Quotes of the Day

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."

Even plaintiffs' lawyers concede that food litigation is not exactly parallel to tobacco cases. "There are obvious causation issues," says Richard Daynard, a professor at Northeastern University School of Law, who was active in bringing lawsuits against Big Tobacco companies. "Someone who eats often at McDonald's also probably doesn't eat well at home and may lead a sedentary lifestyle." Food also has health benefits. But "there is no such thing as a healthy diet of smoking or smoking in moderation," says Daynard.

Even so, food companies may be vulnerable to lawsuits that allege they have engaged in misleading advertising — whether by misstating calorie information or failing to disclose health risks when describing a food as nutritious. Plaintiffs' lawyers argue that consumers who rely on inaccurate information can't make informed decisions about what to eat. Robert's American Gourmet just settled a class action claiming that the firm misstated the calorie and fat content of the popular Pirate's Booty snack and reportedly paid out more than $3 million. The company had no comment on the suit. McDonald's paid $12.5 million in 2001 and issued a public apology to settle a suit brought by former students of Banzhaf's for advertising that its fries were cooked in vegetable oil, leading consumers to think that they were vegetarian, when in fact they were also cooked in beef fat. McDonald's claims that lawsuit was unrelated to obesity issues, but Banzhaf sees a connection since McDonald's agreed it should have provided information about the ingredient. "That suit was brought by law students," says Banzhaf. "Just think what a big law firm could do."

Lawyers are already striking indirectly at food companies by examining their contracts with local school boards. In almost half of U.S. school districts, officials allow companies such as Coca-Cola and PepsiCo to sell soda in school vending machines or on-campus stores. Some school districts have exclusive arrangements with a soda company, which gets an opportunity to build brand loyalty among young consumers. In return, cash-starved schools receive up-front payments and in many cases a percentage of sales. The National Soft Drink Association claims that less than 10% of school districts have these exclusive arrangements, but that could still be as many as 1,200 districts. Studies by the World Health Organization, among others, suggest a link between childhood soda consumption and obesity.

The Seattle School Board's five-year contract allows only Coca-Cola products to be sold in school vending machines, and nets about $400,000 a year for school activities. In July Banzhaf and a local attorney threatened to sue the district and each school board member if the contract was renewed. The board, after a delay of several weeks, voted 4 to 3 to renew the contract anyway, but included a cancellation option, mandated that juice and water be included among vending-machine offerings and gave individual schools the option of banning sodas altogether. Steve Brown, the board vice president, voted for renewal, saying, "We're in a serious budget situation."

Plaintiffs' lawyers argue that school boards are liable on this issue because they have a special duty to look after students while they are in school. "Taking money from food companies to encourage the use of harmful products is an egregious violation of that duty," says Banzhaf.

Brita Butler-Wall, executive director of Seattle-based Citizens' Campaign for Commercial-Free Schools, has been lobbying the school board for more than a year to get rid of the Coca-Cola contract. Yet, as a parent of an eighth-grader in a local public school, she says, "I don't want to see our district spending its money hiring more lawyers to fight a legal battle." Adam Drewnowski, director of the Center for Public Health Nutrition at the University of Washington, says, "If you want to influence the school board, you run for a seat on the board. Threatening a lawsuit is almost like blackmail. It's just unconscionable."

Some fear that the use of such aggressive tactics will undermine quieter efforts to address health and nutrition issues. In several cities parents and teachers have succeeded in persuading school boards to remove junk food from hallways without resorting to lawsuits. A coalition of parents and teachers persuaded the Los Angeles Unified School District to ban soda sales in district schools beginning in 2004. In late August the school board will consider whether to set tougher nutrition standards for cafeteria menus and vending-machine snacks. In June the New York City Department of Education announced it would ban candy and soda from school vending machines and would reduce the fat content in cafeteria meals. Kelly Brownell, the director of the Yale Center for Eating and Weight Disorders and the author of a forthcoming book on the obesity crisis, Food Fight, worries that the public's perception of money-hungry lawyers trying to control food choice through the courts may cause a backlash against these and more measured public-health initiatives.

To others, the lawsuits seem a necessary evil. Jacqueline Domac, a nutrition teacher at California's Venice High School and an organizer of the Los Angeles coalition, says, "Just because we were able to get this done on a local level doesn't mean it will work everywhere. For some districts, it may take the threat of a lawsuit." Susan Roberts, a lawyer and consultant at the Agricultural Law Center at Drake University, agrees. "I've been involved in health policy for over 20 years," she says. "We haven't had a very large impact. Sometimes it takes litigation to get policies to change."

There's no shortage of people willing to consider litigation. Professor Daynard recently helped host a conference at Northeastern University School of Law to discuss "Legal Approaches to the Obesity Epidemic." More than 100 academicians, public-health experts and foundation representatives attended — along with several trial lawyers in training. Says Brian Murphy, a recent graduate of Rutgers Law School: "It's a very important and pressing issue, and its outcome will be with us for years to come. I'm hoping to be able to build a career out of this issue."

• Laura Bradford/Boston