Restaurant obesity liability considered

WASHINGTON, May 8 (UPI) -- Lawyers are beginning to target the restaurant industry to attempt to hold it accountable for the nation's drastic obesity epidemic, legal representatives said Thursday at a food policy meeting.

"We have a new movement," said John Banzhaf, a professor of law at The George Washington University Law School in Washington who helped lead litigation against the tobacco industry. The fight against restaurants, he told the audience at the National Food Policy Conference, has just begun.

"I don't think we can sue people to get them to exercise, but we can do something about fast foods," he said.

Banzhaf said he is not fighting to prevent the right to choose what a person eats. Instead, he is calling on the restaurant industry for full disclosure of all nutritional content of their products so consumers can make informed choices.

Lawsuits currently are underway and Banzhaf said he already has seen some progress. For instance, his lawsuit against McDonald's for not disclosing the company cooks their French fries in beef fat has resulted in a $12.5 million settlement. Other, similar cases with Banzhaf's involvement include:

-- A class-action lawsuit against Big Daddy Ice Cream, claiming the Florida company falsely advertised its ice cream as a diet product and failed to report the product's true calorie and fat content;

-- A lawsuit against Robert's Gourmet America, of New York City, the maker of the snack chips Pirate Booty, for failing to disclose the product's true calorie and fat content;

-- A lawsuit against Pizza Hut in Seattle for failing to disclose its Veggie Delight Pizza contains beef fat,

-- A lawsuit against McDonald's in New York for contributing to childhood obesity, and

-- A lawsuit by a New York City man who sued McDonald's for contributing to his obesity. However, Banzhaf said individual suits against restaurants have not proved successful and this case has stalled.

Banzhaf said there is a "growing proliferation of fast food restaurants with their super-size portions and ubiquitous advertising," and therefore lawyers "will continue to target the deep pockets of the food industry."

Steven Anderson, president and chief executive officer of the National Restaurant Association, said "these lawsuits give 'frivolous' a bad name." Banzhaf "might want to sue couch manufacturers," Anderson said, for contributing to couch potatoes.

The problem is not restaurants, Anderson argued, but the sedentary American lifestyle. Anderson said restaurants only account for a small fraction of people's diets and 76 percent of all meals are consumed at home. The association, which represents 870,000 restaurants and 11.7 million employees "has been very proactive" in meeting consumer demand for nutritious menu options, he said. Anderson called the lawsuits "a distraction" from the real issue, which is adults and children failing to pursue enough physical activity.

Anderson pointed to legislation, pending in Congress, such as the Improved Nutrition and Physical Activity Act, that would call for increased funding for nutrition and fitness programs, including health professional training. However, not everyone agrees new laws are the answer.

"It's overly simplistic and ineffective," said John Cady, president and chief executive officer of the National Food Processors Association. "The 'let's pass a law approach' won't work."

Members of the Bush administration also chimed in.

"All of us need to make sure Americans get safe food and eat it in health proportions and in a healthy environment," said U.S. Department of Health and Human Services Secretary Tommy Thompson.

According to the U.S. Surgeon General's Office, 61 percent of all Americans are either overweight or obese, a major risk factor for diabetes, heart disease and cancer.

Keith Ayoob, a spokesman for the American Dietetic Association and a professor of pediatrics at Albert Einstein College of Medicine in New York City, questioned whether the food industry lawsuit is the right tactic to take in reducing obesity.

"I have a hard time with this one," Ayoob told United Press International. "It's not the same as the tobacco thing. Obesity is a condition of excess and it's cured with balance. People choose to consume food in restaurants, but it's up to each person to decide how much they are willing to eat. You may order a meal that's every large, but that doesn't mean you have to eat it all. That's why God invented the doggie bag."

Suing restaurants could create a slippery slope, Ayoob added. "Where's it going to stop? Should you sue your employer because you're kept too busy to work at the gym? We have a very litigious society. Even if you get them to cough it up, is it going solve our obesity problem? No. I don't think going after restaurants is the answer."