- The Washington Times - Saturday, October 18, 2003

The average consumer craving a Reese’s Cup or Big Mac probably isn’t aware that his indulgence is at the center of a widening legal battlefield. While the public sees “fun foods,” a group of lawyers and public health advocates sees a “toxic environment” encouraging Americans to put on extra pounds and increase their health risks.

The group is trying to punish the food industry for the nation’s increasing obesity rate by filing class-action lawsuits. It is lobbying federal, state and local governments to impose taxes and demand warning and more nutrition labels.

Lawmakers nationally and locally have proposed taxing and regulating foods they say contribute to the problem, but the food industry says the measures will drive up food prices and do little to stop the rising obesity rate.

Food companies argue real change starts with people taking responsibility for their choices and cite the growing demand for low-fat foods as indicating that Americans are taking charge of their weight.

Heading to court

Obesity-related lawsuits against fast-food chains and other food companies began cropping up after an “obesity epidemic” was announced by former U.S. Surgeon General David Satcher in December 2001.

Since then, the suits either have been dropped, thrown out of court or ended in hefty settlements.

New York lawyer Samuel Hirsch sued fast-food giant McDonald’s Corp. and three other fast-food chains in July 2002 for contributing to the obesity-related diseases of Bronx resident Caesar Barber.

The case was dismissed, but Mr. Hirsch later brought another case against McDonald’s, saying false advertising practices caused the obesity of eight New York children.

A U.S. District judge recently dismissed that case, citing lack of evidence. But the floodgates had opened:

• A journalist in April 2002 sued Robert’s American Gourmet Foods Inc., a New York manufacturer, for not disclosing the total fat content in its Pirate’s Booty snack, which was touted as low-fat. The company shelled out almost $4 million and changed the labels to settle the class-action lawsuit.

• Kraft Foods Inc., the nation’s largest food manufacturer, was sued in May for not informing consumers about the trans fatty acids, or trans fat, in its Oreo cookies. California lawyer Stephen Joseph dropped the suit several days after filing it, but Kraft announced plans to market a trans-fat-free Oreo as part of a wider health initiative.

• McDonald’s and fast-food compatriots KFC, Wendy’s International Inc., Burger King and Taco Bell received a legal notice in June from George Washington University law professor John Banzhaf III warning the chains of lawsuits if they continued to sell fatty foods.

• Legal notices, sent by Mr. Banzhaf’s group of trial lawyers, targeted the Seattle Public School Board’s plans in July to extend an exclusive-rights pouring contract with Coca-Cola Co. Inc. The board voted for a watered-down contract with Coke.

• Five ice-cream parlor chains were warned in July after the Center for Science in the Public Interest, a Washington food watchdog group called the “food police” by critics, published a report on the high-caloric intake of the frosty treats. The legal notice, sent by Mr. Banzhaf and CSPI Executive Director Michael Jacobson, encouraged ice-cream franchises to put calorie counts on menus in their stores or face future lawsuits.

Slimming down

Several food companies initially reacted to the notices by pointing out that they sell a variety of products, from healthy to not-so-healthy. Others dismissed the claims as frivolous and emphasized personal choice and responsibility.

Seattle restaurant 5 Spot in September began handing out tongue-in-cheek waivers to customers who ordered the “The Bulge” dessert, made of bananas and ice cream.

Restaurant owner Peter Levy said the dessert and waiver are in response to the “frivolous” lawsuits.

But some large players in the $1 trillion food industry have taken the threats seriously and have begun setting up employee and public health programs.

Burger King last monthintroduced a new line of low-fat chicken sandwiches, including a “lite” combo meal, for its 8,000 U.S. franchises. McDonald’s has rolled out low-fat salads and yogurt parfaits and set up a global health advisory council.

Kraft in July stopped all of its in-school marketing. The company says it plans to reduce the size of its single-serving portions, offer more low-fat products and provide more nutritional information.

Many food companies say they made the changes to stay competitive. Demand for healthier meals is rivaling sales of more fattening products such as McDonald’s new McGriddle breakfast sandwich, one of the company’s sales leaders.

