Dinh Thi Phuong Anh 1

Todays population ageing and life expectancy are increasing; but, with modern times
comes a global threat that is reaching epidemic levels: obesity. The World Health
Organization (WHO) defines obesity as abnormal or excessive fat accumulation that may
impair health. Individuals with a body mass index (BMI) greater than or equal to 30 are
considered obese (World Health Organization, 2015). Causes of obesity mainly revolve
around an excessive intake of foods that are high in fat or an increase in physical inactivity,
both of which can result from environmental and societal changes and lack of supportive
policies in many sectors such as health, agriculture, food processing, marketing, etc.
Obesity is linked to various non-communicable diseases like cardiovascular diseases,
diabetes or cancers. Recent WHO global estimates found that the worldwide prevalence of
obesity has more than doubled between 1980 and 2014. In some European countries as many
as six out of ten adults are now classified as overweight or obese and by 2030 it is predicted
that this could rise to as high as nine out of ten (European Association for the Study of
Obesity, 2015). Studies show that as someones BMI increases, their life expectancy can
shorten by 10 years. Clearly, actions must be taken to combat this plague.
Lawmakers, health groups and consumers are increasingly linking the consumption of
certain food and beverage products with obesity, which has turned the issue into a serious
business concern. How much of this global threat can food and beverage businesses be held
accountable for? How responsible are individuals in preventing their own physical demise?
What changes should be made, by whom and how effective are they? Take at look at the
lawsuit that started it all.
On July 24, 2002, attorney Samuel Hirsch filed a lawsuit on behalf of Caesar Barber,
a then obese fifty-six year-old, against McDonalds Corporation, Burger King Corporation,
Kentucky Fried Chicken Corporation and Wendys International, Inc. Barber complaint that
these fast food chains bore liability for his obesity and other health problems. The suit was
withdrawn as Mr. Hirsch pursued a similar suit on behalf of two obese teenagers and their
parents on August 22, 2002: the Pelman v. McDonalds suit. The Pelman plaintiffs included
several claims and theories, but the core allegation was simple: McDonalds bears liability
for selling products that contributed to their adverse health conditions. The challenge was for
the claims to satisfy some cognizable legal principle, whether common law tort, an implied
contractual relationship, or a consumer fraud statutory basis (Benloulou, 2015). An analysis
of the case and its outcome will provide an understanding of the laws standpoint in the legal
accountability of the food industry in the obesity threat.

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Unlike Barber, the Pelman plaintiffs had previously filed suit against four fast food
chains before withdrawing. They only eventually sued McDonalds, as it would be easier to
show a causal link between their consumption of McDonalds products and their obesity,
while discounting other causes of obesity. The complaint listed five separate causes of action;
first two Counts based on statutory consumer fraud provisions, last three based on common
law tort doctrine. Count III concerned products liability law, while Count IV and V concerned
McDonalds failure to warn of its products unhealthy characteristics and negligence in the
sale of psychologically addictive products.
The complaint may seem like a frivolous misuse of the legal system and negligence of
personal responsibility, but the claims did reveal something about the role of the food
industry: While the average consumer is aware that fast food does not constitute a healthy
diet, he may not be aware that Chicken McNuggets, seemingly a healthier alternative to a
McDonald's hamburger, contain twice the fat per ounce as a hamburger. Arguably,
McDonalds fast food may pose dangers unknown to the average consumer, sounding in
potential negligence and product liability suits involving a duty to warn consumers of
inherent, unknown dangers. In addition, McDonald's advertising campaigns, while not
outright deceptive, have involved dubious messages. While not expressly stating that fast
food is intended to be a healthy part of a daily diet, plaintiffs cited campaigns such as
"McChicken Everyday!" and "Big N'Tasty Everyday!" and a statement on McDonald's
website that reads "McDonalds can be part of any balanced diet and lifestyle" as examples of
deceptive advertisements. McDonald's has advertised that McDonalds shakes contain
"wholesome milk, natural sweeteners, a fluid ounce of flavoring, and stabilizers for
consistency. And that's all," while a typical shake actually contains several additives and
chemical preservatives. Until recently, McDonalds also did not typically provide nutritional
information concerning its products or make its ingredient lists readily available (Mattis,
2014).
The Pelman court ultimately concluded that while there were potential arguments
against McDonalds that might survive a motion to dismiss, the plaintiffs did not specifically
allege sufficient information to sustain a claim of negligence or deceptive advertising, nor
any proofs that alleged negligence or deception by McDonalds caused any injuries. The
testimony of a medical expert would be required to prove that specific instances of
consumption of McDonalds products were the proximate cause of a medical condition, rather
than the countless other possible foods, drinks, environmental conditions, genetic factors, or
lifestyles. The problem of obesity has no single cause. Rather obesity is the result of

