On the weekend of 21 to 23 June 2003 the Public Health Advocacy Institute convened a conference at Northeastern University School of Law in Boston to look at legal approaches to the obesity epidemic. The conference drew about 80 participants for the Saturday sessions, including experts in public health and nutrition from the US and Britain and representatives of Non-Governmental Organisations (NGOs) that are tackling the causes and consequences of obesity. It attracted a few private lawyers considering possible lawsuits against food companies, but even more lawyers for food companies and their trade organisations. Several journalists also attended. About half of this group participated in a legal strategy workshop on Sunday, which was limited to those who signed an affidavit agreeing not to work for the food industry or to share information about the workshop with those who do.

This modest gathering apparently struck terror into the hearts of some in the food industry. The week before the conference the Center for Consumer Freedom, an organisation sponsored by chain restaurants and some food manufacturers, testifying in Washington at a congressional hearing on a bill that would immunise the food industry from lawsuits, excoriated the upcoming conference as a gathering of wealthy plaintiffs' trial attorneys seeking new ways to fuel their Lear jets. The week after the conference the Center for Consumer Freedom (which attended and videotaped the Saturday proceedings, and hence knew better) began running with great fanfare a television advertisement portraying a sleazy plaintiffs' lawyer suing a young girl for selling Girl Scout cookies.

What are they afraid of? In short, it's the spectre of tobacco litigation, which has led industry-leader Philip Morris to talk of bankruptcy, coming to haunt the food industry. Two lawsuits against McDonald's brought by a little-known New York lawyer have captured the public imagination. While the public reaction when the suits were filed in mid-2002 was one of ridicule, it has started to change as awareness of the dimensions and import of the obesity epidemic begins to sink in.[1] Tobacco litigation also began small and scorned. While there are critical differences between tobacco and food, there are also relevant similarities between the behaviour of cigarette manufacturers and that of some food companies.

Tobacco versus food

Although tobacco products, in contrast to food products, are toxic in any form or amount, no successful tobacco case has been based on the toxicity of the product. Judges and jurors are no more sympathetic with plaintiffs who 'choose' to smoke in the face of public health warnings than they are likely to be with plaintiffs who 'choose' to overeat at McDonald's in the face of common-sense knowledge of the relationship between overeating and obesity. What has tilted the balance in many tobacco cases over the past seven years is the emergence of evidence that industry misbehaviour has interfered with the ability of consumers to exercise a free and informed choice, to the industry's financial benefit and the consumers' personal and financial loss. This misbehaviour includes the use of sophisticated marketing devices such as the infamous 'Joe Camel' campaign to persuade children and teenagers to take up smoking, denial and disinformation about the dangerous and addictive properties of the product, and the express or implied misrepresentation that some of their products (filtered cigarettes, 'low-tar' cigarettes) are less dangerous than others.

Critical to the success of the tobacco cases have been the discovery of internal industry documents and the testimony of 'whistleblowers' demonstrating the companies' intentions behind their marketing and public relations campaigns, as well as their knowledge of facts that they were publicly denying. Some of these documents were produced by former industry employees, while most of them surfaced as products of the formal 'discovery' process that is part of American litigation.While the search for analogous food company behaviour has only just begun, several possibilities have already surfaced.

First, heavy advertising of high-calorie foods, snacks and soft drinks targeted at children and adolescents may help initiate lifetime obesity. Studies show that children over five will generally eat what is put in front of them, even if they have already had 'enough'. Apparently, the high-fructose corn syrup used in soft drinks, though high in calories, is especially unlikely to trigger feelings of satiety. And children and adolescents who are overweight or obese are very likely to become overweight or obese adults. Evidence that food company executives knew these facts, and that they nonetheless targeted children and teenagers in their marketing campaigns for high-calorie foods, could constitute an 'unfair or deceptive act or practice' prohibited by consumer protection laws in most states. It would also be likely to infuriate judges and juries.

Secondly, some studies suggest that foods with added sugars and fat may be addictive.[2] If food manufacturers have reason to believe this is true, they have an affirmative legal obligation to so inform their customers. Certainly, any denial by food companies or their representatives of addictiveness, or of the contribution made to obesity by added calories in fast foods, grocery items, snacks and soft drinks, would make the companies legally responsible for the accuracy of these assertions. Perhaps that helps to explain why, in public discussions of obesity, the food companies and their representatives have not generally defended the nutritional value of individual food products, but have tended to rely on the truism that any food product (in a sufficiently small quantity) could be part of a balanced diet. As noted, some of their representatives deal with these issues simply by attacking those who raise them.

