Ten years ago, Federal Judge Robert Sweet ruled in the Pelman v. McDonald's Corp. case that the plaintiffs'
complaint failed to prove that McDonald's was responsible for the two teenagers' obesity. Attorney David Wallace
wrote in a recent issue of Product Liability Law and Strategy that given the statistics (1/3 of U.S. adults
and 17% of U.S. children are obese), "the number of potential claimants is staggering." While the original
claims in the Pelman lawsuit may be difficult to prove on causation, specifically linking the consumption of
high-fat, high-salt fast foods directly to the effects of obesity, such as Type 2 diabetes and other cardiovascular
risks, a different claim may be more successful.
Wallace writes that just as a group of lawyers made hundreds of millions of dollars from suing cigarette manufacturers
in the late 1990's on claims that tobacco products were mislabeled, consumer class action suits against
food companies could similarly be filed claiming that food companies mislabeled their products by their heavy
"use of such unhealthy ingredients as sugar, high-fructose corn syrup and trans or saturated fats." Additionally,
food products that promise to be "heart-healthy" or "cholesterol-reducing," could be targeted by seeking economic
damages based upon future health risks (a similar argument was used successfully by many states and
municipalities against tobacco companies).
This argument, according to Wallace, once again pits the American value of "individual responsibility for
personal choices we make" against the risks knowingly accepted by others that results in high costs to health of
society at large, and paid for by all of us, even those committed to a healthy lifestyle. Another legal argument
that may catch on with plaintiffs'lawyers is the addiction theory. Basically, it goes like this: Food can be as
addictive as certain drugs. Again, using the tobacco analogy, Wallace reminds us that plaintiffs in the tobacco
litigation argued that the cigarette was "cynically designed to deliver addictive levels of uicotine to keep people
smoking cigarettes despite the health risks involved." Similarly, in potential food litigation, the "theme will be
that defendants engineered their products to deliver as much sugar and fat as cheaply as possible." Stating it
more bluntly, these foods may "hijack the brain."
Wallace concludes his excellent analysis of the potential for food litigation by stating that as the cost of health
care to states and cities most certainly will increase, state attorneys general could look to the court system, just
as they did with tobacco, "to recover diet-related Medicaid costs associated with the treatment of heart disease,
diabetes and obesity." And, what if, just as in the tobacco litigation, future food litigation uncovers "negative
company documents"? At that point, all bets are off and we will be off to the races with another headlinegrabbing
series of lawsuits questioning the health of anything we eat! Enjoy your Happy Meals, folks!
Feel free to pass this issue of the Goldhaber Warnings Report on to any friend or colleague.
Dr. Gerald M. Goldhaber, the President of Goldhaber Research Associates, LLC, is a nationally recognized expert in the fields of Political Polling and Warning Label Research. His clients include Fortune 500 companies, as well as educational and governmental organizations. He has conducted hundreds of surveys, including political polls for candidates running for U.S Congress, Senate, and President. Dr. Goldhaber also served as a consultant to President Reagan's Private Sector Survey for Cost Control.
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