- The Washington Times - Monday, September 20, 2004

An overhead projection on display yesterday at a public health law conference summed up the group’s efforts: “Patience, hell. Let’s sue somebody.”

While public health advocates, trial lawyers and nutritionists had bandied about ideas of regulating food ads, obesity-related lawsuits were the frontline issue for the conclusion of the three-day conference at Northeastern University.

A panel of four lawyers argued that the fat lawsuit movement, which started after a U.S. surgeon general’s report in 2001 classified obesity as an epidemic, would need to extend beyond the obvious targets like restaurants, fast-food chains and food manufacturers to bring about substantial policy changes like tobacco lawsuits did.

George Washington University law professor John Banzhaf III, said the fat suits were still the group’s best weapon in using legal action to combat the U.S. obesity problem.

Obesity, which triggers chronic diseases like heart disease, diabetes and sleep apnea, is the second-largest cause of preventable deaths in America, after tobacco, with 400,000 annual deaths, according to the Centers for Disease Control and Prevention. Sixty-four percent of Americans are overweight or obese, the CDC said.

“Movements start with legal action,” Mr. Banzhaf said, noting that the obesity lawsuit drive had achieved more in the last few years than the first tobacco lawsuits. The tobacco suits eventually resulted in four major tobacco companies reaching a historic $246 billion legal settlement in 1998, three decades after the first suits were filed.

“We must remember that the anti-tobacco movement did not just sue the tobacco companies. We sued lots of people,” Mr. Banzhaf said. He advised his colleagues to consider suits against doctors who do not warn obese patients about their health risks.

Even parents of morbidly obese children, where it could be shown the parents did not try to protect their children from related health risks, could be fair game in custody disputes, he said. Those suits would follow the lead of ones where parents who smoked around their children lost partial or full custody.

Within the lawsuits against the food industry, most of the ideas centered on targeting for lawsuits ads that the panel called “unfair” and “deceptive.”

“A lot of current and recently past marketing practices deserve to be sued” for misleading consumers or targeting young audiences, said Dallas lawyer Steve Gardner.

Mr. Gardner showcased a marinara sauce with the words “all natural” on its label as an example. The problem, he said, was the sauce had high-fructose corn syrup, a sweetener used in many fatty foods. Some scientists have claimed the corn syrup is a main contributor to America’s bulging waistline.

If plaintiffs’ attorneys strike out against food companies, they also should try suing media entities that publish deceptive ads, said Mr. Gardner, the litigation director for the Center for Science in the Public Interest, a Washington public health advocacy organization often dubbed the “food police.”

But not all the lawyers on the panel were on board with the fat suits.

Eddie Correia, speaking as a lawyer who has consulted with the food and beverage industry, said the suggested suits would essentially argue unfairness, one of the most difficult law theories for private litigation.

“The kind of ads that you talked about regulating are unarguably unfair,” said Mr. Correia, counsel at the Washington office of international law firm Latham & Watkins LLP. But the ads are not deceptive, and the burden of proof becomes greater for the plaintiffs’ attorneys, he said.

Mr. Correia suggested the group, meeting under the umbrella of the Public Health Advocacy Institute, should cooperate with the Federal Trade Commission, which polices deceptive ads, rather than file the suits.

Scott Riehl, spokesman for a D.C. trade group, the National Food Processors Association, questioned the constitutionality of bringing lawsuits against food ads that comply with FTC rules. “It certainly sounds like it would become a First Amendment issue,” said Mr. Riehl who was not at the conference.

Other speakers at the conference urged more state and federal legislation to correct factors blamed for enlarging America’s waistline.

There are several bills pending in Congress and state legislatures that propose nutritional labeling on restaurant menus, limiting the number of vending machines in public schools and raising nutritional quality for public school meals. Meanwhile, there are opposing bills in several states and Congress that would insulate restaurants and the food industry from fat suits.

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