Fat Foods: Back in Court

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ILLUSTRATION FOR TIME BY BARRY BLITT

When a group of obese teenagers sued McDonald's, claiming that it made them fat, the widely publicized case drew howls of derision. But the burger giant and its competitors aren't laughing anymore. When Federal Judge Robert Sweet threw out the teenagers' case last February, reasoning that customers knew the dangers of eating Big Macs and supersize fries, he went on — in less noted parts of his ruling — to set the stage for future lawsuits. He noted that "Chicken McNuggets, rather than being merely chicken fried in a pan, are a McFrankenstein creation of various elements not utilized by the home cook," including ground chicken skin, hydrogenated oils and dimethylpolysiloxane, an antifoaming agent, and he questioned whether customers understood the risks of eating McDonald's chicken over regular chicken.

Attorneys for the teens, grateful for the judge's guidance, filed a revised lawsuit alleging that McDonald's engaged in deceptive advertising, in part because it failed to adequately disclose additives and processing methods that make its food less healthful. The suit is back in front of Judge Sweet, in New York City, for another round. (McDonald's says its McNuggets contain the same ingredients found in grocery-store chicken and says the second suit is as baseless as the first.)

Whether the case ultimately succeeds, many more are sure to follow. And unlike the original lawsuit, the new ones may have staying power. Trial lawyers have been busy meeting with public-health experts, legislators and nutritionists, and have refined their arsenal against both fast-food and packaged-food firms. Some arguments are speculative, such as the allegation that certain companies manipulated addictive properties in their junk food, as some tobacco companies did with their products. Lawyers claim, for example, that some fast-food restaurants deliberately raise the temperature at which they cook their fries to increase the amount of fat absorbed. Terrie Dort, president of the National Council of Chain Restaurants, calls such allegations "completely absurd and without scientific basis."

But two more tangible legal theories could pose a serious threat to the food firms. One is based on deceptive advertising, the other on aggressive marketing to children. Plaintiffs' lawyers are looking at school-board contracts that give big soda companies exclusive placement in school vending machines in return for cash payments. School boards from Seattle to New York City are reconsidering their partnerships with soda vendors. Thanks in part to the publicity generated by the initial lawsuit against McDonald's, "there has been a shift in perception," said Marion Nestle, chair of the Department of Nutrition and Food Studies at New York University, "from seeing obesity only as a personal or family responsibility to seeing it as a societal problem with societal solutions."

This trend has food companies scrambling to put on a healthier face. Kraft — the maker of Kraft Macaroni & Cheese, Oreo cookies and Oscar Mayer meats — recently promised to eliminate in-school marketing to children, introduce smaller portions and develop more nutritious products. The U.S. Food and Drug Administration has just required new disclosures of trans-fatty acids, a major cause of heart disease, on all packaged foods. McDonald's is working to reduce the use of trans fats for cooking its fries and has introduced a new premium line of salads nationally as well as leaner all-white-meat versions of its Chicken McNuggets in New York and Ohio. Even before the McDonald's lawsuit, Coca-Cola announced it was moving away from exclusive vending-machine contracts in schools. Coke also bought new brands like Odwalla, an organic-fresh-juice company, to add to its healthful offerings. Last month Applebee's International said it will start adding co-branded Weight Watchers products to its menu. Such tactics may help companies connect with more health-conscious consumers, but they also serve to protect against future lawsuits. "Obesity and liability are a place to watch over the next five to seven years," says David Adelman, a consumer-food analyst at Morgan Stanley who has also covered tobacco. "It would be a mistake to underestimate the creativity of plaintiffs' lawyers."

Policy changes among food marketers have done little to dampen the zeal of those lawyers, who worked for decades to get similar concessions from tobacco companies. "The changes are just part of the food companies' image campaign," says Samuel Hirsch of New York City, one of the lawyers behind the McDonald's suit. "Without accountability and legal standards, as soon as attention is focused elsewhere, they will pull back."

John Banzhaf, a longtime foe of tobacco and a professor of legal activism at George Washington University Law School, is among those leading the charge against firms he regards as junk-food peddlers. The idea of suing these companies came to him after a journalist called his attention to a 2001 Surgeon General's report noting that illness associated with obesity had cost the country $117 billion in the previous year alone. This figure was close to the average annual costs associated with smoking--$150 billion, according to the Surgeon General — and got Banzhaf wondering whether food companies were vulnerable to the same kind of lawsuits that have plagued Big Tobacco. "A fast-food company like McDonald's may not be responsible for the entire obesity epidemic," he says, "but let's say they're 5% responsible. Five percent of $117 billion is still an enormous amount of money." Walt Riker, a spokesman for McDonald's, responds, "That's absurd. People interested in the real issues are talking about the totality of an individual's lifestyle. McDonald's will do its part, but the lawsuits are publicity gimmicks."

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