The new battle against fast food has found an important ally in Richard Daynard '67, president of the Tobacco Control Resource Center at Northeastern University School of Law. Yet Daynard thinks that the campaign against obesity will be different from the personal-injury suits that have put the heat on Big Tobacco--and different too from the lawsuit filed against fast-food companies in July claiming they are responsible for people's health problems.
"I'm more interested in pursuing consumer protection suits, rather than the suit that says, 'I ate at McDonald's. I'm sick. They should pay,'" Daynard said. "That involves a lot of leaps that I don't think need to be made. I think it tends to lead people to thinking these cases are frivolous." Instead, he plans to focus on a range of fast-food and packaged-food marketing and labeling practices that he believes are confusing consumers and failing to give them the information they need to make good health decisions.
For example, Daynard would like to see every McDonald's receipt include not only item costs, but caloric and fat content information as well. Companies that manipulate serving sizes to make a bottle of soda look like it has 150 calories instead of 300 should list the nutritional impact of drinking the whole bottle as well, he says. And if a company plans to market something by quoting its health benefits--say, a snack product that has 25 percent of the recommended daily value of vitamin C--it had better also be clear about how much of a day's calories it contains.
Professor W. Kip Viscusi, who has served as a defense expert in tobacco lawsuits, says the public is already aware of the health issues surrounding fast food.
"I don't know anybody who thinks french fries are as nutritious as salad," he said. "If there's any inadequacy in food labeling, I would want the FDA to [improve] that rather than have that emerge through litigation."
Indeed, fast-food restaurants currently post nutrition information on their walls, and packaged foods follow FDA labeling requirements. But as Daynard's team sees it, food labels, which can confuse even the average adult, are often read by children and less-educated consumers, who make up a large segment of fast food's target audience.
Lauren Hash, a 2L who spent most of the summer working with Daynard on tobacco issues, says she has discovered many examples of how labeling and marketing mislead kids and fail to warn parents. "The numbers need to be put into context for those who don't know what they mean," she said. "For instance, that supersize meal is almost your entire daily allotment of calories and over your daily allotment of fat." Hash says she and Daynard are also pursuing the concept of product warning labels, similar to those used on tobacco products, which might caution consumers about risks such as obesity, heart disease, and cancer.
Take a close enough look, Daynard says, and Ronald McDonald starts to look like Joe Camel: "When you're marketing to kids, you're marketing to the most vulnerable portion of the population. They're obviously using irrational cues to get kids to buy products that they know are going to tend to lead them toward a lifetime of overeating and weight gain." One particular area Daynard hopes to focus on is school districts that put snack vending machines in their halls--a practice that he says violates a duty of care the districts have to their pupils.
Daynard acknowledges that government--and not the plaintiffs' bar--would be a far more effective agent for such changes as standardization of labeling and portion sizes. But until those changes occur, he and a host of plaintiffs' lawyers are planning a broad-based, nationwide campaign.
For the longtime antitobacco advocate, the fast-food fight appears easier to win than the tobacco suits did when they began. "With food, the healthy amount to consume is a moderate amount. With tobacco, the healthy amount is zero," Daynard said. "This industry can clean up its act and still make a lot of money. It's unlike the tobacco companies, who are sort of permanent enemies of the public."
And while Daynard recognizes the differences between Big Food and Big Tobacco, he also points to some similarities: "As I begin to get into debates with them, some of the food people begin to sound a lot like the tobacco people, talking about personal responsibility, personal choice, and so on. But if they're not giving you the information, how do you exercise your personal responsibility?"
--Jonas Blank '04
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