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multiple factors acting together over time, including genetic and environmental factors (U.S
Food and Drug Association, 2015). Even upon repleading with more specific claims that
McDonalds described its food as nutritious and lean, stating the it would be easy to
follow USDA and Health & Human Services guidelines for a healthful diet and still enjoy
your meal at McDonalds, the plaintiffs still failed to prove how they relied upon such
advertisements or whether McDonalds products proximately caused their damages. By 2003,
their claims were barred by the statute of limitation.
The view of the law can be represented by the Pelman suits judges statement: If
consumers know [] the potential ill health effects of eating at McDonalds, they cannot
blame McDonalds if they, nonetheless, choose to satiate their appetite with a surfeit of
supersized McDonalds products (Diem, 2015). In response to the onslaught of obesity
lawsuits, 26 American states adopted Commonsense Consumption Acts, known as
cheeseburger bills, to immunize fast-food firms from such lawsuits. The bills also
encourage people to take more responsibility for what they eat. Positive effects on public
health and rises in profitability have been reported in cheeseburger-bill states (C.W, 2015).
Obesity is mainly perceived as an issue related to individual choice.
Even though the law protects them from frivolous suits, food manufacturers are
increasingly being attacked for mislabeling, children marketing and product formulation.
Among many suits that ended up failing, a class action against Tyson Foods, Inc. for labeling
certain brands of chicken as Raised Without Antibiotics was settled for approximately $5
million in 2010 (Nuckols, 2010). These class actions do not allege that obesity is one of the
injuries, even if reducing obesity is one of the goals. Childhood obesity is a particular source
of concern. Obese children can suffer physical and psychological consequences in addition to
future risks. Marketing has been exposed as one of the causal factors in increasing childrens
consumption of manufactured food and beverages. Since the 1970s, marketing to children
and their parents has become a core part of overall marketing strategy. James McNeal writes:
The plain fact of the matter is that businesses have only two major sources of new
customers: either they are switched from competitors, or they are developed from childhood
(McNeal, 1999). The leading products advertised on television are caloric carbonated
beverages, fast-food restaurants, and sweetened cereals. The channels used now spread to the
Internet, digital media and word-of-mouth viral marketing to communicate a wellcoordinated message. The Institute of Medicines report Food Marketing to Children and
Youth: Threat or Opportunity? concluded that Food and beverage marketing practices
geared to children and youth are out of balance with healthful diets and contribute to an

