lawsuits than to regulation or other legal efforts. Onecase that got plenty of attention was the class actionfiled this past February—the first lawsuit of its kind—against McDonald’s, on behalf of children who sufferhealth problems as a result of eating McDonald’s food.

Advocacy lawyers like to say that when you can’t leg-islate, litigate. In other words, because the governmentis so beholden to industry that it can’t do a proper job ofprotecting the public through regulation, we are leftwith no other recourse than turning to the court system.

To a large extent, this was certainly true withtobacco. But can the successesof litigation against the tobaccoindustry be repeated with junkfood? Lawyers are going aftereasy targets first: where compa-nies misrepresent their productsby mislabeling or leaving outkey information. But that’s a

far cry from blamingfast food for thenumerous chron-ic health prob-lems that resultfrom a steady dietof Big Macs andFrench fries. Food is a much

more complex issue to lit-igate. For one, the connection

a newsletter offood politics & analysis

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By Michele Simon, JD, MPH

Over the past few months, major news publica-tions such as the New York Times and FortuneMagazine have run stories featuring several

well-known lawyers who led the charge against thetobacco industry. In June, these same attorneys willhold their “First Annual Conference on LegalApproaches to the Obesity Epidemic.” They make theanalogy to food by pointing to similar nefarious corpo-rate tactics such as mass marketing to children anddeceptive advertising. With thelatest report coming out that themedical costs associated with obe-sity are fast approaching that oftobacco, the media is now payingmore attention to an idea that waslaughed at just a few years ago.And although the attorneys fil-ing actual lawsuits are grab-bing all the headlines,other legal tactics mighthave even greater poten-tial to reign in Big Food.

Litigation:Sue the Bastards

When most peoplethink of lawyers, theythink of litigation. Indeed, themedia tends to pay more attention to

THIS ISSUE• Is Junk Food the Next Tobacco?

• Big Sugar vs WHO• Outrageous 'Flavor Rage'• Paint-by-number Salmon

• California Takes on Obesity in Schools

Center for Informed Food ChoicesVol 2 No 3 • May/June 2003

Is Junk Foodthe Next Tobacco?

Using the Law to Take On Big Food

PO Box 16053Oakland CA 94610

www.informedeating.org

P 510.465.0322F 510.238.8228

info@informedeating.org

pushed for that law, is calling for regulations—both atthe state and federal levels—to require chain restau-rants to list nutrition information on their menus. Sofar, a handful of states have such bills pending.

While the idea of giving consumers more informa-tion sounds appealing, the data on the effectiveness oflabeling is very questionable. Some studies show animpact on people's shopping habits, but others don’t.In either case, nutrition information at a fast food jointis not the same as choosing among cans of soup in thegrocery store. How many people are likely to goacross the street to the Burger King because aWhopper has fewer calories than a Big Mac?

Advocates pushing for nutrition and warning labelsalso should be especially careful about the legal pos-ture the food industry is likely to take in lawsuits.Warning labels on cigarette packages allowed tobaccocompanies to claim that smokers had “assumed therisk,” a legal defense that means you had the relevantinformation and still acted against your own interest.Similarly, food companies who get sued are likely touse nutrition labeling as examples of “full disclosure”that could insulate them from liability.

Local Approaches: Save Our ChildrenAs with litigation, other legal strategies are more

likely to garner more public support where childrenwill directly benefit. For example, many local schooldistricts are attempting to restrict junk foods such assodas and candy. These efforts are gaining momen-tum, with two highly publicized examples being LosAngeles and Oakland Unified School Districts; each

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between tobacco and lung cancer is stronger than theconnection between eating fast food and heart diseaseor other chronic illnesses. Also, most people stick toone brand of cigarettes, so it’s easier to single out onecompany to go after; not true with food. And whilelawyers are likely to claim that junk food has anaddictive quality similar to nicotine, the scientific evi-dence is not in yet and may never be.

Lawsuits that blame food companies for healthproblems also suffer from a huge public relationschallenge: the personal responsibility mantra.Already, industry reaction is playing into Americans’deep-rooted ethic that we are each responsible for ourown choices. That’s why a litigation strategy thatfocuses on how the junk food industry preys on chil-dren is most likely to be successful.

Other problems with litigation include that it comestoo late, after the damage has been done, and it’sextremely costly and time consuming. So is there anyrole for litigation to play? Yes, mainly one of publicrelations: to spark a dialogue about the issues.Litigation also offers the potential to expose evidenceof corporate misconduct, which can be critical to shift-ing public opinion. But litigation isn’t the only way thatnutrition advocates can use the law to their advantage.

Nutrition Labeling:Tell Us We’re Eating Crap

The restaurant industry fought tooth and nail to beexempt from the federal “Nutrition Facts” labelinglaw passed in 1992. Now, the Center for Science in thePublic Interest (CSPI), the same organization that

Editor: Michele Simon • Designer: Ross TurnerInformed Eating is published bi-monthly by the Center for Informed Food Choices (CIFC), a 501(c)(3) non-profit organizationfounded in 2000. CIFC advocates for a diet based on whole, unprocessed, organically-grown, local plant foods, and educatesthe public about the politics of food. Through lectures, workshops, and special events, CIFC brings people together to shareideas and resources to help create a more just, humane and sustainable food system. Please contact us for more information.

