Fri Apr 09, 2004 5:17 pm by Indy11
>>>From the NY Times<<<<
Lawyers Shift Focus From Big Tobacco to Big Food
By KATE ZERNIKE
Published: April 9, 2004
Lawyers who have made their careers defending the makers of breast implants, guns and tobacco are working from a new playbook. Make portions smaller, they advise food clients. Do not fudge the fat grams. Skip "problem ingredients." And if a case goes to trial, choose jurors who go to the gym; avoid those who take diet drugs or support universal health care.
People may have laughed 16 months ago when obese teenagers unsuccessfully sued McDonald's, saying its food made them fat. But a well-honed army of familiar lawyers who waged war against the tobacco companies for decades and won megamillion-dollar settlements is preparing a new wave of food fights, and no one is laughing.
Both sides seem undaunted by the "cheeseburger bills" wending their way through Congress. Personal responsibility, that legislation proposes, trumps corporate liability when it comes to being overweight. The House passed a bill in March that would prevent people from suing restaurants for making them fat, and the food industry has been supporting similar legislation, nicknamed the Baby McBills, in 19 states. But even proponents of similar legislation in the Senate say it is not likely to pass this year.
And beyond those grounds, lawyers on both sides see broad potential for litigation, including challenges to the ways children are wooed toward sugar and fatty foods, deceptive labeling and misleading advertisements. While lawsuits in tobacco cases were filed before smoking was seen as a public health crisis, awareness about obesity is already high. The federal government calls obesity an epidemic and released statistics last month showing that it was close to overtaking smoking as the nation's No. 1 cause of death.
"The conditions are ripe," Alice Johnston, a lawyer in Pittsburgh, told about 100 lawyers and representatives of some of the largest food companies, including Coca-Cola, Frito-Lay, KFC-Yum Brands and Krispy Kreme, at a recent Washington conference on how to prevent and defend against new obesity lawsuits.
"I'm old enough to remember when they first started talking about suing the cigarette companies and everyone thought it was a joke," said Joseph M. Price, a lawyer in Minneapolis who has defended the makers of breast implants and the Dalkon Shield birth-control device. "Despite the fact that companies are saying this is all bogus and personal responsibility is what counts, I think the lesson we've learned, and that I would preach from my experience, is that you have to take the plaintiffs' bar at their word. They've said they're going to make this the next tobacco. If you go blithely along and ignore it, sooner or later it'll turn around and bite you in the backside."
Lawyers cite 10 prominent cases against the food industry so far, five of which had some success. McDonald's paid $12 million to settle a complaint that it failed to disclose beef fat in its French fries; Kraft agreed to stop using trans fats in Oreos; the makers of Pirate's Booty, a puffy cheese snack, paid $4 million to settle a claim over understating fat grams.
But both sides say they expect more. Defense and plaintiffs' lawyers have begun holding conferences to map strategy. The first for defense lawyers, in January, was so oversubscribed it had to be moved to a larger conference hotel. They say the next suits will not be traditional tort or personal-injury suits, largely because those cases are hard to prove. The defense can argue that the person suing should have eaten better foods, or exercised more, and that no one kind of cookie, hamburger or soda made someone obese.
Instead, lawyers expect new cases to take on companies under consumer protection laws, accusing them of, say, advertising a product as low-fat without also mentioning that it is high in sugar and calories, or promising that a revamped product is "lower" in fat even though it is still not low-fat.
Defense lawyers say companies are vulnerable to suits about misstating fat, calorie and carbohydrate content. They are advising clients to make sure to disclose all ingredients to avoid so-called Frankenfood cases, a specter raised by the judge in the McDonald's case, who said that most people would not expect Chicken McNuggets to have so many additives.
Edited by - Indy11 on 4/9/2004 6:17:46 PM
