Fighting Obesity in the Courts: Fast Food Lawsuits

Introduction: The Childhood Obesity Epidemic

The "obesity epidemic" has garnered much attention from the news media and Western governments over the past decade. Their concern is well founded: 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 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 is close to 30% of all K–12 students in the United States having a weight problem. Should a weight problem become entrenched in a child's life, their academic performance will suffer and they face an increased risk of 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 driven by television watching and electronic gaming, excessive sugar and saturated fat consumption, aggressive marketing of junk food to children, a lack of food-labeling guidelines that help children and adults make informed dietary choices, oversized portions, and the absence of nutritional education (CDC "Overweight and Obesity"). Parents and children alike are therefore 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 that fast food restaurants — like McDonald's — have engaged in misleading and false marketing practices that directly contribute to the childhood obesity problem.

Suing 'Big Food'

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

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 appear quite averse to surrendering personal freedoms, including the freedom 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, the American public's sense of fair play seems to override concerns about protecting individual freedoms.

Did McDonald's Violate the American Sense of Fair Play?

Despite several attempts to use the Big Tobacco model to push fast food restaurants toward better corporate citizenship, only one case has ever advanced far enough to warrant a judicial decision (reviewed by Robinson, Bloom, and Lurie). The plaintiffs in Pelman v. 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 could not produce any advertising that demonstrated deliberate deception.

The attorneys who succeeded in bringing suits against Big Tobacco have noted that such victories would not have been possible without an intense campaign to educate the public about the unethical and illegal activities Big Tobacco had engaged in. The trial court in Pelman v. McDonald's Corporation held that it is common knowledge that fast food is unhealthy, and that proving deception on this basis alone is insufficient to bring suit. At least for adults, the bar for proving that a fast food chain has made deceptive claims about the healthfulness of its products has been set very high.

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

Unless the plaintiffs in "Big Food" lawsuits can demonstrate deliberate and deceptive advertising practices that violate the American public's sense of fair play — or a whistleblower emerges claiming that "Big Food" has engaged in unethical practices that increase the addictive nature of fast food — it is unlikely that these lawsuits will succeed. For a deeper look at how fast food advertising targets children, public health researchers have documented the industry's marketing techniques extensively.

Conclusion

The line between personal and corporate responsibility in the United States depends on the facts presented to the public and juries, and on whether the collective sense of fair play has been violated sufficiently to override the desire to protect personal freedoms. The courts have broadly agreed that the obesity lawsuits have not proven that fast food advertising is deceptive enough to bear responsibility for the obesity epidemic. This will likely remain the status quo for the foreseeable future, unless new and incriminating information comes to light. The hasty legislative reaction to the obesity lawsuits unfortunately revealed who is controlling whom — and it is not the voters.

Works Cited

Centers for Disease Control and Prevention. "Overweight and Obesity: A Growing Problem." cdc.gov. 2011. Web. 9 Sept. 2011.

Centers for Disease Control and Prevention. "Surveillance Summaries: Youth Risk Behavior Surveillance — United States, 2009." Morbidity and Mortality Weekly Report 59.SS-5 (2010): 1–142.

CNN. "Obesity: 'Cheeseburger Bill' Puts Bite on Lawsuits." cnn.com. 20 Oct. 2005. Web. 9 Sept. 2011.

Gleason, Philip M., and Allison Hedley Dodd. "School Breakfast Program but Not School Lunch Program Participation Is Associated with Lower Body Mass Index." Journal of the American Dietetic Association 109.2 (2009): S118–S128.

Robinson, Melissa Grills, Paul N. Bloom, and Nicholas H. Lurie. "Combating Obesity in the Courts: Will Lawsuits Against McDonald's Work?" American Marketing Association 24.2 (Fall 2005): 299–306. Web. 9 Sept. 2011.