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Obesity Litigation: The Next "Tobacco"?

As obesity rates in the United States continue to rise, self-styled consumer rights activists are turning their attention to the manufacturing and marketing practices of the food industry and considering whether litigation can be used to change those practices. Spearheading this effort are two well-known anti-tobacco activists, Professor John Banzhaf of George Washington University's School of Law and Professor Richard Daynard of Northeastern University's School of Law. Both are champions of the use of litigation to effectuate social change. They have already begun to use their broad tobacco litigation experience in the fight against "Big Food" to bring about changes in the production, advertisement, and consumption of food in the United States. This course of action presents a litigation risk for many companies involved in the food industry.

Not surprisingly, the first litigation attacks against "Big Food" came in the form of personal injury lawsuits. For instance, in 2002, there was a well-publicized filing of a lawsuit against McDonald's, in which McDonald's was alleged to have caused the obesity and related health problems of two young customers. The court dismissed the complaint holding that the harm posed by the over-consumption of fast food is common knowledge and that plaintiffs freely chose to consume McDonald's fast food. Perlman v. McDonald's Corp., 237 F. Supp. 2d 512 (S.D.N.Y. 2003). But, the court noted that the complaint might have avoided dismissal had it alleged that the defendant manufactured food in such a way that the consumer could not have appreciated the harm posed by it. If certain undisclosed manufacturing processes or ingredients clouded the awareness of harm posed by certain food, plaintiffs may not be held to have "freely chosen" to eat it. The court was particularly concerned with what it termed "McFrankenstein" creations - food that, through processing, had lost its presumed healthy character. The court commented that a question of fact could exist as to whether a reasonable consumer would know of such changes. It noted that if the plaintiffs were able to flesh out this argument in an amended complaint, they could establish that the dangers of McDonald's products were not commonly well known and McDonald's, therefore, had a duty to inform its customers. The plaintiffs in that case were unable to successfully meet this test, but the court's decision has provided a clear roadmap for future litigation in this general area.

Beyond providing this roadmap, though, the initial round of cases proved that personal injury lawsuits are not likely to succeed against the food industry. Professors Banzhaf and Daynard have themselves noted that this is the primary lesson learned from both tobacco litigation and the McDonald's case. Despite the existence of some science claiming that certain food processing techniques and ingredients increase the "addictiveness" of food, activists view the burden of proving that some particular action of defendants caused the plaintiff to overindulge as too great a hurdle to overcome.

The danger to the food industry now comes in another guise - one which is more likely to show some staying power, at least in the short run. Instead of continuing with personal injury suits, activists will likely look to state consumer protection statutes which empower consumers with the right to bring lawsuits based on unfair or deceptive commercial practices (similar to the lawsuits currently pending against tobacco companies charging that the word "Lights" was misleading). Under this rubric, lawsuits are likely to target supposedly deceptive advertisements emphasizing "low-fat," "high fiber" or "low sodium" foods without disclosing the actual high calorie or sugar counts of those foods. Activists may also go after manufacturers' efforts to establish brand loyalty in children, with suits against supposedly unfair/deceptive advertisement or against "pouring rights" contracts that split school vending machine profits with school systems thus "unfairly" distributing "non-nutritious" products to a captive market.

Lawsuits brought under state consumer protection laws would present a number of significant advantages to the plaintiffs. First, those statutes allow plaintiffs to sue for purely economic injuries - such as refund of the purchase price - which is much easier to prove than establishing a causal connection to some personal injury. Those statutes also generally permit awards of multiple and/or statutory damages. Second, many of these statutes do not require that the consumers prove they "relied" on the statement to the detriment: it may be enough that the consumers were simply the recipient of a statement that was false or deceptive. Third, to the extent that individualized proof, like reliance on the statement, is not required by the relevant consumer protection statute, plaintiffs are more likely to succeed in having a class action certified than they would in a personal injury suit.

While some legal pundits discount the threat posed by obesity litigation against the food industry, lawsuits against the tobacco industry were also once considered outlandish. Recent surveys show that the same percentage of potential jurors side with plaintiffs against "Big Food" as those who side with plaintiffs against "Big Tobacco" - without having heard any evidence of malfeasance by the food industry. Additionally, there have already been four partially successful outcomes in 10 lawsuits brought against "Big Food:" McDonald's settled an ingredient mislabeling case for $12 million; the maker of a snack food settled a calorie mislabeling case for $4 million; Kraft voluntarily removed trans fat from its Oreo cookies; and the New York School system removed soda and snack machines from school property.

Congress is attempting to stem a possible tide of such lawsuits through the introduction of a bill banning personal injury obesity lawsuits against the food industry. The House of Representatives passed the bill in March, but the Senate will not likely pass it this year. Similar bills, "Baby McBills," have been introduced in over 20 state legislatures, and six have been enacted (Arizona, Idaho, Louisiana, South Dakota, Utah, and Washington). None of the bills, however, prohibit the pursuit of lawsuits based on deceptive advertising, nor does any such legislation seem likely.

As Professors Banzhaf and Daynard address plaintiffs lawyers at seminars on "Legal Approaches to the Obesity Epidemic" and claim that they are themselves preparing to file lawsuits this year, many companies are taking protective measures. Full disclosure of nutritional and ingredient information is the most logical first step for a company concerned about its exposure to obesity litigation. Liability insurance and sound risk management planning is also a prudent consideration. A comprehensive evaluation of advertising campaigns would also be a sensible step. However, as experience with the tobacco litigation has shown, there is no foolproof immunization against a determined plaintiffs' bar, so litigation may be inevitable and the cost of "serving one billion."

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