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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."