Thursday, July 24, 2003

Trial lawyers and a consumer health group are teaming up to go after America’s ice cream, sending out legal notices to six major chains this week as the group released a study criticizing ice cream’s nutritional value.

They sent letters to Baskin-Robbins Inc., Ben & Jerry’s Homemade Holdings Inc., Cold Stone Creamery, the Haagen-Dazs Shoppes Inc., TCBY and Friendly Ice Cream Corp., telling the chains to add healthier alternatives and put nutritional facts on their store menu boards or face potential litigation.

“Your failure to disclose such obviously material information as unusually large calorie and saturated-fat loads may violate state consumer-protection laws and/or your common-law duty to disclose material facts, and may invite lawsuits from concerned consumers, legal-action organizations, or even state officials,” read one letter addressed to Haagen-Dazs President David Keil.

The letter was signed by George Washington University law professor John Banzhaf III, a leader in the obesity-lawsuit movement, and Michael F. Jacobson, executive director of the Center for Science in the Public Interest.

It’s the third type of notice Mr. Banzhaf has sent in the last month since organizing a conference on obesity lawsuits.

The warning highlights a report released Wednesday — National Ice Cream Day — by the CSPI, a Washington nonprofit, health-advocacy group that has been criticizing a range of snacks and fatty foods for the last 30 years.

The center, which has reported health problems with pizza, movie theater popcorn and Chinese food, among others, in the past, said a number of sundaes, waffle cones and milkshakes often have more than a entire day’s worth of fat and calories in one serving.

“We know consumers don’t assume that ice cream is a diet food, but most probably aren’t aware how much stuff is in one portion,” Mr. Banzhaf said.

For example, a Haagen-Dazs Mint-Chip Dazzler has 1,270 calories and 38 grams of saturated fat, about the same as eating a steak, salad and baked potato, the report said.

But ice cream lovers and manufacturers in the $20 billion industry argue the dairy food is an “indulgence” that consumers understand is naturally high in fat.

The United States leads the world in annual production of ice cream and related frozen desserts, with more than 1.6 billion gallons in 2001, according to the U.S. Department of Agriculture.

“We are making products available that are low in fat, but most people know that ice cream is an indulgent product to be enjoyed in moderation,” Ben & Jerry’s spokeswoman Chrystie Heimert said.

Kevin Donnellan, spokesman for Cold Stone Creamery, said the company had not received the letter. The company sells lower-calorie options, such as yogurt, sorbet and low-fat mix-ins.

Susan Ruland, spokeswoman of the international Ice Cream Association, part of a Washington trade group, said the task of putting out nutritional content would be “too cumbersome” for most restaurants.

“Ice cream shops thrive on creativity, and it would be extremely difficult for them to write out on the menu the calorie and fat count of each and every item,” Ms. Ruland said.

While Baskin-Robbins’ Canadian stores have displayed some nutritional content above ice cream tubs for the past 15 years, the world’s largest ice cream chain has no immediate plans to make a similar change in U.S. stores, Senior Marketing Director Joe Adney said.

Mr. Jacobson, CSPI’s co-founder, said he hoped the letters, which he signed to support Mr. Banzhaf, put enough legal pressure on the chains to force such a change on a wider scale.

Mr. Jacobson said food manufacturers are pushing consumers to eat cheaply priced foods in larger portions, “which ends up influencing consumer waistlines.”

Mr. Banzhaf said he expects ice cream restaurants to make changes next year. “They’re going to be just watching what happens this summer, but there is a real possibility for changes to take place next spring,” he said, citing recent nutrition-policy changes by Kraft Foods Inc. and McDonald’s Corp.

More than 100 lawyers and health lobbyists met in Boston June 20-22 to map out a strategy of filing obesity-liability lawsuits, particularly against the food industry.

The goal of the conference was not to put fast-food companies out of business, but to move them to offer healthier alternatives, Mr. Banzhaf said, adding that lawyers can win hefty settlements like the $246 billion one against four major tobacco companies.

Mr. Banzhaf has sent notices to five fast-food chains about the legal danger of the purportedly addictive properties in their food and to the Seattle Public School Board on the ramifications of its soda contract with Coca-Cola Co. Inc.

The duo is undeterred by a recent Gallup Poll indicating that nine of 10 Americans oppose holding the fast-food industry legally responsible for rising obesity rates in the country, now killing 300,000 people every year.

“There is less support out there for litigation, but people love nutritional fact labels and are frustrated they can’t get that same information when they go in a restaurant,” Mr. Jacobson said.

He helped D.C. Council member Phil Mendelson, at-large Democrat, draft a bill mandating restaurant chains in the District put nutritional information on menus or menu boards.

The council is expected to hold hearings after returning from its summer recess.

Mr. Banzhaf noted that even though only a small group of people was outraged over McDonald’s failure to disclose the use of beef fat in french fries, the fast-food giant shelled out $10 million in a settlement.

He said ice cream chains, which offer some nutrition facts about products on their Web sites, should have the information readily available to customers who want to count their calories.

“Customers are entitled to get nutrition information at the counter when they make their order, not buried on some Web site,” he said.

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