The parties to obesity-related litigation, brought on behalf of several teenagers against fast-food giant McDonald’s Corp. in 2002, have filed a stipulation of voluntary dismissal with prejudice. Pelman v. McDonald’s Corp., No. 02-7821 (U.S. Dist. Ct., S.D.N.Y., stipulation filed February 25, 2011). The action followed entry of an order in December 2010 scheduling pre-trial discovery and motions filing and briefing for the individual claims remaining in this putative class action. A court refused to certify the action as a class in October.
Pelman was closely watched by industry and consumer advocates as it made several trips before the Second Circuit Court of Appeals that ultimately narrowed the issues for trial. It was expected to be ground-breaking litigation that would allow access to industry documents which plaintiffs’ interests believed could be used to bring a flood of litigation against companies they blame for the nation’s increasing incidence of obesity. The experience of litigators opposing cigarette manufacturers was cited as the standard for food-related lawsuits.
Yet, the only claims that would have gone to trial in Pelman were allegations that the teenagers’ obesity-related health problems were caused by misleading advertisements which led them to believe that fast food could be consumed daily without any adverse health effects. The plaintiffs also alleged that the company failed to disclose that some product ingredients and processing were “substantially less healthy than were represented” and that its nutritional brochures and information materials were not readily available in company restaurants.
In the years since Pelman was filed and became mired in a number of legal roadblocks, consumer advocates have explored various options for addressing the rising incidence of obesity in the United States. They quickly realized that it would be difficult, if not impossible, to blame a single restaurant chain or food item or ingredient for individual problems with excess weight. So they began to focus instead on a wide-ranging agenda that includes regulating school lunch programs and vending machines, zoning to address urban food deserts, increasing taxes on soft drinks, changing agricultural subsidies, placing restrictions on youth marketing, and mandating certain content on food labels and restaurant menu boards.
Most recently, a lawsuit seeking to force McDonald’s to stop putting toys in its children’s Happy Meals® and the passage of local laws to the same effect have been the advocacy tools of choice, but others are also on the horizon. Some believe that research into “obesegens,” those chemicals found in food packaging or the environment and thought to disrupt metabolism, energy balance and appetite regulation, could hold the key to successful obesity intervention. Others, such as the Public Health Advocacy Institute (PHAI), are looking at state consumer protection laws as a means to protect consumers and children from “junk food marketing.”
According to PHAI Executive Director Mark Gottlieb, the organization published the compendium of state laws to encourage public health organizations to file lawsuits targeting the food industry’s marketing practices. Gottlieb and Stephen Gardner, director of litigation for the Center for Science in the Public Interest, recently discussed the future of obesity litigation during a panel discussion available for viewing on C-SPAN.
Part of their discussion included mention of lawsuits against the tobacco industry that resulted in large damage awards. The comparisons to tobacco are pervasive in obesity literature, and employees now opposing employment policies that prohibit companies from hiring smokers are wondering whether future policies will target other off-the-clock behaviors, such as drinking, consuming foods of minimal nutritional value or engaging in sex. See The New York Times, February 10, 2011.
Meanwhile, legislation that would immunize food companies from liability for obesity or obesity-related health conditions, referred to in the press as “Cheeseburger Bills,” are currently in effect in about half the states, and a renewed effort is underway to introduce and pass them in additional states. For example, the Minnesota Legislature is currently considering H.F. 264, a bill intended to protect food manufacturers from frivolous lawsuits. With Republicans controlling the House and Senate in Minnesota, the prospects for passage of the bill, introduced repeatedly since 2004, are reportedly considered good. See St. Cloud Times, February 6, 2011.
It can be anticipated that initiatives, such as first lady Michelle Obama’s “Let’s Move” campaign, and research on obesity prevalence showing that more than one-third of adults in the United States are obese will continue to preoccupy advocates and litigators in coming years. With the World Health Organization planning to discuss restrictions on marketing foods of poor nutritional quality to children to address a “fat tsunami” when heads of state meet at U.N. headquarters in September 2011, the spotlight will likely be on food industry practices and their purported relationship to obesity in the near term.