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 (S.D.N.Y., stipulation filed February 25, 2011). The action followed entry of an order in December 2010 scheduling pretrial 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 groundbreaking 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.

About The Author

For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.

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