Lawyers Put Their Weight Behind Obesity Cases

By Karen Robinson-Jacobs

July 2, 2003 12 AM PT

Times Staff Writer

BOSTON -- Last week, behind closed doors, veteran attorneys of the tobacco wars taught a class on how to attack what they say is the nation’s latest health affliction: fast food.

The session at Northeastern University was as secretive as McDonald’s has been about the special sauce on a Big Mac.

Those who attended the class -- about two dozen lawyers, health activists and nutritionists, most of them svelte -- signed affidavits promising not to reveal to the food industry any of the strategies they learned at the symposium: “Legal Approaches to the Obesity Epidemic.”

Although the obesity-lawsuit movement is in its infancy, attorneys who won billion-dollar judgments against cigarette makers see similar possibilities in going after companies that sell fat-laden, calorie-loaded fare.

“I think food is the tobacco of the 21st century,” said Susan Roberts, who recently graduated from Drake University’s School of Law and attended the two-day symposium last month. Roberts, who gave up a restaurant consulting practice to attend law school, said her career goal is to get involved in a lawsuit that holds the nation’s fast-food restaurants at least partially to blame for obesity in America.

The food industry is catching on.

Kraft Foods Inc., maker of Oscar Mayer meats, Oreo cookies, Lunchables and other products, said Tuesday that it would reduce the size of its snack foods (while keeping prices the same) and end marketing campaigns in schools in an effort to stem obesity.

“We think it’s the right thing to do for the people who use our products,” said Michael Mudd, Kraft spokesman. “If along the way these steps discourage a plaintiff’s attorney ... that’s fine with us.”

Meanwhile, the U.S. Chamber of Commerce is scheduled today to release a study that it says shows “there is little conclusive evidence” that fast food “is a primary cause of obesity.” The study is called “Burgers, Fries and Lawyers: The Beef Behind Obesity Lawsuits.”

Regardless of who is to blame, Americans are losing the battle of the bulge.

Since the 1980s, the number of obese adults has doubled to 38.8 million, while the ranks of overweight youths have tripled to nearly 9 million, according to the Department of Health and Human Services.

An estimated 300,000 deaths in the United States each year are associated with excess weight, compared with more than 400,000 yearly deaths linked to cigarette smoking and second-hand smoke, the department said.

Plaintiffs lawyers believe that the rapid rise in obesity makes fast food chains and snack food companies prime targets.

“There’s no question that their marketing ploys have contributed” to the obesity problem, said attorney Richard Daynard, one of the speakers at the Boston symposium and president of the Tobacco Products Liability Project.

By filing suit against major corporations, Daynard added, plaintiffs might encourage food purveyors to serve up healthier offerings. “We want to get the most bang for the buck,” he said.

Among the areas on which Daynard and other lawyers say they plan to focus: vague ingredient labels; ads for snack foods and fast foods that fail to reveal health hazards; and the food industry’s targeting of teenagers and younger children.

“There are a number of common techniques useful in legal activism,” said John Banzhaf, a law professor at George Washington University who also spoke in Boston. Banzhaf founded Action on Smoking and Health, which helped push cigarette ads off TV, and later campaigned for smoking bans on airplanes and in other public places.

Banzhaf is unapologetic that some lawyers will be motivated by money, not only public good.

“We’re assuming that in any kind of suit -- tobacco, obesity, civil rights -- it’s often difficult to get attorneys to bring these cases unless they can see that they will make money,” he said.

Last month, Banzhaf put McDonald’s, KFC, Taco Bell and Burger King on legal notice. He formally requested that the giants of the $116-billion fast food industry put warning labels on their burgers, fries, chicken wings and nachos to alert customers about possible negative health effects.

Among other things, he wrote, “a growing body of evidence” indicates that fast food “may produce addictive-like effects.”

Banzhaf points to a February article in New Scientist magazine that said: “Fats and simple sugars can act on the brain in the same way as nicotine and heroin.” The article was based on a few studies on rats, including one at Princeton University.

The restaurant industry dismisses such claims.

The anti-obesity movement amounts to “more lawyers trying to cash in on the hysteria” than trying to find solutions to the problem, said Mike Burito, a spokesman for the Center for Consumer Freedom, the restaurant industry’s public relations arm. The group has spent $100,000 on an ad campaign deriding obesity suits as frivolous attacks on freedom of choice.

To try to fend off litigation, Rep. Ric Keller (R-Fla.) in January introduced a bill to protect restaurants from obesity suits unless they violated a specific state or local law. The bill is expected to come before the House Judiciary Committee by the fall.

“The trial lawyers have decided that restaurants will be the next big tobacco,” Keller said at a hearing last month. “It’s time to stop them in their tracks before they destroy the food industry.”

At least two food suits already have grabbed headlines.

Two months ago, San Francisco attorney Stephen Joseph filed suit in Marin County against Kraft to stop the company from marketing its Oreo cookies to children in California.

He centered his case on “trans fat,” an ingredient commonly used in packaged baked goods, fast foods and fried foods that has been linked to arthritis, cancer and cardiovascular disease. Joseph withdrew the suit two weeks after filing it, saying the issue had become “so thoroughly publicized” that he wouldn’t have been able to convince a judge that consumers remain unaware of trans fat dangers.

The other high-profile case was lodged against McDonald’s Corp. by eight obese teenagers in U.S. District Court in New York.

The suit alleges that McDonald’s advertising contributed to the obesity of the teenagers -- and countless other young people -- by hiding the health risks of Big Macs, Chicken McNuggets and other foods high in fat, salt and cholesterol. McDonald’s attorneys have called the suit frivolous and last week asked U.S. District Judge Robert Sweet to dismiss the case. Sweet has not ruled on the request.

The plaintiffs include 19-year-old Jazlyn Bradley, who started her day at McDonald’s and averaged two meals a day there, five days a week, for four years. That contributed to the 270 pounds on her 5-foot-6-inch frame, said the attorney who brought the suit, Samuel Hirsch. Another plaintiff is Gregory Rhymes, 15, a 400-pound diabetic who ate at McDonald’s daily for several years, Hirsch said.

Hirsch, who usually represents victims of traffic accidents, first filed suit against McDonald’s last August, alleging the chain’s food has addictive qualities.

Judge Sweet dismissed that case in February. But Hirsch refiled, narrowing the suit to false-advertising claims.

McDonald’s defends its ads as truthful and says it isn’t to blame for the plight of Hirsch’s clients. “We are not the cause of the plaintiffs’ weight-related health issues,” said Lisa Howard, a McDonald’s spokeswoman. “We provide a wide variety of choices on our menu,” including salads, she said.

At the Boston event, participants didn’t get a choice. The lunch menu featured small plates of pasta salad and grilled-chicken sandwiches.

A look inside a Lunchable

Kraft Foods Inc. has said it will reduce the size of its snack foods. Here is a look at the nutrition information for one of its products, the Oscar Mayer Lunchables Mega Pack Deep Dish Pizza, Pepperoni Flavor. The meal includes a cola drink and a peanut butter cup.

Nutrition Facts

*--* Serving size 194 grams

Calories 760

Calories from fat 260 % Daily Value*

Total fat 28 grams 43%

Saturated fat 10 grams 50%

Cholesterol 40 milligrams 13%

Sodium 1,250 milligrams 52%

Total carbohydrate 105 grams 35%

Dietary fiber 4 grams

Sugars 65 grams

Protein 22 grams