Legislating Obesity

It is still a little unclear as to which metaphor is best suited to describe the food industry's role in what is currently being billed as our national obesity epidemic.   Should we liken it to the "chicken-or-the-egg" debate and argue the finer points of which came first, the food manufacturer's right to manufacture or the consumer's right for protection? Or should we tread lightly -- or not at all -- for fear of triggering a virtual -- or real -- explosion in what has become a minefield of hotly contested ground?

To date, 10 lawsuits have been filed against food companies or restaurants alleging that they caused plaintiffs' obesity problems. Five suits have been successful. In an effort to halt more lawsuits, the U.S. House of Representatives and scores of state assemblies have passed legislation -- humorously dubbed "Cheeseburger Bills" -- to help stem the tide of what could possibly be a river of blood. The outcome of this battle is blurry, even to the best-informed prognosticator, since only recently have food manufacturers fortified their redoubts and plaintiffs' attorneys sharpened their swords.

Warfare analogies aside, the question that really deserves a calm, patient answer is whether or not legislation is the best way to ameliorate what is essentially a public health crisis. Is such a personal, and essential, decision like food consumption (or the freedom to consume) something that should be legislated?

For those not up to speed on this issue, the current lawsuits surrounding the obesity epidemic have a precedent in the legal war waged against tobacco companies. Throughout the 1990s, a relentless onslaught against Big Tobacco forced tobacco companies to disclose reams of incriminating information that aided lawyers in forcing conglomerates to dole out significant sums in retributions and to form antismoking foundations that discourage tobacco use (e.g., The American Legacy Foundation, Washington, D.C.).

Since Big Tobacco was left to nurse its wounds, those involved with public-interest law began searching for a new windmill at which to tilt. Triggered by the Surgeon General's 2001 report estimating that, in 2000, obesity-related conditions killed about 300,000 people and cost the American economy about $117 billion, a new windmill appeared. The selection of obesity as the "new tobacco" was only fortified by a 2004 report posted by the Atlanta-based Centers for Disease Control and Prevention (CDC) upping the 2000 obesity-related death figure to 400,000, only 35,000 deaths behind the No. 1 killer in America: smoking.

The plaintiff's bar started their charge in 2002 when an obese man, who had numerous health problems and had been regularly eating fast food since the 1950s, filed a suit against the industry in general -- McDonald's Corporation, Oak Brook, IL; Burger King Corporation, Miami; Wendy's International, Dublin, OH; and KFC Corporation, Louisville, KY, were all cited in the case. However, the case faltered and eventually faded into obscurity.

Then, in 2003, the plaintiff's bar fired its first significant volley against the food industry when a case was brought against McDonald's, alleging that its food was the cause of the weight problems of three New York teenagers. The fact that the plaintiffs were minors was no accident as it was the lawyer's intent to suggest that since a large portion of fast-food advertising is geared toward unsuspecting adolescents, fast-food companies should pay for their predatory tactics. While this suit was dismissed, it did provide a roadmap for subsequent suits.

Granted, this case was geared toward the fast-food industry and not food manufacturers. However, it still gave food manufacturers pause, especially since a few months after the McDonald's suit was tossed, a suit was threatened and then dropped against Kraft Foods, Northfield, IL, concerning the trans fat content of Oreo cookies.

As Scott Riehl, vice president of governmental affairs for the National Food Processors Association (NFPA), Washington, D.C., notes, "While the food-processing industry is not the lowest fruit hanging on the tree, we're still fruit on the tree, and if (lawyers) are going to sue the fast-food industry, it would be very foolish of us to think when they're done suing the fast-food industry that they're not going to look up the tree."

The answer to the question of whether or not legislation is the best way to deal with our national obesity problem is largely academic. Hours could be spent building castles in the sky, but the truth is that if large sums of money are at stake (they are), litigation will continue. If something isn't put in place to stop the litigation -- i.e., legislation -- the country will never be forced to deal with the problem on its own, personal terms. So the question is, really, what legislation is best suited to the cause? Should the legislation ostensibly act to protect the food manufacturer or the consumer?

Both sides openly admit that the current legislation being drafted nationally and intrastate is narrow. In a sense, this is good news for all concerned. In the case of the food manufacturer, it sets the stage to let existing laws, such as good manufacturing practices and truth-in-labeling laws, stand on their own. For the public-interest lawyers, it provides an avenue by which they can target aspects of the food industry (fast food or otherwise) that aren't beneficial to building a strong and healthy nation, namely the targeting of minors by food companies to entice them to eat too much fattening food.