Others in the food industry decline to discuss the litigation and refer questions to national trade associations such as the Grocery Manufacturers of America Inc.

“Food companies are viewing these lawsuits as being a collective effort against the industry,” GMA spokeswoman Stephanie Childs said.

Most of the foods under fire tend to be “fun foods” that are meant to be eaten in moderation, said Rhona Applebaum, spokeswoman for the National Food Processors Association, a D.C. trade group.

Candy-store franchiser David Rosenberg said a “bad food” — dark chocolate — has been praised recently for its health benefits, which include lowering blood pressure and increasing levels of “good” cholesterol.

“Who determines what is junk food when dark chocolate is good heart food,” asked Mr. Rosenberg, chairman and chief executive officer of Candy Express Inc., a Columbia, Md., candy shop chain.

Candy makers are keeping an eye on the lawsuits, said Susan Smith, spokeswoman for the National Confectioners Association, a Vienna, Va., trade group. Several companies are offering sugar-free products for diabetics.

The companies have not been sued, but J.P. Morgan Chase lists Hershey Foods Corp. as the company most likely to be targeted. The Hershey, Pa., chocolate manufacturer referred questions to the trade group.

Product liability lawyer Joanne Gray, who has represented the food industry, said companies should be more open about product content.

Ms. Gray, a partner with national law firm Goodwin Procter LLP, said she expected the obesity cases to gain traction in the courts, citing a June conference in Boston at which 120 lawyers and health advocates met to map out lawsuit strategy.

“You don’t get that many plaintiffs lawyers and advocates together without some serious plans of going forward and making an impact,” she said.

What about the children?

The trial lawyers have started using children in their attack against unhealthy food, prompting companies and organizations to rethink their strategies.

Mr. Banzhaf says children are the best plaintiffs because they can win big dollars from sympathetic juries.

School systems are seeking out food-service companies offering low-fat options such as cookies and hamburgers made with fruit. They also have scaled back or banned in-school soda sales.

Toys linked with food in advertising and marketing, such as Mattel’s McDonald’s Barbie collection, also will be hit.

“That didn’t happen by accident. The association [of food labels on toys] is inoculating children to eat fattening foods at fast-food restaurants,” Mr. Banzhaf said.

Mattel spokeswoman Lisa Marie Bongiovanni countered that toys based on food are part of the growing-up process.

Food-based toys “pre-date Mattel, because children have been playing pretend in the kitchen for years,” she said.

Food toys first were advertised on television in 1952, when Hasbro introduced Mr. Potato Head.

McDonald’s later incorporated toys into its first Happy Meal in 1979.

Mr. Jacobson said he hopes state attorneys general will take on food companies the way they took on major tobacco companies. That effort resulted in a $246 billion settlement with the states in 1998.

But not all lawyers see fat suits as a sure thing.

Chicago plaintiffs attorney Robert Clifford said lawyers will sign up thousands of people to a case against a food company, similar to tactics used in the Big Tobacco suits.

But the volume-based suits will not go far because defendants can argue that the plaintiffs can choose not to eat the food, Mr. Clifford noted.

“These cases are one more reason for bad lawyer jokes.”

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Fattening up

Obesity in America has increased by 74 percent during the past decade to 44 million adults in 2001, according to the Centers for Disease Control and Prevention.

The proportion of Americans who are severely obese also has soared from 1 in 200 adults in 1986 to one in 50 adults in 2000, according to a study by the Rand Corp. in Santa Monica.

About 127 million adults are overweight, according to the American Obesity Association.

That means two-thirds of adults nationwide are more at risk for developing conditions such as high blood pressure, diabetes, heart disease, stroke, gall bladder disease and certain cancers.

Health officials have classified the condition as a problem that kills 300,000 each year, according to the most recent research.

The rise in obesity costs U.S. businesses an estimated $12.7 billion in health care, sick leave and insurance premiums, according to a recent study in the American Journal of Health Promotion.

