Fat Foods: Back in Court

When a group of obese teenagers sued McDonald's, claiming that it made them fat, the widely publicized case drew howls of derision. But the burger giant and its competitors aren't laughing anymore. When Federal Judge Robert Sweet threw out the teenagers' case last February, reasoning that customers knew the dangers of eating Big Macs and supersize fries, he went on--in less noted parts of his ruling--to set the stage for future lawsuits. He noted that "Chicken McNuggets, rather than being merely chicken fried in a pan, are a McFrankenstein creation of various elements not utilized by the home cook," including ground chicken skin, hydrogenated oils and dimethylpolysiloxane, an antifoaming agent, and he questioned whether customers understood the risks of eating McDonald's chicken over regular chicken.

Attorneys for the teens, grateful for the judge's guidance, filed a revised lawsuit alleging that McDonald's engaged in deceptive advertising, in part because it failed to adequately disclose additives and processing methods that make its food less healthful. The suit is back in front of Judge Sweet, in New York City, for another round. (McDonald's says its McNuggets contain the same ingredients found in grocery-store chicken and says the second suit is as baseless as the first.)

Whether the case ultimately succeeds, many more are sure to follow. And unlike the original lawsuit, the new ones may have staying power. Trial lawyers have been busy meeting with public-health experts, legislators and nutritionists, and have refined their arsenal against both fast-food and packaged-food firms. Some arguments are speculative, such as the allegation that certain companies manipulated addictive properties in their junk food, as some tobacco companies did with their products. Lawyers claim, for example, that some fast-food restaurants deliberately raise the temperature at which they cook their fries to increase the amount of fat absorbed. Terrie Dort, president of the National Council of Chain Restaurants, calls such allegations "completely absurd and without scientific basis."

But two more tangible legal theories could pose a serious threat to the food firms. One is based on deceptive advertising, the other on aggressive marketing to children. Plaintiffs' lawyers are looking at school-board contracts that give big soda companies exclusive placement in school vending machines in return for cash payments. School boards from Seattle to New York City are reconsidering their partnerships with soda vendors. Thanks in part to the publicity generated by the initial lawsuit against McDonald's, "there has been a shift in perception," said Marion Nestle, chair of the Department of Nutrition and Food Studies at New York University, "from seeing obesity only as a personal or family responsibility to seeing it as a societal problem with societal solutions."