Making a case against trans fats

Emboldened by the success of legal battles with the tobacco industry, plaintiffs’ attorneys are setting their sights on a new target: companies that market fast-food and snack products to an increasingly overweight American public. The suits seek to hold companies responsible for the health effects of hamburgers, French fries, cookies and similar fare.

The latest effort is a lawsuit filed May 1 by San Francisco attorney Stephen L. Joseph seeking to stop the marketing and sale of Oreo cookies to California children because they contain trans fats, a type of fat that has been linked to high cholesterol, heart disease and diabetes. The suit, filed in Marin County Superior Court against Kraft Foods North America Inc., is said to be the first case nationally to target a product containing trans fats. Many scientists now say that trans fats, which are commonly found in cookies, crackers and margarine, appear to be as unhealthful as saturated fats found in meat and dairy products.

Commenting on the suit, Michael Mudd, a Kraft spokesman in Northfield, Ill., said: “Nutrition issues are best left to health professionals and regulatory agencies.” He said the company has been exploring ways to reduce levels of saturated and trans fats in its products.

Critics of these suits say that courtrooms are not the appropriate place to deal with such pervasive health problems as obesity, heart disease and diabetes, and that individuals should take responsibility for what they eat and what they feed their families. A better strategy, they contend, is to improve food product labeling and provide more nutrition education to help people make better-informed dietary decisions.

Earlier this year, a federal judge in New York threw out a class-action lawsuit that blamed the McDonald’s hamburger chain for obesity, diabetes and other health problems in children. U.S. District Judge Robert Sweet said the plaintiffs did not demonstrate that McDonald’s products “involve a danger that is not within the common knowledge of consumers.”

That decision, however, did not dampen interest among some attorneys and public health advocacy groups.

The federal Centers for Disease Control and Prevention estimates that 15% of U.S. kids ages 6 to 19 and 64% of U.S. adults were overweight or obese in 1999-2000.

“The strategy of using the courts is a very valuable one,” said Michael Jacobson, executive director of the Washington-based Center for Science in the Public Interest, who says results can be gained in courts faster than through Congress or federal regulatory agencies. Jacobson’s nonprofit advocacy group focuses on food safety and nutrition.

But Adam Drewnowski, director of the University of Washington’s Center for Public Health Nutrition, said the courts are the wrong battleground. He favors improving food labeling so consumers can make informed choices for themselves and their kids. The surgeon general has estimated that excess weight and obesity have an annual public health cost of $117 billion. The problem is rooted not only in what we eat, but how much we eat and how much we exercise.

“I think the average person -- and we’ve done surveys to support this -- is very well aware of what they need to do to lose weight,” said David B. Allison, director of the Clinical Nutrition Research Center at the University of Alabama at Birmingham. The problem, of course, is that many people have difficulty acting on familiar advice to eat less and exercise more.

Plaintiff’s attorneys point out that judges and juries have been swayed before by arguments that corporations should be held accountable when their products were shown to damage health.

Next month, public health advocates, attorneys and scholars will gather for the first conference on “Legal Approaches to the Obesity Epidemic” sponsored by the Public Health Advocacy Institute, a group established by law professors at Northeastern University and medical professors at the Tufts University School of Medicine, both in Boston.

“At least some of the food companies have a lot to do with making the [obesity] epidemic happen and perpetuating it,” said Richard A. Daynard, a conference organizer who heads the Tobacco Products Liability Project at Northeastern. “That makes it at least worth thinking about whether some of the strategies used with the tobacco industry may be applicable here.”

One of the conference speakers will be John F. Banzhaf III, a George Washington University law professor whose students filed a class-action lawsuit in 2001 against McDonald’s Corp. that accused the company of failing to disclose that French fries prepared in 100% vegetable oil also contained beef tallow. To settle the case, McDonald’s agreed last summer to pay $10 million to various groups representing vegetarians, Hindus and Sikhs and organizations promoting Jewish dietary laws and children’s welfare issues. The plaintiffs had contended that food manufacturers and sellers have an obligation to disclose product information that a reasonable consumer might want to consider.

New York City attorney Samuel Hirsch didn’t get far with the obesity suit filed last July on behalf of a 272-pound New York man who claimed he didn’t know that food at McDonald’s, Wendy’s, Kentucky Fried Chicken and Burger King could be unhealthful.

Assisted by Banzhaf, Hirsch filed a class-action lawsuit in August against McDonald’s on behalf of obese children, charging that McDonald’s meals made them overweight and gave them heart disease, diabetes, high cholesterol and high blood pressure.

McDonald’s attorneys contended that it would be impossible to prove their foods alone caused obesity and that “every reasonable person understands what is in products such as hamburgers and fries, as well as the consequences to one’s waistline, and potentially to one’s health of excessively eating those foods over a prolonged period of time.”

The federal judge who threw out the suit gave Hirsch 30 days to refile the suit to better substantiate his claims about the health dangers of McDonald’s products.

Hirsch filed an amended lawsuit in February, accusing McDonald’s of deceptive advertising, processing and sales of burgers, fries, and fish and chicken sandwiches.

Joseph brought his case against Kraft under California laws that permit individuals to sue if products are “not known to be unsafe” by ordinary consumers.

He contends that hardly anyone outside the science world knows trans fats are unhealthful.