Low-fat Foods or Big Fat Lies?: the Role of Deceptive Marketing in Obesity Lawsuits

• Citation: Vol. 22 No. 3
• Publication year: 2010

Georgia State University Law Review

Volume 22 j 3

Issue 3 Spring 2006

3-1-2006

Low-Fat Foods or Big Fat Lies?: The Role of Deceptive Marketing in Obesity Lawsuits

Matthew Walker

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Recommended Citation

Walker, Matthew (2005) "Low-Fat Foods or Big Fat Lies?: The Role of Deceptive Marketing in Obesity Lawsuits," Georgia State

University Law Review: Vol. 22: Iss. 3, Article 3.

Available at: http://digitalarchive.gsu.edu/gsulr/vol22/iss3/3

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LOW-FAT FOODS OR BIG FAT LIES?: THE ROLE OF DECEPTIVE MARKETING IN OBESITY LAWSUITS

Introduction

On an episode of Seinfeld entitled "The Non-Fat Yogurt," unexpected weight gain prompts Jerry and Elaine to test the fat content of their favorite "non-fat" frozen yogurt.¹ To their dismay, they discover the yogurt does, in fact, contain fat.² In 2003, life imitated television when consumers brought a class action suit against the DeConna Ice Cream company for inaccurately labeling the fat content of its "Big Daddy Ice Cream." Actually, this basic scenario has occurred multiple times since the episode aired—and that is just within the ice cream industry.⁴

Today, obesity is the second leading cause of death in the United States, with estimated costs reaching approximately $117 billion annually.⁵ With increasing societal concerns over nutrition and weight gain, our society demands more and better information regarding the food we eat.⁶ Consequently, the food industry increasingly markets products with an emphasis on their nutritional value, and some marketers have arguably done so even when the

1. Seinfeld: The Non-Fat Yogurt (NBC television broadcast Nov. 4, 1993), summary available at http://www.tvxom/seinfeld/the-non-fat-yogurt/episode/2311/summaiy.html.

2. Id.

3. See Hal Davis, I'm Outraged. Two More, Please, DAYTON Daily NEWS, Oct. 6, 2003, at El (stating DeConna settled the suit).

4. See, e.g., Veronika Belenkaya & Lisa L. Colangelo, New York Regulators Say 'Low-Calorie' Snack a Whopper, N.Y. Daily NEWS, Dec. 31,2003 (noting a test of CremaLita's low-calorie ice cream revealed over four times the advertised calories); John Murawski, The Chilling Truth Behind 'Sugar-Free, ' Palm Beach Post, May 8, 2003, at Al (reporting a local frozen yogurt vendor's "sugar-free" yogurt in fact contained "[u]p to 2 Vi teaspoons" of sugar per serving).

5. Samuel J. Romero, Obesity Liability: A Super-Sized Problem or a Small Fry in the Inevitable Development of Product Liability?, 7 chap. L. REV. 239,241 (2004).

6. See, e.g., Rob Stein, Huge Effort Urged to Curb Epidemic of Obese Kids/ Panel Calls for More Exercise, Less Junk Food, Video Games, S.F. Chron., Oct. 1, 2004, A6; A. Elizabeth Sloan, American Consumers Are Focused on "Do-It-Yourself Health, J. Am. DIETETIC ASS'n, Apr. 1,2002, available at

http://www.dusru^n.corn/text-data/articles/33505/body.pdf ('75 percent of supermarket shoppers [are] trying to lower the risk of a [health] condition through food purchases and 58 percent [are] trying to manage or treat an existing condition.").

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products are relatively unhealthy.⁷ In 2004, KFC settled Federal Trade Commission (FTC) charges that a recent health-oriented advertising campaign made false claims suggesting KFC products were relatively healthy compared to other fast food.⁸ Similarly, the American Heart Association (AHA) prevented Laura's Lean Beef from using its "heart-check" seal when it determined that some of the company's products contained three or four times as much fat and saturated fat as advertised.⁹ Additionally, the makers of the snack food Pirate's Booty recently paid $4 million to settle a class action suit for "understating fat grams" in their product.¹⁰

In 2002, New York resident Cesar Barber filed suit against multiple fast food corporations, alleging their products caused his obesity, diabetes, and two heart attacks.¹¹ Later that year, the parents of two obese teenagers sued McDonaJd's for causing their children's obesity and obesity-related health problems.¹² Suddenly, the food industry's role in the nation's obesity epidemic became a hot topic in the news, the legal community, and particularly among the food and beverage industry's manufacturers and marketers.¹³

In 2004, to protect the food industry from "frivolous lawsuits," the House of Representatives passed House Bill 339, known as the "Cheeseburger Bill."¹⁴ The Commonsense Consumption Act would

7. See Press Release, Fed. Trade Comm'n, KFC's Claims That Fried Chicken Is a Way to "Eat Better" Don't Fly (June 3, 2004),

http://www.ftc.gov/opa/2004/06/kfccorp.htm.