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environment that puts their health at risk (McGinnis, Gootman, & Kraak, 2006). As Mr.
Hirsch said, Young individuals are not in a position to make a choice after the onslaught of
advertising and promotions (Santora, 2002). Toys accompanying food are particularly
criticized. In December 2010, Monet Parham, represented by the Center for Science in the
Public Interest (CPSI), filed a suit in California. They contended that her daughter was
targeted by the distribution of toys in McDonalds Happy Meals, and Parham was unable to
prevent her form consuming the food. The Parham suit was dismissed as the judge saw it as a
matter of parental discipline and personal responsibility (Levine & Baertlein, 2012). Still, it is
increasingly apparent and worrying that children are continually exposed to marketing ruses
like campaigns involving their favorite cartoon characters, or advertisements during popular
childrens shows. McDonalds Happy Meals for children with toys was attacked with San
Francisco and many cities voting to ban selling toys with fast food (Hensley, 2011).
McDonalds has also been pressured to fire clown mascot Ronald McDonald in a campaign
gathering 20,000 supporters in 2011. To battle obesity, some policies have been implemented,
like the Affordable Care Acts menu-labeling provision in 2010 and state efforts to regulate
sugar-sweetened beverages; however, the general approach has been to encourage industry
self-regulation with minimal government oversight.
The food industry, comprising of food companies, trade associations, and industryfunded nonprofit organizations have responded to the growing rates and public criticisms in
many ways. At first, in the early 2000s, complaints against the industry were met with
ridicule. The Center for Consumer Freedom (CCF), a front group funded by the industry,
famously claimed that the obesity epidemic and related health problems were overstated.
After 2006 they stopped using this argument, as the industry started self-regulatory initiatives
to combat obesity and positioned itself as part of the solution. Similarly, in the early 2000s,
restaurants framed obesity as an issue of personal responsibility, but switched to praising the
industry for new self-regulatory programs and its support of the 2010 national menu-labeling
legislation. Clearly public pressure has urged the industry to portray itself differently, and act
differently as obesity has become more than a personal issue.
Consumption trends have changed as awareness has been raised and consumers are
preferring and willing to pay more for healthier products. The possibility of tight regulation
in Europe, such as the 20% tax on sugary drinks (Boseley, 2015), is threatening the industry
with added complexity and costs. Great litigation risks are mounting for the industry as well,
forcing companies to minimize the risks through sound management practices and better
marketing, business and legal strategies.

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Self-Regulatory Initiatives and Changes in Business Strategies
Four main initiatives have been implemented: one addresses beverages and foods in
schools, one deals with menu labeling and two tackles marketing to children. The Alliance for
a Healthier Generation developed School Beverage Guidelines in 2006, in collaboration with
the industry, most notably the top 3 players Coca-Cola, PepsiCo, and Cadbury Schweppes
who control three quarters of the world beverage market. The guidelines include industry
promises to limit portion sizes of beverages and set standards for the caloric and nutritional
content of beverages sold in school. Reportedly, after two years of implementation, beverage
calories have been cut by 58% in school. The evaluation, however, was only undertaken by
parties funded by the industry, therefore leaving much room for doubt.
To tackle labeling, the Smart Choices Program was announced in 2008 to label the
Smart Choices symbol (Fig. 1) on products that meet its nutritional
criteria. Companies are also required to indicate on the front of the
package how many servings are there and the number of calories per
serving. The aim of achieving one unitary labeling system is certainly
ideal, however, Smart Choices has given the label to Froot Loops cereal
and Cracker Jack snack food, all high in sugar. Furthermore, the many
programs can mislead and confuse consumers. Since 2009, FDA has
halted the program to investigate its standards (AP, 2010).
Marketing to children and teenagers is done mostly via the use of

Figure 1 Smart
Choices label

toys (16 percent of total marketing budget), followed by TV and online advertising.
Companies entice children with toys to communicate a message of happiness, rather than
with the food. A major initiative was the 2007 Childrens Food and Beverage Advertising
Initiative (CFBA) guiding what foods may be advertised to children under the age of 12 with
the goal of shifting the mix of advertising messaging to children to encourage healthier
dietary choices and lifestyles. 15 major companies have joined, agreeing to devote no less
than 50% of their child-directed advertising to promoting healthier dietary choices and
lifestyles, to reduce using characters and product placement in games in advertising
unhealthy food. Kraft Foods promises to advertise to children only its Sensible Solutions line;
PepsiCo, only its Smart Spot products. However, the Kraft products advertised actually fail to
qualify as Sensible Solutions, and PepsiCos Gatorade Thirst Quencher qualifies as better
for you because its marketing promotes physical activity, while the beverage actually get all
of its calories from added sugars. Changes have happened in character licensing on foods,
too. In 2006, Disney broke up with McDonalds (Abramowitz, 2006) and in 2009; Disney

