amended 

21 by striking ‘‘section 2103(c)(5)’’ and inserting 

22 ‘‘paragraphs (5) and (7) of section 2103(c)’’. 


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1 SEC. 405. INCLUSION OF PREVENTIVE SERVICES IN QUAL2 ITY MATERNAL AND CHILD HEALTH SERV3 ICES. 

4 Section 501(b) of the Social Security Act (42 U.S.C. 

5 701(b)) is amended by adding at the end the following 

6 new paragraph: 

7 ‘‘(5) The term ‘quality maternal and child 

8 health services’ includes the following: 

9 ‘‘(A) Evidence-based preventive services 

10 described in section 1905(y). 

11 ‘‘(B) Medical nutrition counseling for indi12 viduals with pre-diabetes or obesity, or who are 

13 overweight (as defined by the Secretary). 

14 ‘‘(C) Weight and BMI measurement and 

15 monitoring, as well as appropriate treatment 

16 services (including but not limited to) medical 

17 nutrition therapy services (as defined in section 

18 1861(vv)(1)), physical therapy or exercise train19 ing, and behavioral health counseling, based on 

20 recommendations of the United States Council 

21 on Overweight-Obesity Prevention under section 

22 399U of the Public Health Service Act and 

23 such other expert recommendations and studies 

24 as determined by the Secretary.’’. 


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1 SEC. 406. CHILDHOOD OBESITY INFORMATION, GUIDE2 LINES, AND REPORTING. 

3 The Secretary of Health and Human Services, acting 

4 through the Administrator of the Centers for Medicare 

5 and Medicaid Services, shall— 

6 (1) not later than 18 months after the date of 

7 the enactment of this Act, provide the State agencies 

8 responsible for administering the State plan ap9 proved under title XIX of the Social Security Act 

10 (42 U.S.C. 1396 et seq.) and the State child health 

11 plan approved under title XXI of the Social Security 

12 Act (42 U.S.C. 1397aa et seq.) with relevant data, 

13 information, and recommendations, as the Adminis14 trator deems appropriate, regarding the risks associ15 ated with childhood obesity and the importance of 

16 identifying at-risk children for treatment; 

17 (2) not later than 18 months after the date of 

18 the enactment of this Act, issue guidelines, or amend 

19 existing guidelines, concerning the development of 

20 pediatric obesity prevention programs for at-risk 

21 populations through the use of managed care tech22 niques, integrated service delivery models, disease 

23 management programs, and other methods that the 

24 Administrator deems appropriate; 


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1 (3) provide for the annual reporting by such 

2 State agencies of the number of children enrolled in 

3 a State Medicaid or child health plan that are— 

4 (A) screened for overweight or obesity; and 

5 (B) identified as at-risk for overweight or 

6 obesity and have been provided with appro7 priate medical follow-up services or counseling; 

8 and 

9 (4) prepare and submit an annual report to 

10 Congress on the percentage of children enrolled in a 

11 State Medicaid or child health plan that are 

12 screened for overweight or obesity and, for those 

13 identified as at-risk, receive appropriate medical fol14 low-up services or counseling. 

15 SEC. 407. EFFECTIVE DATE. 

16 (a) IN GENERAL.—Except as provided in subsection 

17 (b), this title, and the amendments made under this title, 

18 take effect on October 1, 2010. 

19 (b) EXTENSION OF EFFECTIVE DATE FOR STATE

20 LAW AMENDMENT.—In the case of a State plan under 

21 title XIX or XXI of the Social Security Act (42 U.S.C. 

22 1396 et seq., 1397aa et seq.) which the Secretary of 

23 Health and Human Services determines requires State 

24 legislation in order for the plan to meet the additional re25 quirements imposed by the amendments made by this secVerDate Nov 24 2008 23:45 May 18, 2009 Jkt 079200 PO 00000 Frm 00035 Fmt 6652 Sfmt 6201 E:\BILLS\S1060.IS S1060

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1 tion, the State plan shall not be regarded as failing to 

2 comply with the requirements of such title solely on the 

3 basis of its failure to meet these additional requirements 

4 before the first day of the first calendar quarter beginning 

5 after the close of the first regular session of the State leg6 islature that begins after the date of enactment of this 

7 Act. For purposes of the previous sentence, in the case 

8 of a State that has a 2-year legislative session, each year 

9 of the session is considered to be a separate regular ses10 sion of the State legislature. 

Æ 


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