8. Id. The advertisements also featured "a woman putting a bucket of KFC fried chicken down in front of her husband and announcing, 'Remember how we talked about eating better? Well, it starts today!'" Id.

9. Press Release, Ctr. for Sci. in the Pub. Interest, Heart Association Praised for 'Laura's Lean Beef Crackdown (June 2, 2003), http://www.cspinet.org/new/200306021_print.html.

10. Kate Zernike, Lawyers Shift Focus from Big Tobacco to Big Food, N.Y. Times, Apr. 9, 2004, at Al.

11. Jonathan Wald, McDonald's Obesity Suit Tossed, CNN, http://money.cnn.com/2003/01/22/news/companies/mcdonalds/(last visited Mar. 16,2006).

12. Pelman v. McDonald's, No. 02 CV 7821, 2003 U.S. Dist. LEXIS 15202, at *6-7 (S.D.N.Y. Sept. 3, 2003), vacated in part and remanded by 396 F.3d 508 (2d Cir. 2005); Wald, supra note 11.

13. See, e.g., Laura Bradford, Fat Foods: Back in Court, Time, Aug. 11,2003, at A2 (reporting that the view of obesity as a "societal problem with societal solutions ... has food companies scrambling to put on a healthier face").

14. See H.R. 339, 108th Cong. (2004); Press Release, Physicians Comm. for Responsible Med., Why the Commonsense Consumption Act Is Anything But Common Sense: Blaming the Consumer Won't

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have essentially eliminated consumer lawsuits against the food industry based on "a person's weight gain, obesity, or any health condition related to weight gain or obesity."¹⁵ Proponents say the Act would have placed an emphasis on consumer personal responsibility and prevented "regulation through litigation."¹⁶ Florida Representative Ric Keller, who sponsored the House bill, argued that our society's focus should be on encouraging people, particularly children, to be more active.¹⁷ Opponents argued the Act would have been anti-consumer and would have prematurely relieved the food industry from the threat of lawsuits that "could result in truly healthy changes by [the] industry . . . ."¹⁸ They also argued that the determination as to when a lawsuit is "frivolous" is a legal decision that should be left to the courts, and such a law would be premature, given the failure of obesity lawsuits to date.¹⁹

Notably, the Act would have provided an exception for violations of "Federal or State statutefs] applicable to the manufacturing, marketing, distribution, advertisement, labeling, or sale of the product . . . ."²⁰ Similarly proposed, and in some cases enacted, state laws also allow for this exception.²¹ But these laws generally allow for private causes of action only where the state law violation is "knowing and willful," essentially barring claims based on negligence.²²

This Note focuses on the role of deceptive marketing in obesity lawsuits and the potential for deceptive marketing claims in light of

Solve America's Obesity Epidemic (July 2004), http://www.pcrm.org/news/statement040722.html [hereinafter PCRM].

15. S. 1428, 108th Cong. (2003). Obesity is "a bodily condition marked by excessive generalized deposition and storage of fat." Webster's Third New World Dictionary 1555 (Philip Babcock Gove et al. eds., 1986).

16. The Center For Consumer Freedom, Halting Frivolous Obesity Lawsuits, http://www.consumerfreedom.corrt/news_detail.cfm/headline/2174 (last visited Mar. 16,2006).

17. Perspective on Cheeseburger Bill (CNN television broadcast March 9, 2004).

18. PCRM, supra note 14.

19. Perspective on Cheeseburger Bill, supra note 17; see Editorial, "Burger Bill" Only Protects Fat Cats, S. China morning post, Mar. 14,2004, at 10 [hereinafter "Burger Bill"].

20. S. 1428, 108th Cong. § 3 (2003). A similar bill (with a similar exception) was proposed in the Senate in 2005. See S. 908,109th Cong. § 3 (2005).

21. See, e.g., Utah Code Ann. § 78-27d-103 (2004); Idaho Code Ann. § 39-8702 (2004).

22. See S. 1428, 108th Cong. § 3 (2003).

the fact that such claims could soon be one of the only theories by which consumers could hold a food industry defendant liable for obesity and related health problems.²³ Part I examines the deceptive marketing issues in the most important obesity case to date, Pelman v. McDonald's?* Part II discusses the viability of bringing deceptive marketing claims under theories set forth by proponents such as Joseph Banzhaf and Richard Daynard.²⁵ Part HI looks at the potential for bringing negligence claims in obesity lawsuits under several different theories.²⁶ Finally, Part IV concludes that precisely because of the difficulties in bringing such claims, state and federal legislation should continue to allow claims based on negligent marketing in order to ensure the most accurate communication of nutrition information.²⁷

I. Pelman v. McDonald's: The Prototypical Obesity Lawsuit

In Pelman v. McDonald's, the parents of several minors brought suit against McDonald's on behalf of their children and sought to impose liability for their children's obesity and obesity-related illnesses.²⁸ Though still teenagers, the minor plaintiffs had allegedly already...