- The Washington Times - Sunday, June 22, 2003

BOSTON — Trial lawyers, public health officials and consumer advocates chewed the fat yesterday about how to successfully sue and regulate the fast-food industry for serving unhealthy foods.

At an obesity litigation conference in Boston, about 120 attendees discussed planned lawsuit methods similar to ones used to sue tobacco companies. Those methods included using guerrilla lawsuits — several types of unexpected filings — against food companies, fast-food chains and restaurants, and pushing the envelope with cases that appear “frivolous” to get bigger results and larger settlements.

“Remember, many social movements were kick-started by litigation,” such as civil rights, environmental, sexual discrimination and tobacco laws, said John Banzhaf III, a conference speaker.

Mr. Banzhaf, a George Washington University law professor, led the charge against tobacco companies through the Public Health Advocacy Institute, and is encouraging lawyers to commit to suing fatty-foods makers and restaurants for millions.

“I don’t profit from these suits, but other attorneys will, and that may be the incentive they need to take on an organization,” such as fast-food giant McDonald’s, which already has paid more than $12 million to settle a fat-content lawsuit, he said.

But foods with high calorie and cholesterol content weren’t the only things being grilled in the auditorium of Shillman Hall at Northeastern University.

Some health advocates also wanted to ban food advertisements geared to children, simplify nutritional labels at restaurants and litigate against public schools that supply soft drinks and unhealthy foods.

“There is no one lawsuit that will solve the obesity problem that has become an epidemic,” said Michael Jacobson, executive director of the Center for Science in the Public Interest, a nonprofit health advocacy association.

“It’s going to take a whole lot of lawsuits to make a difference in public policy that will affect the dietary habits of the thousands that suffer obesity-related disease,” he said.

U.S. Surgeon General David Satcher called obesity the largest preventable epidemic in 2001, citing 300,000 annual deaths that cost taxpayers more than $117 billion in medical costs.

About 60 percent of adults and 13 percent of children are clinically obese, according to the Centers for Disease Prevention and Control.

Their condition makes them more susceptible to diabetes, hypertension, gall bladder disease and certain cancers.

Most of the strategy at the eight-hour session focused on ways to compare junk food to tobacco as an addictive drug that makes obesity more of a situational occurrence than one of personal choice.

Mr. Banzhaf cited a study in the February edition of New Scientist magazine that reported foods with fat or sugar cause changes in the brain often associated with addictive drugs.

But food-lovers and critics say the lawsuit plan is unfounded.

“These lawyers are trying to build a suit to convince one judge and one jury in order to rewrite the country’s entire public policy on food,” said David Martosko, research director at the Center for Consumer Freedom, a D.C. nonprofit coalition of food companies and restaurants promoting personal responsibility.

Mr. Martosko said increased suits would put the $115 billion fast-food industry at risk for higher food prices and job layoffs to pay for pricey settlements.

“Sure there is a saturation of fast-food joints in the cities and probably fewer grocery stores, but places like McDonald’s and Wendy’s have offered healthier alternatives like salads and baked potatoes,” he added.

But McDonald’s did not inform customers in the past about the fat contents in foods that were considered healthy, said Richard Daynard, a conference sponsor and chairman of the tobacco products liability project at the Public Health Advocacy Institute.

“There was deceptive advertising about McDonald’s fillet-of-fish and McNuggets, which had more calories than a burger,” Mr. Daynard said.

A McDonald’s spokesman did not return calls yesterday.

So far, there have been seven lawsuits filed against major food companies concerning fat intake and obesity.

Three of the cases have been settled, including a case against McDonald’s regarding the use of beef fat in its french fries, a misrepresentation claim that snack-food company Pirate Booty inaccurately reported its product calories, and a Florida ice cream company that underreported its saturated fat.

California lawyer Stephen Joseph said the largest opponent lawyers could face would be “the conservative, right-wing public.”

Mr. Joseph said he received thousands of angry e-mails from men when he sued Nabisco last month for not disclosing the trans fats in its Oreo cookies. He dropped the suit three days later, satisfied with the national attention from the media.

“It’s white males who love freedom versus moms who care about what their kids eat,” Mr. Joseph told the crowded room yesterday afternoon.

However, John Cook, a professor at Boston University’s School of Medicine, said the initial suits have brought a large public backlash.

Mr. Cook cautioned eager lawyers from attacking major food corporations such as Kraft Foods because they, in turn, could punish food-assistance programs that help low-income families.

“Whether or not we like Kraft Foods because they’re linked to [tobacco company] Phillip Morris, we do have to recognize that they are a major supporter of anti-hunger efforts,” he said.

Still, Marion Nestle, a New York University nutrition professor, said America has too much food and should have some regulations.

“There is an overabundance of food in this country … most people eat more than they should because of it,” Ms. Nestle said.

Mr. Banzhaf said at the conference that a series of lawsuits is expected to be filed later next week.

“This type of litigation is picking up speed and the food industry is worried,” he said.

Even if litigation does produce regulations, lawyers may be stuck with a harder challenge of defining healthy food, said Ross Petty, a Babson College professor and former attorney for the Federal Trade Commission.

“It’s very hard to draw the line on what is healthy because fatty foods are a healthy part of the diet when eaten in moderation,” Mr. Petty said. “They could prove that cigarettes caused cancer that killed you, but making the case with junk food is going to be a lot trickier.”

Conference members signed an affidavit this weekend vowing to sue fast-food companies for more nutritional labeling and less deceptive advertising practices.

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