Thirdly, food companies regularly market their products as health-enhancing. Many foods are pitched as being 'low in fat', where the fat calories have been replaced by carbohydrates, or as a great source of some essential vitamin or mineral. Of course, the typical consumer does not assiduously count her micronutrients, eating just enough of various prepared foods to satisfy all her recommended daily allowances. Rather, consumers tend to interpret 'low fat' claims as meaning that eating the product will not add excess fat to the consumers' waistlines, and other nutritional claims as meaning that eating the food will contribute a necessary ingredient to a well-balanced and nutritious diet. To make such claims for a high-calorie product that contributes to excess weight or obesity is to deceive the consumer. Indeed, to deal with this very deception, on 16 July 2003 David Byrne, the European Health Commissioner, proposed regulations that would prohibit a company from marketing a food as having a health or nutrition benefit if it was also high in salt, sugar or fat.

In the United States, where aggressive regulation to protect consumers has become anathema, lawsuits under state consumer protections laws that prohibit 'unfair or deceptive acts or practices' can achieve the same results. Thus, a class action consumer protection lawsuit against Philip Morris for marketing 'Marlboro Lights' as a less toxic alternative to regular Marlboros when, despite lower readings on machine tests, it was at least equally toxic to actual smokers, resulted in a $10.7 billion judgment for the class. It was also greeted by an announcement by Philip Morris that it would no longer market the product as 'low in tar and nicotine', and a massive Philip Morris advertising campaign to tell consumers that 'There is no 'safe' cigarette', and that 'To reduce the health effects of smoking, the best thing to do is quit.'

Food company executives and lawyers are in the best position to know about the skeletons in their own closets, and hence their own legal vulnerabilities. They know about market research they might have done with children, their studies (or others in their files) that might show how consumers interpret their health claims, and perhaps some internal correspondence about the actual health impact of their products. If they are worried about lawsuits, it is probably because they have reason to be.

The conference

The purpose of the 'Legal Approaches to the Obesity Lpidemic' conference was to begin a process through which public health advocates could develop tools for controlling this epidemic. To do this we needed to learn about the nature of the epidemic and its causes, as well as the strengths and limitations of available regulatory and litigation approaches. The Saturday session was devoted to meeting this need.

Defining obesity

Obesity is measured by the Body Mass Index, or BMI. An individual's BMI is determined by dividing her weight in kilograms by the square of her height in meters. Someone with a BMI greater than 25 is considered overweight; a BMI greater than 30 makes one obese. Obesity has its own gradations. Not surprisingly, the numerical cut-offs are arbitrary, in that chronic disease incidence climbs steadily once an optimal BMI in the low 20s is exceeded.

Obesity causes a wide range of diseases, including coronary heart disease, diabetes, poor surgical outcomes, arthritis, hypertension, gallbladder disease and certain cancers. In the past year, the catalogue of documented obesity-related cancers has expanded, and now includes cancer of the colon, kidneys, gallbladder, esophagus, pancreas, and female reproductive organs, as well as post-menopausal breast cancer.

The obesity epidemic

The incidence of obesity has increased dramatically in the United States over the past 20 years. In 1985, only eight states had adult obesity rates as high as 10 to 14 per cent. By 2001, 49 out of 50 states had obesity rates greater than 15 per cent, about half were over 20 per cent, and Mississippi had made it above 25 per cent. Furthermore, while the entire weight distribution curve is shifting to the right, the greatest increases have been in the highest obesity grades. Paediatric obesity has followed the same course. From 1963 to 1974, only four per cent of six to 11 year olds were seriously overweight; by 1999 to 2000 the figure had reached 16 per cent. Childhood obesity also strongly predicts adult obesity, as well as producing hypertension, elevated blood glucose and type 2 diabetes. It can also trigger adverse psychosocial consequences in the children themselves.

Obesity and disease

Trends in obesity-related diseases have followed the trends in incidence. Thus, in 1990 only four states had adult diabetes rates over six per cent; by 2000 diabetes rates in only eight states did not exceed six per cent, and many were much higher. Indeed, the statistics and projections for type 2 (obesity-related) diabetes are startling. On 15 june 2003, the Center for Disease Control and Prevention issued a warning that, if present trends continue, of all children born in the United States in 2000, 39 per cent of girls and 33 per cent of boys will develop type 2 diabetes at some point in their lives. The figures for minority groups are even worse: 53 per cent of Hispanic girls and 45 per cent of Hispanic boys will develop this disease, as will 49 per cent of African-American girls and 40 per cent of African-American boys.

