Unfair Food

Obesity litigation twist


Obese people who blame restaurant chains or other food sellers for making them fat face a daunting obstacle when they try to recover damages in court: They have to show that a particular company is responsible for their obesity. But Richard Daynard, a Northeastern University law professor who runs the Obesity and Law Project at the Public Health Advocacy Institute, thinks he has found a solution: suing food companies under state consumer protection laws, which "avoids complicated causation issues."

In the January issue of the American Journal of Preventive Medicine, Daynard and a co-author note that most of these statutes "do not require a showing that the defendant's misbehavior caused a specific illness." Indeed, "many state consumer protection statutes do not require a showing that individual plaintiffs relied on the [defendant's] misrepresentations."

Shortly after the article appeared, the Center for Science in the Public Interest (CSPI) took Daynard's advice and ran with it, announcing a lawsuit against Kellogg, maker of sugary breakfast cereals and other products the center thinks kids should not be eating, and Viacom, owner of TV channels and cartoon characters used to market "nutritionally poor" food to children. Joined by the Boston-based Campaign for a Commercial-Free Childhood and two parents, CSPI said it planned to seek billions of dollars in damages under a Massachusetts law prohibiting "unfair or deceptive acts or practices."

The lawsuit argues that children "are intrinsically deceived and abused by encouragement to eat unhealthy junk foods" and are therefore injured every time they see an ad for Apple Jacks on Nickelodeon or a box of SpongeBob SquarePants Pop-Tarts in the supermarket. By CSPI's reckoning, each such exposure is worth at least $25 in statutory damages, whether or not parents actually buy the food.