Sunday, December 17, 2006

Fighting obesity through fast food corporate litigation is destined to become another failed public health intervention – Gintas Krisciunas

America has physiologically expanded to epic proportions. An estimated 30% of adults in the United States are obese, and 65% are either overweight or obese.(2) Individuals that are overweight and obese incur a detriment not only to their personal health and lifestyle, but also to our nation’s health care system, a debt that is deferred to every American tax payer. The Center for Disease Control estimated that medical expenditures attributable to overweight and obesity amounted to over $78 billion in 1998, or 9.1% of total US medical expenditures.(1) Historically, numerous public health interventions have attempted to stave off expanding waistlines. Currently, the use of litigation against the fast food industry has become an increasingly popular public health intervention that has gained increasing publicity and popularity, especially among some public health advocacy groups. Pelman v. McDonalds is predicated upon the assumption that fast food corporations are a cause of obesity, and that litigation will allow the general population to become enlightened health food consumers.(8) Inappropriately modeled after tobacco litigation, not only does this approach completely disregard the plethora of social and behavioral factors that influence individual choices and their feasibility, but may also prove detrimental to the war on fat by diverting attention and resources away from public health interventions that appropriately address the fundamental causes of obesity.

Inappropriately Modeling Fast Food Litigation after Tobacco Litigation
After a half a century of litigation against big tobacco corporations that effectively defended their profits and products through “scorched earth” strategies, a process of financially and emotionally wearing down plaintiffs, American consumers and health institutions are finally winning major settlements.(3) The Master Settlement Agreement (MSA) of 1998 resulted in big tobacco companies paying states $10 billion in damages. American citizens harmed by cigarettes are being remunerated, state Medicare and Medicaid programs are receiving compensation, and attorneys are making vast financial gains. Logically, if smoking causes adverse health affects and eating high-fat and high-calorie food causes obesity, and obesity begets adverse health outcomes, why not initiate litigation against fast food corporations modeled after big tobacco? Organizations such as the Public Health Advocacy Institute (PHAI) have made litigation a centerpiece in the crusade against obesity.(5) Alderman and Daynard, who unsurprisingly work for PHAI, published a special article in the American Journal of Preventative Medicine arguing that litigation can “lead to higher prices, decrease consumption, educate the public about the dangers of products, and compel an industry to stop deceptive marketing and misleading public statements.”(3) Realistically however, it is inappropriate to conclude that fast food litigation can successfully emulate tobacco litigation for two important reasons.

Unlike cigarettes, food is not inherently dangerous
One central and inappropriate argument behind fast food litigation that was appropriate and successfully used against big tobacco was that the products being sold are inherently dangerous. There are no known health benefits to smoking, and cigarette smoke contains 4,000 chemicals, 43 of which are known or suspected carcinogens.(5) Approximately 85% of lung cancer cases are directly attributable to smoking cigarettes. While obesity is associated with many adverse health outcomes including hypertension, Type II diabetes, coronary heart disease and stroke, eating a hamburger or French fries is not. Food does not directly cause adverse health outcomes the same way that smoking cigarettes does. There for, the food industry is not selling dangerous products. All food, even high-calorie and high-fat food can be healthy when consumed appropriately. Individuals who make poor choices regarding quantity and nutritional quality of the food they ingest, and who also fail to balance their nutritional consumption with proper lifestyle choices, specifically physical activity, cause their own obesity. In 2000, the CDC Behavioral Risk Factor Surveillance System showed that 26% of adults reported absolutely no physical activity – not even walking – during their spare time.(9) It is important to note that these individual level poor choices are not solely predicated on rational behavior as some public health models – like the health belief model – may suggest. It is a multifaceted, individual and societal level problem, addressed later in this critique. Even if one were to argue that some portion of fast food was unhealthy, such as trans-fats which show some correlation to the increased of heart disease, unlike cigarettes, food menus can change. While there is no current method of making cigarettes and smoking safe or “more healthy” (11), the food industry has the option of introducing lower-calorie menu items, or replacing trans-fats with a healthier alternative. Wendy’s for example, has already eliminated trans-fats from their fries.(12) Finally, unlike cigarettes that are addictive, physiologically forcing people to use a dangerous product even if they choose not to, there is nothing inherently addictive about fat, calories or fast food. After eating fast food even for prolonged times, people are still able to make rational decisions regarding caloric intake, and more importantly, follow through with their decisions thereby avoiding the adverse health outcomes associated with overweight and obesity.(7)

