Understanding The Obesity “Epidemic” – Litigation, Self-Regulation & Government Enforcement
By: RICHARD J. WEGENER
March 2008
The U.S. Surgeon General’s Report of 2001 noted that obesity levels in the United States had reached a record high and estimated the annual cost to the U.S. economy at $117 billion in 2000 alone. The Surgeon General described this as an “epidemic of bad eating habits,” while accepting that sedentary lifestyle, too, was also a major contributor to this growing health problem. Those seeking solutions have turned to litigation, industry self-regulation, and government intervention.
Litigation
Food-and-health litigation in the U.S. has accomplished more than is often appreciated. Class actions against McDonald’s initially garnered headlines with an “instant replay” of tobacco litigation styled allegations of physical injury due to failure to warn, youth marketing, “addiction,” etc. A number of other lawsuits have been filed or have settled. More recently, this “first wave” of traditional tort litigation has been replaced by a shift to state consumer fraud statutes, alleging consumers would not have purchased specific foods or beverages had the manufacturer made truthful disclosures to the public.
The fact that little of this litigation has been “won” by plaintiffs misses the point. Successful litigation does not always require a victory in court; litigation can change public perception of an industry and ultimately induce changes in industry practices.
Those bringing these actions claim to act in the “public interest”, but many legislators – actually elected to look after the public interest – disagree. Nearly two dozen states have passed laws aimed at curbing obesity lawsuits, and “common sense consumption” legislation is pending in Congress. Their goal - legislative roadblocks designed to hinder obesity-related product liability litigation.
Industry Self-Regulation
The food industry has been quick to respond to consumer demand for “healthier” products, as well as litigation and regulatory pressures. Recent initiatives – such as the removal or labeling of “trans fats” and the “greening” of fast food restaurant menus mark the industry’s evolution. Marketing initiatives like Kraft Foods’ decision to restrict advertising certain foods to children under 12 years old and General Mill’s decision to convert its cereals to whole grains hint of yet more change to come. But self-regulation is never enough.
Government Enforcement
Many politicians and pundits remain unsatisfied with self-regulation and are hungry for government action. Targets are not limited just to food, beverage and restaurant companies – advertising agencies, the media and the entertainment industry have their critics as well. Eager to act, Congress issued a 2006 mandate that the Federal Trade Commission report on how children and adolescents are targeted by marketers.
The Commission has now taken the extreme step of issuing compulsory requests for information from more than forty food, beverage and fast food restaurant companies. The goal? The FTC seeks a “more complete picture” of these firms’ kid-marketing practices, especially as they relate to the use of “new marketing” methods such as in-store promotions, special events, packaging, internet marketing and product placements in video games, movies, and television programming. Not since the cereal cases disaster in the early 70’s has the Commission teetered so close to demonstrating that, yes, history can repeat itself.
What’s Next?
While the “crystal ball” is hazy, it is reasonable to foresee the FTC’s eventual findings igniting a ‘third wave” of litigation by consumers who have always blamed food marketers for childhood obesity despite the fact that the causes of obesity cannot be assigned to any single factor. As the FTC goes about its work, the political climate will determine to what degree new government imposed solutions will replace self-regulation.