US food merchandisers are on notice they will be sued unless they fully disclose the nutritional content of their products so consumers know what they’re eating. The threat is part of a relatively new movement linked to claims that some fastfoods can act on the brain much as nicotine and heroin, causing consumers to become fastfood addicts, reports James C. Webster.

Advocates of what some consider a frivolous assault are laying out in public the arguments they expect to advance in the courts.

John Banzhaf, a professor of law at the George Washington University Law School in Washington, D.C., is leading the charge against fastfood companies, embracing the claim that much obesity is due to their negligence in laying out their wares in detail.

“I don’t think we can sue people to get them to exercise, but we can do something abut fastfoods,” says Banzhaf, who was a pioneer in litigation that won billions of US dollars in settlements by tobacco manufacturers. Several courts held that cigarette manufacturers for failing to disclose their products’ addictive properties.

He uses much the same argument against fastfoods. “Even if all courts find that the general dangers of eating fatty and calorie-rich foods at fastfood restaurants are likewise common knowledge, liability for causing obesity and its related diseases may nevertheless be premised on the theory that the public is much less aware of the addictive-like effects of many fastfoods than they are of the widely publicised addictive nature of nicotine in cigarettes.”

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Restaurant sector on the defence
The restaurant industry wants to appear dismissive of the movement but nevertheless is mounting a vigorous defence. Steven Anderson, chief executive of the National Restaurant Association, says lawsuits against restaurants give the word “frivolous” a bad name. Banzhaf “might want to sue couch manufacturers” for contributing to “couch potatoes,” he says.

The problem is not restaurants, Anderson counters, but the sedentary lifestyle of many Americans. Restaurants contribute little to people’s diets, he argues, with 76% of all meals eaten at home. Lawsuits are “a distraction” from the real problem – people who do not get enough physical activity, he says. Anderson asserts that the restaurant industry – 870,000 outlets and 11.7 million employees – “has been very proactive” in meeting consumer demand for nutritious menu options.

In a letter in early May, Banzhaf warned Anderson that “it may be appropriate and prudent” for restaurants to consider warnings about possible addictive properties of fastfoods in light of recent research. He cited a paper published recently in New Scientist to link fastfoods with addictive substances and added, “Even if fastfood is not addictive, the lawyers will point out that it is so bad for people’s health that fastfood outlets are in effect selling a hazardous product without providing the health warnings you might reasonably expect such goods to carry.”

The article cited by Banzhaf added, “A restaurant that poisons people by selling food laced with Salmonella is quickly brought to book. Is it less blameworthy to sell food loaded with calories that give people chronic disease?”

Appearing at a conference in Washington, Anderson replied that a restaurant with 15 menu items would have to list millions of nutritional combinations to achieve full disclosure. What is more, he said, most people who eat in restaurants “have a pretty good idea” what they’re eating.

Growing case history of legal battles
Several lawsuits with Banzhaf’s fingerprints have already been filed:

  • A suit against McDonald’s for not disclosing the company cooks its French fries in beef fat resulted in a US$12.5m settlement.
  • A class action suit against a Florida ice cream company, Big Daddy, claiming it falsely advertises ice cream as a diet product but fails to report its true calories and fat content.
  • A suit against Robert’s Gourmet America in New York City for failing to disclose the true calorie and fat content of its Pirate Booty snack chips.
  • A suit against Pizza Hut in Seattle, Washington, for failing to disclose that its Veggie Delight Pizza contained beef fat.
  • Another suit against McDonald’s in New York for contributing to childhood obesity.
  • Yet another against McDonald’s by a man who claims McDonald’s contributed to his obesity.

Banzhaf admits individual suits against restaurants have not been successful and others had stalled in the courts. At the food conference, Banzhaf maintained that lawyers need not prove that fastfood chains are entirely responsible for obesity but simply need to convince a jury that clients’ health problems were not entirely their own fault and that fastfood companies share the blame. If a lawyer could present evidence that food is addictive, however, the job could become a lot easier. “We might even discover that it’s possible to become addicted to the all-American meal of burgers and fries,” he said.

High-fat experiments on rats
There are other examples of research on which he bases his arguments. Physiologist Luciano Rossetti of the Albert Einstein College of Medicine in New York City found that, after 72 hours of a high-fat diet, rats lost almost all ability to respond to a hormone that signals the amount of body fat content and influences food intake. Rosetti says the fatter a person becomes, the more resistant they are to the effects of the hormone. Sarah Leibowitz, a neurobiologist at Rockefeller University in New York City, conducted experiments that, she says, showed fatty foods may reconfigure the body’s hormonal system to want even more fat.

Although he carefully avoided the debate over liability, US Health and Human Services Secretary Tommy Thompson promises the government will encourage lifestyle changes that can reverse an obesity “epidemic that is slowing our nation down.” He says nearly two out of three adults and about 15% of children are overweight or obese, including 23% of Hispanic Americans and 30% of African Americans. Overweight women face significantly increased risks of having babies with birth defects, he says, and the number of overweight children has tripled in two decades.

Were the prospect of multi-million-dollar damage awards and extraordinary legal costs to become more threatening, it is conceivable that food vendors would seek the remedy adopted by the US gun lobby: ask for protective legislation. The US House of Representatives recently passed a bill that removes liability for gun manufacturers for deaths and injuries caused by their products.

James C. Webster, a former assistant secretary of agriculture in the US, is editor of The Webster Agricultural Letter in Washington, D.C.