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America is in the midst of an obesity epidemic. Two-thirds of adults are overweight or obese. The percentage of severely obese people quadrupled between 1986 and 2000. And the percentage of overweight children has more than doubled since the late 1970s. Being overweight is bad enough because of the social stigma and related psychological problems. But it is also a major cause of heart disease, stroke, diabetes, and cancer. According to the surgeon general, obesity kills as many as 300,000 Americans annually. A recent study concluded that America’s weight problem costs taxpayers $39 billion a year through Medicare and Medicaid programs. Politicians of all political stripes are wringing their hands over soaring obesity rates. But when it comes to action, they’re sitting on those same hands. They find some remedies — such as daily physical education in public schools, mass-media healthy-eating campaigns, and networks of biking and hiking paths — too costly. Other approaches offend political allies — such as requiring special logos on the least-healthful foods, taxing high-calorie foods, and bluntly telling consumers that a diet of 1,000-calorie cheeseburgers and 800-calorie Frappuccinos may make them fat. And, of course, politicians of the conservative persuasion reflexively oppose any further regulation of the food (or any other) industry. One measure of the government’s feckless war against obesity is what the top general is saying. Secretary of Health and Human Services Tommy Thompson apparently believes that private jawboning with food companies and handing out awards will solve the problem. He recently told ABC’s Peter Jennings, “Once you start giving out awards for a particular company, a particular fast-food industry recipient or a soft drink, I think the other ones are going to say, ‘You know, I want the award next time, and I’m going to do more to get it.’ I think it’s much better to be on the positive side than the negative side.” (Can you imagine Defense Secretary Donald Rumsfeld saying that the way to fight terrorism is to give awards to the nicest members of the Taliban?) Industry, for its part, argues that obesity is due to inadequate will power. Americans just need to exercise more and eat less, and obesity will vanish. Ah, if it were only so easy. We live in a society predicated on sloth — thanks to cars, phones, and other labor-sparing devices — and gluttony — so many tasty calories for so little money. Junk food tempts us wherever we go: restaurants, vending machines, gas station food marts, shopping center food courts, office parties, school celebrations, and grocery stores. What’s more, we’re bombarded, from childhood on, with advertising for soft drinks, sugary cereals, candy bars, french fries, and other high-calorie, low-nutrition foods. Obesity, like pollution, might be an inevitable consequence of life in a wealthy, modern society. But for the sake of the public’s health, and the national health-care budget, government must develop policies and programs to help prevent obesity and other diet-related health problems. LABEL IT ‘GOOD’ Labels are a good starting point. The Food and Drug Administration and the Department of Agriculture should develop a voluntary labeling program based on a “good food” symbol, similar to a Swedish program. The government would set criteria for various categories of food and then allow companies to use the good-food symbol on qualifying products. In Sweden, for example, breads must be 100 percent whole grain, and milk may not contain more than 1 percent fat. Anyone — a child, a non-English-speaking immigrant, or a harried soccer mom — could easily identify healthy foods just by looking for the symbol. If that’s the carrot, the stick would target major contributors to health problems. Foods high in saturated and trans fats, sodium, or refined sugars could be required to bear a special symbol on their front labels. It would alert shoppers that a food is rich in things that should be consumed less often or in smaller quantities. A third labeling measure would address the fact that Americans are eating almost half their calories outside the home — at restaurants, cafeterias, and vending machines — where there is little or no nutrition information. Chain restaurants could list calories next to each item on menu boards and additional information on printed menus. Is that feasible? Baja Fresh and Olive Garden already provide partial nutrition information for some of their healthier items. Bills to achieve restaurant labeling have been introduced in Congress and a half-dozen state legislatures. DISCOURAGE FAT Food labeling alone, however, will not solve the diet/health problem. It should be supplemented by other measures, such as: • Barring junk-food ads on children’s television. It is simply unfair — both morally and legally — to try to persuade kids to eat foods that, over the long run, are bad for them. • Offering only healthy meals at schools. It is outrageous that educators, in league with soft drink and vending machine companies, encourage children placed in their care for six or more hours a day to eat junk foods. We’re seeing some progress on this front at the state and local level, but Congress is paralyzed by industry lobbyists. • Reducing the amounts of saturated and trans fats in foods. Currently, the USDA limits ground beef and hot dogs to 30 percent fat by weight. That limit should be reduced by at least one fourth. On the trans-fat front, the FDA is requiring better labeling, which will spur some companies to eliminate trans fat from their products. But government can do more. Denmark, for instance, has limited trans fat to 2 percent of a food’s fat content. • Sponsoring mass-media campaigns to encourage people to consume more fruits, vegetables, and whole grains, and less meat, cheese, and soft drinks. Several