Fat Foods: Back in Court

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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."