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and Nickelodeon discontinued the use of their names and character on packaging for
unhealthy food under their pledge. Although character licensing had decreased, crosspromotions in general had doubled from 2006 to 2008. It is debated that the huge influence
should have been used to gear children toward healthier choices, and that food companies
could simply find other partners.
The industrys self-regulatory efforts may seem like great solutions on the surface.
Results, however, have shown that companies can still maneuver around the weak standards
and deceive consumers, which can damage their own reputation and harm public good. Most
initiatives were implemented involving deceptive science and without authority supervision.
Some positives are still present. A 2010 Yale University Rudd Center for Food Policy
and Obesity (Main, 2010) revealed that only some restaurants (McDonalds, Burger King,
Dairy Queen) market directly to children. Nearly all others offer healthier food on their
menus. In 2014 Subway committed to Michelle Obamas White House Convening on Food
Marketing to Children campaign by introducing Fresh Fit for Kids meals (Office of the First
Lady, 2014). Big cereal companies like Kelloggs, General Mills and Post Foods have begun
making small changes to their products. Kellogg reformulated many recipes, including Fruit
Loops, Apples Jacks and Corn Pops to reduce 1-3 grams of sugar and add fiber. Post Cereal
reduced sugar by about twenty percent (Skidmore, 2009). However such food is still a far cry
from healthy.
Association With a Health Organization or Connotation
The food industry also seeks credibility by teaming with respected partners. One
example is Shaping Americas Youth, a program developed in collaboration with the Office
of the Surgeon general and is sponsored by several major food companies. SAY has received
favorable critique for initiating awareness in American families through civic-engagement
(Koppell, 2010). Kraft Foods and Walmart also sponsored the Salsa Sabor Y Salud Program
in conjunction with National Latino Childrens Institute, which produced positive albeit
limited impacts on Latino children (Denise Huang, 2008). Several companies fund
organizations like the International Life Sciences Institute (ILSI) to conduct marketing and
academic research, as well as holding conferences and symposia to discuss issues and
solutions (such as the Nestle Nutrition Conference). Grants are provided to healthcare
professional organizations, like the American Heart Association, to determine solutions for
obesity through research. Significant changes are yet to be seen, while the public perceives
these collaborations as a cynical way of buying influence and goodwill. Foods mostly

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remain calorie-dense and nutrient-poor (Koplan & Brownell, 2010). The industry also creates
or funds many front groups like the CCF to mimic grassroots support and cushion the blow.
Product Formulation
The food and beverage industry may add vitamins, minerals, or fiber to foods of poor
nutritional quality and promote them as healthy options. Packaging for a sweetened breakfast
cereal claiming the cereal Now Helps Support Your Childs Immunity provides an example
of scientifically dubious industry assertions. Moreover, the industry simply cannot expect that
introducing healthy items into a companys portfolio balances out the effects of promoting
products high in sugar, salt, and fat.
To conclude, the food industry has made some positive changes happen. More
healthful items have been introduced, advertising has somewhat been addressed. Consumers
are now more privy to nutritional information through enhanced labeling and improved
public access on websites and menus. With the advent of technology and heightened
awareness, they have more information about their food than ever before. Despite these
victories, the industry has responded defensively and counterproductively to criticism. Many
health claims remain scientifically dubious and misleading. Lax criteria behind selfregulatory pledges, along with other tactics, have created public mistrust. It has given rise to
public relations liabilities, conflicts of interests and provoked rather than prevent government
intervention. The important thing to realize is: no matter how unfounded and unfair the
industry critics may be, the food and beverage industry itself can play a constructive role in
addressing obesity. If industry is to build public trust, retain self-regulatory authority, keep
government at a respectful distance and develop meaningful public-private partnerships, a
pro-active approach is needed. It should begin really reformulating products, promoting
moderate portion sizes, develop pricing that does not offer minimal marginal costs for more
calories, involving science and act and market ethically to fulfill a long-term strategy for its
business. Things are definitely easier said than done, as businesses have to struggle to balance
between ethics and profits. In addition, even if more healthy options are available, their
affordability to the group of consumers who are already obese is questionable. The most
difficult thing is changing the attitude and preferences of this group (Freedman, 2013). If
most people are to succeed at achieving and maintaining a healthy weight, they need strong
support from the industry and other players. A healthier cultural attitude towards food will
have to be developed, as well as an environment that is more conducive to exercise and
physical activity.

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