Obesity is currently estimated to cost between $39 and $52 billion in annual healthcare costs in the United States. These figures will rise sharply when the increased burden of caring for diabetic patients fully materialises. Costs resulting from productivity lost to obesity-related disability and death are of the same order of magnitude. Obesity-related diseases cause about 300,000 premature deaths in the US each year, and are likely to overtake tobacco-related diseases as the leading preventable cause of premature death. By either a financial or a public health measure, steps to deal with the obesity epidemic must be given the highest priority.

The causes of obesity

At one level, the cause of obesity is simple: the sustained excess of calorie intake over calorie expenditure. One pound of body fat represents about 3,500 excess calories. An increased consumption of only 50 calories per day will - holding activity levels constant - produce five pounds of excess fat each year. The more difficult causal question is why there has been an epidemic of excess consumption above expenditure over the past 20 years.

There are four ways this can happen: eating more food, eating more high-calorie food, doing less physical activity, and becoming more sedentary. All of these have occurred. Portions have 'supersized', first in fast food restaurants, then in other restaurants and even at home. Per capita consumption of soft drinks has increased from 27 gallons to 44 gallons per year from 1972 to 1992. Soft drinks in the 1970s were served in 8oz bottles: now it is not uncommon to see 32oz or even 64oz serving sizes. Furthermore, an increasing proportion of food is consumed as snacks, fast foods, and packaged foods, most of which have a higher energy density than home-cooked meals. As for physical activities, automobiles are increasingly used even for the shortest trips, sidewalks do not exist in many newer communities, and parents are increasingly afraid to allow their children to play in the neighbourhood. Televisions, video games, and computers are increasingly substituting for active play among children and teenagers.

Television actually contributes to obesity in all four ways: viewers typically munch or sip high-calorie foods while watching advertising that encourages more of the same; their snacking tends to be relatively unconscious, in that they do not reduce their meal sizes proportionately; they watch vigorous sports instead of participating in them; and the advent of remote controls makes television watching almost entirely sedentary.

Changing behaviour

The existence of the burgeoning obesity epidemic is, of course, testimony to the inadequacy of current efforts to control it. The favourite American approach to almost any social problem is to warn, educate, lecture, and then castigate the victims. People should be told to eat less, eat more healthily, exercise more, and watch less television. If they fail to heed this salutary advice, they must be willful or stupid and we can guiltlessly abandon them to their fate. The reason we so frequently reach the castigation stage is that the 'knowledge by itself changes behaviour' paradigm is almost always wrong as a description of human nature. Invocation of 'personal responsibility' goes only so far. Knowledge of the consequences of one's behaviour is certainly useful in behaviour change, but so are attitudes (dissatisfaction with the status quo), beliefs (that one can change), skills (in making changes), absence of barriers to change (such as cost and lack of access), reinforcement (especially short-term perceived benefits), peer encouragement, social supports, and cultural norms (currently propagated mostly through the media). Successful behaviour change campaigns must address several, and ideally all, of these factors, many of which are external to the individual. Sustainable change, in short, requires tangible change to the environment.

As applied to the obesity problem, the car-friendly, pedestrian-hostile built environment constrains Americans' choices on physical activity. Furthermore, many studies have demonstrated that while willpower and individual choice play a role in what and how much people eat, a host of other environmental factors - including portion size, price, advertising, the availability of food and the number of food choices presented - do influence what people consume. To take just advertising, McDonald's budget alone was $627 million in 1999. How can fruits and vegetables compete? The budget to promote 'five portions of fruit and vegetables a day' is $3 million a year and the National Cancer Institute only has $1 million a year to promote healthy eating. Children in particular are bombarded with food advertisements everywhere they go. The average child sees 10,000 food advertisements on television every year. Ninety-five percent of these are for sugar cereals, candy, fast foods, and soft drinks. Nor do children escape this onslaught at school, where the advertisements continue on Channel One, a daily school news show that contains several minutes of advertisements per programme.

The pressurised marketing environment results from the underlying economics of food production in the United States, and increasingly elsewhere in the world. Fast foods, soft carbonated drinks, and packaged food with added fats and sugars have all become extremely cheap to produce. A successful food brand sells well above what it costs to produce and distribute. The competitive pressure to find ways to get consumers to buy each brand is therefore great. The heavy marketing and modest prices combine to increase consumption ... and consumers' waistlines.