hundred million dollars a year would help counter industry promotional budgets that are 100 times as large. • Taxing unhealthful foods so as to partially “internalize” their external costs to society. Small taxes would have little effect on sales, but they could still generate substantial revenues earmarked for health programs. For instance, a three-cent-a-can tax on soft drinks would raise enough money to provide every school child with one piece of fruit a day for a year. Taxes on the fat content of milk or meat, or on the trans-fat content of shortening, could raise additional sums. SUE THE JUNK PUSHERS Obviously, proposals such as those will not fly through regulatory agencies or Congress. That’s why some health experts have begun to consider litigation. Though not popular among potential defendants, lawsuits can be a powerful engine for change. In the past few years, litigation has focused on deceptive labeling or advertising by such companies as Smucker’s, Gerber, Pirate’s Booty, and others. One suit targeted McDonald’s for falsely advertising that it used 100 percent vegetable oil (the oil actually contained small amounts of beef-fat flavoring). McDonald’s settled that dispute for $12.5 million, including $10 million in cy-pres awards to groups focusing on vegetarianism, children’s nutrition, and the like. The size of that settlement really grabbed the attention of Wall Street. But most suits that focus on deceptive marketing practices won’t have much of a health benefit. Other suits might. • Two decades ago a consumer advocacy group sued General Foods, Safeway, and two ad agencies on grounds of false advertising, unfair marketing, and tort-fraud theories for undermining children’s health by advertising high-sugar cereals on child-oriented TV shows. The California Supreme Court in Committee on Children’s Television Inc. v. General Foods Corp. (1983) decided questions of both standing and validity of cause of action in the plaintiffs’ favor. That led to a settlement, with General Foods providing $2 million to establish an organization concerned about children’s nutrition. Given that the Federal Trade Commission and Congress are not about to take on this issue, a trial lawyer or state attorney general should consider using the General Foods case as a road map for targeting junk-food ads aimed at children. • Last May, a California attorney sued Kraft Foods for not declaring on the label that Oreo cookies contained trans fat. The widely publicized case of Bantransfats.com Inc. v. Kraft Foods spurred the company to agree to try to reduce or eliminate the trans fat. (The lawyer then withdrew his suit.) Other lawyers might focus on chain restaurants, which don’t provide nutrition or ingredient labeling, for selling foods high in trans fat. Aren’t those restaurants derelict for marketing unnecessarily dangerous foods? (Less-harmful substitutes are available for most uses of shortenings that contain trans fat.) • The single most controversial suit — and the only “obesity lawsuit” — was filed on behalf of New York City teen-agers who charged that a steady diet of McDonald’s foods caused them to become obese. The case of Pelman v. McDonald’s raised the possibility that restaurants — and other companies — could be sued for billions of dollars for marketing high-calorie products, like double jumbo bacon burgers and quart-sized Cokes. The plaintiffs ultimately lost in the federal trial court (the case is on appeal), but not without significant repercussions. The restaurant industry’s public relations people first attacked the suit as frivolous. Then — in an “unrelated” development, of course — McDonald’s and some other companies introduced several relatively healthful products, such as salads and chicken dishes. Au Bon Pain eliminated trans fat from its muffins. COUNTERATTACK But industry’s most aggressive response has been to advocate legislation to prohibit lawsuits arguing that certain foods cause obesity or illnesses resulting from obesity. Louisiana has passed such a law, and California, Colorado, Florida, Ohio, Washington, and other states are considering similar bills. A South Dakota bill, which has since been amended, would have barred suits based not only on obesity, but also on heart disease, high blood pressure, mad cow disease, and other health problems. In Congress, the House Judiciary Committee has approved a bill, H.R. 339, that would ban “frivolous” obesity suits in federal and state courts. However, most of these bills would still permit suits based on state unfair-marketing and other statutes. Though the food industry opposes health litigation attacking its members, some companies are eager litigators themselves. In 1990, McDonald’s sued two British activists who had leafleted outside its restaurants. Last year, the company sued an Italian food critic for $25 million for saying that McDonald’s burgers tasted like rubber. In the United States, Monsanto has gone to court to stop a dairy whose milk labels stated that the dairy’s milk was produced without a genetically engineered hormone. What’s good for the goose is apparently not good for the gander. Time will tell whether litigation makes a dent in deceptive marketing practices, obesity, or heart disease. But in the short term, the handful of lawsuits has already spurred some food companies to improve their products. Over the longer term, litigation may be useful, but it’s not the whole solution to diet-related health problems. Government must use its unique resources to help Americans eat a healthier diet and exercise more. Michael F. Jacobson, a scientist, is the executive director of the Center for Science in the Public Interest, a nonprofit health advocacy group in Washington, D.C. He can be reached at [email protected]. Attorneys have used information from several CSPI projects as the basis of litigation.

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