Pierce Hollingsworth

You probably got a chuckle out of the two kids who sued McDonald’s last year for causing their obesity. How could a restaurant be liable for the propensity of its patrons to over-indulge, eschew proper physical exercise, or have a genetic predisposition to create excessive body fat? After all, a Big Mac, Cinnabon, Chicago-style pizza, or Häagen-Dazs sundae can be a harmless indulgence in an otherwise healthy diet, right?

Not according to a growing number of trial lawyers, flush with their multi-billion-dollar litigation successes over the tobacco industry. To them, it’s no joke—it’s an opportunity. Here’s why the food industry should be concerned:
These are not shyster lawyers, at least not in the conventional sense, and they don’t generally litigate on behalf of individual clients. They’re battle-tested attorneys with considerable credentials, access to media, and a propensity to launch coordinated, long-term actions in concert with government agencies. They have deep pockets and substantial motivation based on the convergence of two facts: obesity was declared a national epidemic in 1999 (today, 31% of U.S. adults between ages 20 and 74 are obese), and the food industry represents the most visible and lucrative potential target, no matter which side of the argument you’re on. The food–obesity connection clearly has emerged as the next litigation crusade.

Last January, the federal judge who dismissed that seemingly frivolous lawsuit against McDonald’s left the door open to further action, with his own suggestions about how it might be done. Thus, the complaint was reintroduced in late February, targeting the way in which McDonald’s processes its food, specifically additives and preservatives; fraudulent promotion of its food as a part of a healthy lifestyle; and failure to provide adequate nutrition information.

Not directly connected to the McDonald’s case, but chief among the growing number of legal crusaders is George Washington University law professor John Banzhaf. His recent public statements are a grim harbinger of litigation to come. He says that the battle won’t focus on one company or industry segment, and that he’s prepared for a long fight. Among the possible tactics is suing public school boards over their contracts with soft-drink and fast-food companies.

Also spearheading the effort is tobacco-war veteran Richard Daynard, a Northeastern University (Mass.) law professor. His focus is fast food, and he has scheduled a conference in June for interested attorneys, nutritionists, and industry experts to explore how litigation can best be used to address the obesity epidemic.

Daynard’s contention is that fast-food companies market their food as healthy, yet America is faced with an epidemic of obesity. Thus, the food is, in fact, not healthy and the claims are false, and, like the tobacco companies, fast food-companies are aware of and hiding this fact.

These lawyers also plan to test the contention that certain types of food are, in fact, addictive. “Nobody’s really tested the definition of addictiveness” (of food), contends Anthony Sebok, law professor at Brooklyn Law School.

Nobody disputes the fact that obesity is a critical national health problem. A 2001 U.S. Surgeon General’s report attributed 300,000 deaths a year to fat-related health problems. It noted that excess fat will soon cause more preventable deaths than cigarette smoking. This rise in obesity among the general population is particularly acute with children, where more than triple the number are overweight today than just 20 years ago. Diabetes, premature heart disease, respiratory problems, and other weight-related health issues are rising at an alarming rate. The cost is escalating in both human and economic terms.

“We are not eating healthier over time; in fact, our diets continue to get worse,” says Harry Balzer, vice president of The NPD Group, Inc., a New York–based research firm that tracks eating trends. Data collected over 25 years reveal that “instead of counting calories, fat or sugar, Americans increasingly focus on food that simply pleases them most,” he noted.

While experts agree on the size and scope of the problem, wide scientific and ideological rifts divide opinions about causes and cures. These will be explored in future columns. For now, however, it’s clear that trial lawyers are lining up with a cadre of consumer groups to fight the battle in the courtroom and the court of public opinion. It’s time for the food industry to be more proactive and coordinated in contributing to the public policy debate.

Contributing Editor
President, The Hollingsworth Group, Inc.
Wheaton, Ill.