Changing the Way People Think About FoodISSN 1542-4413

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a newsletter of food politics & analysis

SUGAR COMPANYTHINGS TO DO1. Plant sugar.2. Harvest sugar.3. Intimidate health organization.

The sugar industry recentlythreatened to bring theWorld Health Organi-

zation (WHO) to its knees bydemanding that Congress end itsfunding unless the WHO scrapsguidelines onhealthy eatingreleased inApril. Thethreat wasdescribed byWHO insid-ers as tanta-mount toblackmail,worse thanany pres-sure exert-ed by the tobaccolobby. Apparently, the SugarAssociation is upset over WHO’srecommendation that sugaraccount for no more than 10 per-cent of a healthy diet, whichactually sounds rather generousto us. The association, togetherwith six other big food industrygroups, has also written to the USHealth and Human Services sec-retary, Tommy Thompson, ask-ing him to use his influence toget the WHO report withdrawn.Stay tuned to see if the BushAdministration will stand up forpublic health or bow to industrypressure.

Source: The Guardian, 4/21/03

If you’ve ever been disappoint-ed by the limited selection ofsoda varieties at self-service

fountains, well, fret no more! Theclever folks at Coca-Cola havecome to the rescue with new“Flavor Rage” packets. Just add

the contents to regularfountain drinks andvoila, instant VanillaCoke! Due out MemorialDay (what a nice way tohonor the dead) and pricedat a cool 29 cents, they look

similar to ketchuppackets. Pepsi previ-

ously tested a similarconcept called “Flavor

Splash” in 2000, but it seemsthe timing wasn’t quite right.

You see, in contrast to the milesof supermarket shelf space dedi-cated to the likes of like Vanillaand Cherry Coke, with sodafountains, the number of spig-ots is limited. As John Sicher,editor and publisher ofBeverage Digest, so deftlyexplains: “A variety of flavorshave become important in car-bonated soft drinks, and this givesconsumers a chance to do theirown soft drink innovation whereit is difficult for the companies todo it.” Just don’t mix up the flavorpackets with the ketchup.

Source: The Atlanta Journal-Constitution, 4/25/03

Three major grocery chainshave announced they willuse labels or signs to inform

shoppers that color additives arefed to farm-raised salmon to makethe flesh pink. You see, farmedsalmon is naturally a grayish color,which is really quite inconvenient.As any respectable industry focusgroup will tell you: most peoplejust don’t like gray food. Free-swimming salmon's brightly col-ored flesh is due to eating krill orother small crustaceans. So syn-thetic pigments are added tofarmed fish food. Not so coinci-dentally, the three chains –Safeway, Albertsons, and Kroger

Co. – are all defendants in class-action lawsuits filed in Aprilaccusing the companies of mis-

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From the Wacky World of Big FoodShut Up andEat More Sugar!

No More BoringFountain Sodas!

A Pigment ofYour Imagination

cocoa antioxidants and promises to“top up your body's defenses.” Noword yet on how the new productline helps defend the body againstobesity.

Source: Just-food.com, 3/7/03

If you thought Baskin-Robbins– the world's largest chain ofice cream specialty stores

with more than 4,700 locationsaround the globe – hadalready saturated the US mar-ket, think again. The compa-ny that boasts serving morethan 150 million ice creamcones each year will open100 new franchises through-out the Northeast by the endof summer. And because twounhealthy chains are betterthan one, they’ll be combinedwith Dunkin’ Donuts storelocations. The parent compa-ny, Allied Domecq QuickService Restaurants, who conve-niently already owns both brands,explains the pairing in itsOrwellian-sounding pressrelease: “Developing multi-branded locations featuringDunkin’ Donuts/Baskin-Robbinscaters to a complementary day-part [sic] concept: breakfast andbetween-meal snacks withDunkin’ Donuts and dessert withBaskin-Robbins. The two brandsunder one roof concept keepscustomer traffic flowing throughmuch of the day.” What won’t beflowing is customers’ bloodthrough their arteries.

Source: PR Newswire, 4/28/03

Don’t you hate it when youpick up your fast foodorder from the drive-

through, take your first bite, andthen out of the blue you have to,you know, shift gears or something,but there’s no place to put downyour Big Mac? Well, rest assured,as carmakers have now taken thecup-holder concept to a whole newlevel. Several of the latest SUVsnow come with tiny tablesdesigned for Big Macs, BiggieFries and Big Kings. For example,

in the new Toyota 4Runner, thefront section of the center armrestflips forward to form a Whopper-size table. “It’s a multipurpose sur-face,” a spokesman for Toyotaexplains, “but we call it the burgertray.” Not to be outdone, Hondahas devised a “sauce managementsystem” for the back seat of itsPilot EX sport utility. A tray in thefold-down center armrest has aminiholder that keeps the dippingsauce for McNuggets at the ready.Let’s hope the next generation ofvehicles comes fully equipped withheart rate monitors.

