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The much hyped obesity suit that two overweight teenagers brought against McDonald’s Corporation last year was dismissed not once but twice. So why did more than 50 attorneys for the food industry � both in-house and outside counsel � gather at a January conference to discuss the threat of future litigation? It seems that in the war on “Big Food,” the industry won the opening battle but is bracing itself for a longer struggle. So far a handful of other suits have met with some success. A group called BanTransFats.com, Inc., withdrew its action against Kraft Foods North America, Inc., after the company agreed to rid its Oreos of the much maligned trans fatty acids. Robert’s American Gourmet Food, Inc., settled a claim that it misstated the fat and calorie content for Pirate’s Booty, which it markets as a health-oriented snack food. The judge who gave McDonald’s its pair of victories is also responsible for the concern among defense attorneys. When Manhattan federal judge Robert Sweet first dismissed Pelman v. McDonald’s in January 2003, he not only gave the plaintiffs leave to file an amended case, but also provided some important hints about what arguments might pass muster with a court. The teenagers, represented by Manhattan solo practitioner Samuel Hirsch, failed to meet these criteria, and Sweet dismissed their amended complaint in September. (Hirsch has since taken the teens’ case to the U.S. Court of Appeals for the Second Circuit.) However, plaintiffs attorneys still think Sweet’s initial ruling offers valuable clues on how to file a successful food suit. “There were good things in the first opinion,” says Richard Daynard of Northeastern University School of Law. As an example, he notes that the judge “properly call[ed] a chicken McNugget a chicken McFrankenstein,” referrring to the product’s mix of ingredients. One of the law professors who helped bring tobacco to the litigation forefront, Daynard is now attempting to do the same with food. McNuggets also come under fire from another plaintiffs-side professor, John Banzhaf of George Washington University Law School. Many people think that McNuggets are healthier than a hamburger, which isn’t true. That fact, Banzhaf says, could lead to a failure-to-disclose argument against McDonald’s. At the January conference, “Preventing and Defending Obesity Claims,” doctors, lawyers, and professors discussed everything from the problems of marketing sugary cereal on Saturday-morning children’s shows to whether food could rightly be considered addictive for purposes of litigation. Defense lawyers say they were primed for food suits even before plaintiffs lawyer Hirsch took aim at the Golden Arches. “As a defense lawyer, you always have your feelers out for what might be the next mass tort,” says Christopher Cole, of counsel in the D.C. office of Paul, Hastings, Janofsky & Walker. What first got his attention, Cole says, was hearing obesity classified as a disease that was reaching “epidemic proportion.” In 2001 the surgeon general reported that more than 300,000 Americans die from obesity-related illnesses each year, at a health care cost of $117 billion. The enormity of the obesity problem raises the question of whether food could be the next tobacco. But there’s nothing near a consensus among lawyers. Debevoise & Plimpton’s Mark Goodman, who has clients in the food industry, sees distinguishing factors between obesity and smoking. “There’s no case for addiction or anything like addiction [with food],” Goodman notes, “so personal choice will be a bigger part of the defense.” In contrast, John O’Connor, special counsel in the San Francisco office of Howard, Rice, Nemerovski, Canady, Falk & Rabkin, thinks food suits will explode. According to O’Connor, who has done a lot of tobacco defense work, “Plaintiffs may argue that there’s a greater duty for the fast-food industry to disclose information than for the tobacco industry, because it’s common knowledge that tobacco’s bad for you.” Banzhaf adds that obesity litigation is following the same path as tobacco suits, only on an “accelerated” timetable. And for any food industry counsel who scoffs at the potential threat, Banzhaf offers a history lesson from tobacco. “Back then they called the lawyers taking these cases crazy,” Banzhaf says. “Today we call them something else � we call them multimillionaires.”

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