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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."