Supersize Me by Morgan Spurlock

Fighting Obesity in the Courts

Super-Size Me

Legal Issues 101

Fighting Obesity in the Courts

The 'obesity epidemic' has garnered much attention by the news media and western governments over the past decade. Their concern is well founded, because there has been a three-fold increase in the prevalence of childhood obesity in the United States since 1980 (reviewed by Gleason and Dodd S118). According to the results of a survey conducted in 2009 by the Centers for Disease Control and Prevention (CDC) approximately 12.0% and 15.8% of all school-aged children were judged to be either obese or overweight, respectively ("Surveillance Summaries, 28). That's close to 30% of all K-12 students in the United States having a weight problem. Should a weight problem become entrenched in that child's life, their academic performance will suffer and they are at an increased risk for developing significant mental and physical health problems as adults (reviewed by Gleason and Dodd S118). The future costs of this epidemic to western societies could be staggering.

Many theories have been proposed to explain the epidemic rise in overweight school children, including a sedentary lifestyle due to television watching and electronics gaming, too much sugar and saturated fats, aggressive marketing of junk food to children, a lack food labeling guidelines that help children and adults make informed dietary choices, oversized portions, and the absence of a nutritional education (CDC "Overweight and Obesity"). Parents and children alike are thus faced with a culture that seems to encourage childhood obesity, so it should come as no surprise that some parents and their attorneys are fighting back through lawsuits alleging fast food restaurants, like McDonalds, have engaged in misleading and false marketing practices that contribute directly to the childhood obesity problem.

2. Suing "Big Food"

The attacks against fast food restaurants have in part been modeled on how attorneys and state's attorney generals went after Big Tobacco (reviewed by Robinson, Bloom, and Lurie). The Big Tobacco lawsuits were based on decades of deceptive marketing practices and the targeting of vulnerable children. The success of these lawsuits was helped by the plaintiffs' ability to show nicotine is addictive and that tobacco companies deliberately increased the levels of nicotine in cigarettes. By the time the lawsuits were filed on behalf of American smokers, the public had become well aware of how unethical Big Tobacco had behaved and were supportive of such lawsuits.

Finding the boundary between personal and corporate responsibility therefore seems to depend primarily on the court of public opinion, especially since the public serves on juries. Americans in general seem to be quite averse to giving up any of their freedoms, including being able to choose what to eat or smoke. On the other hand, if a corporation makes a claim about one of its products that is patently false, as Big Tobacco had done, and this leads directly to a specific harm, then the American public's sense of fair play seems to override any concern about protecting their freedoms.

3. Did McDonald's violate the American Sense of Fair Play?

Despite several attempts to use the Big Tobacco model for pushing fast food restaurants to become better corporate citizens, only one case has ever made it far enough to have warranted a judicial decision (reviewed by Robinson, Bloom, and Lurie). The plaintiffs in Pelman vs. McDonald's Corporation alleged that McDonald's engaged in deceptive advertising that led them to consume McDonald's products frequently enough that obesity resulted. These allegations never survived trial court proceedings, primarily because the plaintiffs couldn't produce any advertising that showed deliberate deception.

The attorneys that were successful in bringing suits against Big Tobacco claimed that it wouldn't have been possible without an intense campaign to educate the public about the unethical and illegal activities that Big Tobacco had engaged in. The trial court in Pelman vs. McDonald's Corporation stated that it is common knowledge that fast food is unhealthy, therefore proving deception based on this alone is insufficient to bring suit. At least for adults, the bar for proving that a fast food chain has made deceptive claims regarding how healthy their cheeseburgers and fries are has been set very high.

No one who has spent any time in an American fast food restaurant could claim that these establishments don't directly market their products to children of all ages. The Pelman vs. McDonald's Corporation lawsuit is on behalf of obese children and their parents. The American public seems prone to being more protective when it comes to children and other vulnerable demographics, so their sense of fair play would be triggered more easily by such deceptive advertising practices. Still, for kids to be able to make a purchase in a fast food restaurant they tend to require their parent's permission and money. Parents, not corporations, are therefore primarily responsible for protecting their children from consuming too much fast food. The encroachment of fast food into and around schools may be a different matter though, because parental control is significantly diminished in that environment.

Unless the plaintiffs in the 'Big Food' lawsuits can show deliberate and deceptive advertising practices that violate the American public's sense of fair play, or a whistleblower emerges that claims 'Big Food' has engaged in unethical practices that increase the addictive nature of fast food, it's unlikely that these lawsuits will go anywhere.

4. Rushing to the Aid of 'Big Food'

Worried that Americans would seek to blame their obesity-related health problems on fast food chains, rather than accept personal responsibility for their dietary choices, the U.S. House passed a bill in 2005, and again in 2006, to protect these companies from obesity-related lawsuits (CNN). The so-called "cheeseburger bill" has never made it past the U.S. Senate. Unwilling to wait for the U.S. Congress to take action, over 20 states have passed such legislation, but these statutes would have no jurisdiction over federal courts and thus have limited protective value.