In reference to H.R. 339, the "Personal Responsibility in Food Consumption Act," Riehl noted that, "exemptions in the model legislation exist to protect legitimate causes of action in their ability to move forward. And what we consider to be legitimate causes of action are if a product is adulterated in any way and if there's been a material violation of any state or federal statute in producing a product. Those in the industry wanted to make sure that those were carved out so that we were going before the legislators around the country with clean hands and we're saying, 'Look, very clearly we only want protection from these frivolous lawsuits, and we want to make sure that the legitimate causes of action are preserved.'"

John Banzhaf, professor of public-interest law at George Washington University in Washington, D.C., a stalwart behind the legal fight against Big Tobacco and now the champion of many obesity suits, heralds the fact that most of the current legislation wouldn't stop the litigation brought before courts. The success of some of these suits would help pave the way for more legislation aimed at eliminating specific causes of our obesity problem, especially in minors.

"We have a growing number of bills that ... (are) aimed at what they call the 'Coke-for-Kickbacks' contracts where Coke or Pepsi buy their way into a school with the arrangement of kickbacks for every sugary soft drink sold," says Banzhaf. "There are a number of bills aimed at the very poor school lunchrooms that are usually filled with fat and calories and so on. There are proposals for several different kinds of what we call a 'fat tax.' And there are probably others that are beginning to float around. This is again pretty standard. What happens is, once you begin to get enough public interest, politicians start looking around and they start coming up with new ideas for legislation to deal with the problem."

Recent examples of this action can be seen in the Los Angeles Unified School District where a ban on soda and high-fat snacks went into effect at the beginning of the 2002 school year. In April of 2004, Chicago Public Schools did the same and schools in New Haven, CT, will follow suit by fall.

While both sides may disagree on the type of legislation that is needed to deal with the food industry's culpability in U.S. obesity levels, they do agree on one point: Consumer education is the only thing that will solve the problem. But should this, too, be legislated?

"The idea that somehow we are going to run an educational campaign and everybody is going to get personal responsibility really is not a very effective way of doing things," says Banzhaf. "On the other hand, there are educational campaigns that could be tremendously effective, except we don't ordinarily think of them as educational campaigns. For example, PepsiCo, I'm told, is the largest manufacturer of snack foods, and they are beginning to warn people, or issue health advisories, suggesting to people that they should eat snack foods only occasionally; you shouldn't eat snack foods frequently. That is a form of educational campaign that would work."

Whether or not it would work, it is still the contention of the NFPA that existing labeling is sufficient for educating consumers, and if additional education is required, it can be achieved via volunteer outreach programs, not additional labeling.

"One of the most powerful tools for consumer education already exists and that is the nutrition labeling on food packaging," says Timothy Willard, vice president of communications for NFPA. "Our focus here at the National Food Processors has been particularly on seeking opportunities to partner with all stakeholders, and that's government, the public-health community and the food industry itself. We could find ways to work together on consumer education and outreach activities related to getting across information on how to use this information to make correct food choices for individual consumers."

According to Cindy Moore, M.S. R.D., spokesperson for the Chicago-based American Dietetic Association: "Really, when you talk about the obesity issue, it's very much a personal and individual issue. People decide every day, and several times a day, what to put into their mouths, what to select to eat, when to stop. So it doesn't seem like it makes a lot of sense to put blame on other institutions, organizations, businesses."

The bottom line is that not only is our obesity problem not going away, it's in our face. Before the problem is mitigated, there will assuredly be many more lawsuits, much more legislation (higher insurance premiums for the obese?), and certainly a lot of debate. But food manufacturers, separate from restaurant chains, know their ground.

"We could sit back and do nothing," says Riehl. "And while each of these cases has been dismissed as frivolous -- we believe they are frivolous -- it could cost up to a half a million dollars to get to the point where you're filing your motion to dismiss and having that decided upon ... So, again, we could have sat back and waited until the industry had to respond to frivolous suit after frivolous suit after frivolous suit, or we could draw a line in the sand and say that we don't think this is proper, and the American people have said it's not proper.

"A very simplistic analysis is, if a company is making or selling product in compliance with all state and local laws and regulations, they will not be held liable for obesity-related lawsuits," continues Riehl. "That type of legislation has been introduced in 25 states since the beginning of January this year, has been signed by six governors, and is about to be signed by two more governors. And (on) every house and senate chamber and floor it has been voted on, it has not been a close vote."

The battlefield has been chosen and the armies are in place. We can only hope that a peaceful agreement on what is right and rational will be reached.

Steven Luff is a Los Angeles-based food and restaurant writer specializing in organic and natural foods. He has worked for a number of years as a bread baker and appreciates the complexities of the food industry from company management to end product. He has written numerous articles regarding the medicinal qualities of food and the importance of wholesome ingredients.

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