- The Washington Times - Friday, September 26, 2003

The food industry must fight obesity-related lawsuits in the public arena, not by filing countersuits, legal analysts say.

Special-interest groups and trial lawyers, who have been filing legal notices and class-action lawsuits against the food industry and schools, have been careful not to overstep legal boundaries, lawyers said.

“If you look very carefully, there is a great deal of freedom in the legal system for lawyers and public-interest groups” from First Amendment rights, said Victor Schwartz, a Washington liability lawyer and general counsel to the American Tort Reform Association, a D.C. nonprofit group.

The lawyers, headed by George Washington University law professor John Banzhaf III, “have long-range plans for fast food and won’t slip up at the beginning of the movement,” Mr. Schwartz said.

Unless legal notices and lawsuits have explicit attacks about a certain company’s products that cause economic damage, food companies have little chance of winning any countersuit, he added.

“If I were advising a food manufacturer on this, I would tell them not to bring more litigation unless it was absolutely necessary, because more publicity on the matter is not smart,” Mr. Schwartz said.

State and federal courts also are less sympathetic to corporations, said Walter Olson, a senior fellow and legal analyst at the Manhattan Institute, a New York economic think tank.

Even if lawyers brought hundreds of lawsuits against a particular food company that had small errors in the broad attack, “those cases at best would be thrown out of court,” Mr. Olson said.

Mark Mansour, a partner at Washington law firm Keller & Heckman LLP, said the emerging lawsuits and legal notices are a tactic to sway public opinion toward holding the food industry responsible for people’s obesity and related diseases.

“Right now, the public opinion is against suing the food industry, and these lawsuits are an attempt to change that course,” much like early suits against tobacco companies, Mr. Mansour said.

While the food industry might not sue, manufacturers and restaurant chains aren’t taking the attacks lying down, Mr. Mansour noted.

“Food companies are coming back with facts and answering consumer demand,” he said.

Food manufacturer Kraft Foods Inc. and fast-food giant McDonald’s Corp. have been sued in the past year over charges that their food caused obesity or did not disclose enough nutritional facts to consumers.

Even though the suits were dropped or later dismissed, the companies made broad health changes in their products and menus and added health councils to advise on healthier serving sizes and foods.

Other fast-food and restaurant chains like Burger King, Wendy’s and Applebee’s have followed, rolling out low-fat items and combo meals.

“Restaurants are being proactive when it comes to this litigation and are focusing on helping consumers with moderation, balance, diet and physical activity,” said Steven Anderson, president and chief executive officer of the National Restaurant Association, a Washington trade group.

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