- The Washington Times - Wednesday, August 6, 2003

Lawyers targeting obesity are banking on child plaintiffs to win cases as they recruit international colleagues at a world tobacco-control conference in Finland this week.

Using children in lawsuits helped themsuccessfully sue Big Tobacco for a $246 billion settlement with the states in 1998, said John Coale, a D.C. lawyer who helped designthe settlement.

“The good obesity lawsuits are going to be the ones aimed at companies marketing to kids and schools selling junk products to children,” he said.

Those are suggestions thatGeorge Washington University law professor John Banzhaf III, head of the obesity-lawsuit movement, has taken to heart while sending legal notices to fast-food companies, public school systems and ice cream chains in the past two months.

Mr. Banzhaf has stressed the big potential for child plaintiffs in all of his lettersand noted that lawyers have more clout in the courtroom with child clients.

“When you have a child plaintiff, arguments about personal responsibility don’t wash very well with the jury,” Mr. Banzhaf said Tuesday from Helsinki.

He added that several foreign health lawyers are looking to join the movement.

Mike Burita, a spokesman for a Washington food-industry lobbying group, said he expected the trial lawyers to shift their strategy to children after last year’s botched obesity lawsuit.

New York City lawyer Samuel Hirsch sued four fast-food chains, saying they caused Bronx resident Caesar Barber’s obesity and health problems.

He dropped his suit but later filed another one in September, representing eight New York children who said McDonald’s Corp.’s food made them fat.

U.S. District Judge Robert Sweet dismissed the original suit in February, but allowed Mr. Hirsch to refile a complaint based on deceptive advertising. Judge Sweet said he would later decide if the suit will move forward.

“These personal-injury lawyers now see kids as the wedge issue to draw on public sympathy,” as anti-tobacco lawyers have in the past, said Mr. Burita, with the Center for Consumer Freedom.

But the obesity lawsuits still lack evidence of food companies having prior knowledge of hazardous components in their products, Mr. Hirsch said.

“We set our sights too high the first time, but we’ve regressed and found a stronger case” in claiming that companies falsely marketed to children, he said.

Michael F. Jacobson, executive director of the Center for Science in the Public Interest, said cases involving children are “an attractive element” in moving obesity lawsuits into the courtrooms.

“These will help stop food companies from practicing deceptive advertising that is pulling the wool over the eyes of adults as well as kids,” said Mr. Jacobson, who helped found the D.C. public-health advocacy group.

The ultimate goal is to limit or eradicate advertising aimed at children, Mr. Jacobson said.

Food and drink manufacturers spend about $13 billion a year on marketing to American children, said Marion Nestle, chairwoman of New York University’s Department of Nutrition, Food and Public Studies.

The Federal Trade Commission, which regulates advertising and marketing, said it does not plan to step up current regulations.

“We tried to get rid of marketing to kids in the 1970s and that didn’t end well,” said Mary Engle, the FTC associate director for advertising practices.

Congress limited the FTC’sauthority over commercial advertising.

Stephen Sheller, a veteran tobacco litigator, added that obesity lawsuits lack the public and government support that propelled the tobacco settlement.

“Nothing is going to be as strong as tobacco. These lawsuits are simply not in the same league,” Mr. Sheller said.

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