Advertising a burger as delicious is not deceptive marketing or misleading
A second central argument for using litigation against fast food corporations is to inhibit the fast food industry from deceptive marketing strategies and providing consumers with misleading information. These litigious categorizations fall under the consumer protection statutes violated by big tobacco companies.(3) In 1976 Ernest Pepples, Brown & Williamson's Vice President wrote a memo stating that "the smoker of a filter cigarette was getting as much or more nicotine and tar as he would have gotten from a regular cigarette. He had abandoned the regular cigarette, however, on the ground of reduced risk to health."(11) The Pelman v. McDonalds case attempts to exploit the consumer protection statutes by accusing McDonalds of falsely presenting its food as nutritionally beneficial to consumers. No one can deny that fast food corporations are expert advertisers. It has even been shown that people who are exposed to expertly target advertisements show greater preference for the advertised food products than individuals who are unexposed to such media. However, marketing fast food products in a way that makes them attractive and seemingly delicious is not the same as purporting that the food is healthy when it is not. Nor is such advertisement falsely implicating their product as safe when it is indeed harmful. This is not to say that vulnerable populations such as young children are not influenced by provocative advertisement. In a measure of protection, it has been shown that governmental regulation of advertisement locations, especially in schools, has been effective in protecting vulnerable individuals from such media.(10) There fore, arguing the validity of litigation for false advertising appears to be not only unfounded and unnecessary, but ineffective in its ultimate purpose, which is to prevent obesity.

Punishment and Stonewalling
Another lesson from the tobacco litigation era is the power of defensive tactics in response to potential damaging punishments through litigation. Social and economic theory dictates that corporations operate rationally in response to economic incentives. This suggests that a corporation faced with potential revenue loss will attempt to minimize such losses in any way possible. When confronted with lawsuits demanding millions or billions of dollars in damages, it is economically rational for corporations to enact defensive “scorched earth” tactics to protect their current and future assets. It took 50 years of litigation, state involvement as plaintiffs and incriminating industry documents to finally win cases against the tobacco industry. Considering cigarette toxicity and the industry’s deceptive marketing practices, the case against big tobacco is also far more compelling. Most importantly, if the goal of fast food corporation litigation is to address the industry’s promotion of obesity, then the result of any potentially successful litigation must not be solely compensatory remuneration for tangible and intangible costs of adverse health outcomes, but to theoretically impede the spread of the obesity epidemic. This suggests a need for menu reform. However, if fast food corporations are being sued for what is labeled as “dangerous” and unhealthy food, the industry will never change their menus. Doing so may indeed incriminate their current food as being “dangerous” and could subject them to an onslaught of law suits.(11) Litigation in this sense could actually hinder menu reform and the fight against obesity.