“Simply put, it’s a lack of physical activity, a diet that is not well-balanced and sedentary workplace and lifestyle that has caused the obesity epidemic,” said U.S. Surgeon General Richard H. Carmona.

Increased television watching, larger meal sizes and inventions such as the remote control and riding lawn mowers have pushed up obesity rates, said William Dietz, director for the nutrition and physical activity division at the Centers for Disease Control and Prevention.

Additionally, the work force has shifted from agriculture and manufacturing to service jobs, in which workers sit in front of computers all day, he said.

Americans have longer workdays than those in most other countries, cook fewer home meals and rely more on frozen and fast food for nutrition, said Katherine Tallmadge, spokeswoman for the National Dietetics Association.

And suburban sprawl isn’t helping.

A recent University of Maryland study found that people living in the suburbs where homes are mainly accessible by car were more likely to be obese. People in more developed counties tended to exercise more from climbing stairs or walking to errands, said Reid Ewing, research professor and author of the study.

Legislating the problem

While lawyers use the courts to try to change the way Americans eat, lawmakers are proposing “junk food taxes” and other measures.

U.S. Rep. Rosa DeLauro, Connecticut Democrat, plans to introduce a bill requiring restaurant chains to put calorie information on their menu boards.

The bill mirrors measures by several state legislators and D.C. Council member Phil Mendelson, at-large Democrat. Mr. Mendelson’s bill will have its first hearing in November.

New York Assemblyman Felix Ortiz, Brooklyn District Democrat, introduced a bill in June for a statewide tax on fatty foods for a childhood obesity-prevention program.

The bill would add a 0.25 percent sales tax on food and drink currently taxed, except for bottled water. It also would add a 1 percent sales tax on other foods and drinks that are not taxed but considered to be sweets, according to the National Nutrient Database for Standard Reference.

The 1 percent sales tax would apply to all sales and rentals of movies and video games, and movie theater ticket sales, which Mr. Ortiz said have contributed to the decline in physical activity.

Companies would pay another tax on their New York share of advertising any the products on television shows primarily watched by children under 18.

California legislators recently passed a bill banning the sale of soda in elementary schools and restricting sales in middle schools. Several California cities, including Los Angeles and San Francisco, have banned in-school soda.

Sen. Mitch McConnell, Kentucky Republican, has proposed making obesity-related lawsuits illegal. His bill, similar to a House measure by U.S. Rep. Ric Keller, Florida Republican, prohibits any lawsuits against food companies claiming injuries related to obesity or weight gain.

Consumers pay price

Litigation and increased regulation would mean higher prices.

Companies may be forced to pay hefty settlements or jury awards, redo menus to add calorie counts, or create new packaging to stress their products’ low-fat content.

Inevitably, those costs would get passed on to consumers although the food companies say they would try not to.

Restaurants, reluctant to increase prices, would look internally to cut costs, which would include jobs, said Hudson Riehle, research senior vice president at the National Restaurant Association.

Food manufacturers would have to raise prices to stay afloat, said Curt Mercadante, spokesman for the National Corn Refiners Association. The D.C. organization represents corn refiners that make high-fructose corn syrup, an essential sweetener in most foods.

Higher food prices caused by taxes or lawsuits “would end up hurting low-income families, the very people these lawyers say they want to help,” Mr. Mercadante said.

Low-income people tend to be more overweight than the average population because they buy cheaper, sugar-laden foods and have less knowledge of healthy diets, said Roland Sturm, a senior economist with Rand Corp.

Also, as more states tighten nutritional guidelines, schools stand to lose millions of dollars from vending machine sales.

About 70 percent of 832 public schools polled in 2001 said they had a partnership with a food or beverage company to fund programs, a National Association of Secondary School Principals report said.

Some principals are worried about losing their ability to have food fund-raising programs in schools, said Michael Carr, spokesman for the Reston association.

Despite all the measures, in the end people will use personal choice to make changes in their weight, Ms. Tallmadge said.

“People eat the foods within their environment, so you must create a healthy environment to lose weight.”

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