Source: New York Times,5/02/03

leading consumers about the ori-gin of their salmon by failing todeclare the artificial color.Lawyers say the new move won’tdeter the legal action becausemany consumers were misledbefore the policy change. Even ifcomes too late, the three storesnow vow to inform consumerswith a ‘color-added’ label. Thatshould clear things up nicely. Andwhile we’re at it, let’s also list thedisastrous impact of farmed fishon the environment, shall we?

Source: The Associated Press,5/1/03

Apparently concerned thathealth-conscious con-sumers might start curbing

their chocolate purchases, thecandy manufacturer Mars is nowtouting the alleged antioxidant andheart-health benefits of cocoabeans. The suspiciously-namednew company division, “ThePositive Food Company,” (asopposed to the rest of Mars?) willintroduce several “healthy cocoasnack products,” the first of which,appropriately enough, is the

P o s i t i v e l yH e a l t h yCocoa Drink.

The chilledmilk drinkis sup-posedlyhigh innatural

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EATNRUN

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Positive Food:Positively Unhealthy

Dashboard Dining

Flavors Plus aBakers Dozen Equalsa Triple Bypass

Despite the numerous chal-lenges, many states aroundthe nation are considering

ways to legislate improved nutri-tion, especially in schools. And itshould come as no surprise thatCalifornia is leading the way. Belowis a run-down of the state bills cur-rently pending (at press time) in the2003 legislative session. For moreinformation about the bills’ status,please visit the California FoodPolicy Advocates’ legislative track-ing page at www.cfpa.net.

SB 677 Soda Ban: Prohibits thesale of carbonated beverages inschools and permits only the saleof specified healthy beverages, tobe phased in over time.

SB 65 Contracts: Prohibitsschool boards from entering intoexclusive or non-exclusive con-tracts for advertising or the sale ofcarbonated beverages unless a

policy is adopted after a publichearing to ensure that the districthas internal controls in placeregarding the expenditure of pub-lic funds. Also requires schoolboards to provide written notifi-cation to parents about such con-tracts and offer parents the oppor-tunity to comment before enteringinto a contract.

SB 678 Contracts: Addressessale of beverages in vendingmachines on school campuses;requires water to be sold at alllocations where unhealthy bever-ages are sold with a reasonableprice markup; requires vendingmachines to have at least as manyslots for healthy beverages as forunhealthy beverages.

AB 598 Water Fountains:Requires all school buildings thatare modernized to have operablewater fountains.

SB 875 Fresh Produce:Encourages schools and childdevelopment programs to providefresh fruits and vegetables to stu-dents on a daily basis.

ACR 16 Vegetarian Options:Urges the State Departments ofEducation and Health Services todevelop nutritionally sound schoollunch menu plans that would pro-vide daily optional plant-centeredvegetarian school lunches.

AB 391 Cafeterias andGardens: Requires that newlyconstructed schools include amodern food service facility andinstructional garden area.

AB 195 Nutrition Education:Specifies that, as part of a compre-hensive health education programpupils may receive instruction onpreventative health care, includingon related topics such as obesityand diabetes.

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California Legislature Takes onObesity in Schools

passed policies banning thesefoods. While these aren’t laws perse, California and many otherstates around the country alsohave bills pending to limit junkfoods in schools. (See “FightingBack”, p. 5)

In the tobacco arena, local effortsto curb advertising aimed at chil-dren along with zoning restrictionson the sale of tobacco productsnear schools have great potentialwith junk food. Ronald McDonaldis the second most recognized fig-ure among children after SantaClaus. And banning the sale ofsodas in school won’t have asmuch impact if children can walkto the corner store to get their sugarfix. Such efforts, however, face the

formidable distinction that sellingcigarettes to minors is illegal, whileselling junk food is not.

Building a Movement inthe Court of Public Opinion

Other proposed statewide legalstrategies include sales taxes onsodas or junk foods. While so-called “fat taxes” might be anappealing way to raise revenue formuch-needed nutrition education,the long-term consequences of astrategy that relies on the continuedsale of products we are trying todissuade people from purchasingshould be carefully considered.

Probably the biggest asset to thefight against tobacco has been theshift in public perception, both inmaking it less socially acceptable

to smoke, and in making a villainout of the tobacco industry. Thefood industry represents a formida-ble foe, many times larger thantobacco. Changing public percep-tions about eating junk food whilepointing the finger at the foodindustry for contributing to obesityand other health consequences willbe critical and will take time. In themeantime, advocates shouldengage in thoughtful analysis whileencouraging more public discoursearound the pros and cons of variouslegal strategies, especially thosebeyond litigation. The stakes aretoo high to turn back now.

Michele Simon is founder and director of

the Center for Informed Food Choices.

She also happens to be a lawyer.

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Changing the WayPeople Think About Food

PO Box 16053Oakland CA 94610

P 510.465.0322F 510.238.8228

www.informedeating.orginfo@informedeating.org

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