The Multifaceted Nature of Obesity
Possibly the biggest flaw in using litigation against fast food corporations to curb the obesity epidemic is the complete disregard of the numerous social and individual level factors that influence the problem. Food high in calories and fat do not cause obesity. Nor do the vendors, restaurants or corporations that sell such food. The fundamental causes of obesity stem from lifestyle choices. While some people may be slightly more susceptible to becoming overweight due to genetic factors, it is the responsibility of the individual to understand how many calories and how much fat they can consume before becoming overweight or obese.(9) A slightly slower metabolism is not an excuse for obesity, and rather, it should become a motivator to live a more active lifestyle. However, there are many factors that influence the feasibility of making appropriate lifestyle choices with regard to proper nutrition and exercise, and many of these factors coincide with socioeconomic status. A single parent working two jobs may not have time to cook meals that are as healthy as those cooked by a middle class or wealthy dual-parent household. The single parent may not even have the time to cook. It has been documented that poor neighborhoods not only contain many fast food restaurants, but also lack grocery stores that stock a variety of healthy produce.(13,14) From personal experience, it is far easier and cheaper to buy two $1 chicken sandwiches from Wendy’s than to spend more time and money searching for produce that needs to be cooked. Those two chicken sandwiches are also far more gastronomically satisfying than a salad that costs two or three times as much, and leaves you feeling hungry an hour later. Litigation does not address why poor neighborhoods do not have the same access to nutritious produce as more affluent communities. It does not address cultural and sub-cultural factors that influence the consumption of fruits and vegetables. The feasibility of making appropriate diet choices also revolves around education, there fore, it remains paramount to present the health implications of a poor diet in a way that is both engaging and culturally / socially relevant for target communities. Obesity is also a problem of feasible lifestyle choices, which can counteract the fattening implications of occasional over consumption of cheap and available fast food. For the affluent, a gym membership is only a credit card swipe away. Affluent communities are safer, and often offer greater access to recreational and outdoor facilities. Even if someone in a poor community wants to go for a run, they may not do so if safety is a problem.(15) Sports equipment and expensive running shoes are far more accessible for the affluent than for those working two minimum wage jobs. Considering the many social and individual level factors that affect obesity, it is evident that engaging in litigation against fast food corporations will solve nothing. By devoting tremendous resources and energy in litigating fast food corporations in the fight against obesity, significant harm will be done by shifting the emphasis and resources away from addressing the actual causes of obesity.

Conclusion and Progressive Suggestions
It is tempting to assume that litigation against fast food corporations to fight obesity can parallel the hard won success against the tobacco industry in the fight against smoking. However, it is important to understand where the parallels end, and to consider the more complex and relevant social and behavioral roots of the problem. Litigation is clearly not the solution. Addressing the underlying issues of socioeconomic status, minimum wage rates, education and social mobility, cultural norms and access to resources which entice and enable healthy individual level decision making is the only way to appropriately address the obesity epidemic. A far more progressive intervention may be to provide fast food corporations with rational economic incentives to change their menus. Let us not waste another half century of time and resources on a misguided crusade against fast food corporations. In the end, litigating fast food corporations has great potential to be frivolous, cumbersome, expensive, and a time consuming venture that ultimately will not solve the problem of obesity. If these lawsuits become more popular, the ultimate result will be nothing but clogged courts and a waste of everyone’s money. (8) The time and money would be far better invested in creating interventions that appropriately address obesity as a function of individual level choices and their feasibility within in an equally important social context.



(3) Alderman, Jess and Richard Daynard. “Applying Lessons from Tobacco Litigation to Obesity Lawsuits”. American Journal of Preventive Medicine. 2006;30(1) p82-88.




(7) Siegel, Michael. “Obesity lawsuits Trying to Follow Tobacco Model.” July 11, 2005.

(8) Warner, Melanie. “The Food Industry Empire Strikes Back.” The New York Times. July 7, 2007.


(10) Story, Mary & Simone French. “Food Advertising and Marketing Directed at Children and Adolescents in the US.” International Jounral of Behavioral Nutrition and Physical Activity. February 10, 2004, 1:3.

(11) Parker-Pope, Tara. “Cigarettes: Anatomy of an Industry from Seed to Smoke.” New York: The New Press, 2001.

(12) Hellmich, Nanci. “Research: Trans-fat adds more pounds than other fat.” USA Today. October 23rd, 2006.

(13) Block, J.P. et al. "Fast Food, Race/Ethnicity, and Income." American Journal of Preventive Medicine. October 2004, Vol. 27, No. 3, pp. 211–217.

(14) Sloane et al. “Improving the nutritional resource environment for healthy living through community-based participatory research.” Journal of General Internal Medicine. July 2003;18:568-575.

(15) Cradock AL, Kamachi I, Colditz GA, Hannon C, et al. “Playground
Safety & Access in Boston Neighborhoods.” American Journal of Preventive Medicine. 2005;28(4):357–363.


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