How, then, can this toxic food environment be changed? What tools can public health advocates adopt or mobilise to change the foods that are on offer and the ways they are marketed? In addition to imparting nutritional knowledge, how can we help change the relevant attitudes, skills, cultural norms, barriers to healthy eating and short-term costs versus benefits of healthy eating that together determine food consumption patterns?

If the political will were present, governments at various levels could take effective action. Local school boards could ban the sale of soft drinks and other high-calorie non-nutritious snacks in school buildings, even if this means refusing lucrative contracts in an era of declining budgets. State governments could take a wide variety of measures such as requiring calorie disclosure on fast food packaging, on the same in-store signage that advertises the price, and on cash register displays and receipts. They could also demand food portions be priced by weight, so that a double burger or double-sized portion of french fries would be twice the price; or impose a tax on non-nutritious soft drinks and snacks. States have broad constitutional powers to address social problems, and can learn through trial and error and from each other's experiences which solutions are most efficacious. The federal government could revise its food labelling requirements so that labels clearly reflect the calories contained in the portion typically consumed, and could extend these requirements to foods served in chain restaurants and vending machines. Both state and federal governments could vigorously enforce consumer protection laws, pursuing marketers that mislead consumers, lure children into unhealthy eating patterns, or otherwise commit unfair or deceptive acts or practices. If only the political will were present.

Industry power

The conference itself demonstrated the political power of the food industry. The Director of the Division of Nutrition and Physical Action of the Federal Centers for Disease Control and Prevention had agreed to address the meeting on the subject of 'factors related to the onset of obesity'. Less than two days before his scheduled talk he received instructions prohibiting him and his CDC colleagues from speaking at, or even attending, the conference. Despite the short notice, this did not come as a total surprise to the conference organisers.

In her 2002 book Food Politics, nutritionist Marion Nestle describes the abundant political linkages between the food industry and the federal government, including Congress, various administrations, and the federal bureaucracy. The book looks at the resulting subversion of legislation, regulations, and administrative policies that serve the interests of powerful producer groups rather than consumers. Food Politics awakened the media and many conference participants both to the obesity epidemic and the need for innovative responses to it.

But the industry's political power is not composed simply of lobbyists and campaign contributions on state as well as federal levels. Equally important is its dominant position in terms of shaping public and private discourse on obesity. Framing the discussion in terms of 'personal responsibility' and 'consumer choices', as not only food industry PR flaks but also talk show hosts and their callers are wont to do, precludes consideration of either the marketers' or the government's responsibility for ameliorating the epidemic. The remedies that naturally flow from this are to hector consumers to eat less, exercise more, and supervise their children's diets more closely.

The role of litigation

While this framing is currently dominant, it is not unalterable. Both governmental policy and the tobacco industry used to be equally invisible in a discourse about 'smokers' choices' and 'individual responsibility.' Rising public concern about the dimensions of the problem, tobacco industry marketing targeted at youth, and the blatant falsity of the industry's denial of adverse health consequences began changing public opinion even before the industry's incriminating internal documents began surfacing in 1994. Similar concerns about the food industry are increasingly being expressed in the course of an exponential rise in media coverage of the obesity issue. Alternative discourses about food company misbehaviour and governmental policy options are already getting a more sympathetic hearing than they did a year ago.

In the American political environment, in which government regulation is generally disfavoured and legislators and regulators are unwilling to take actions that might anger food companies, litigation can play a legitimate and critical role.W The availability of contingency fees encourages professional fighters to enter the ring against food companies: as in sports, lucre-driven professionals often deliver a more competent performance than warm-hearted amateur enthusiasts. Litigation can provide a rallying point for activists, and put the obesity issue on the political agenda. It draws tremendous media attention which both reminds the public of the facts underlying the obesity epidemic as well as continually challenging the prevailing 'consumer choice' paradigm. A variety of types of lawsuits - such as class action challenges to marketing practices, suits against school boards for permitting sodas and snacks in school buildings, as well as product liability cases brought by overweight consumers - can prevent the industry and media from typecasting obesity litigation, encouraging instead analysis of the issues at stake in each type of litigation. Lawsuits also bring to the surface internal industry documents that can permanently change how the industry's role in the obesity epidemic is viewed.

Litigation has already produced dramatic changes in industry attitudes and behaviour. Some cases have settled, including an action against McDonald's for misrepresenting their french fries as free of animal products and another against the manufacturer of 'Pirate's Booty' for understating the calories and fat in the product. A lawsuit against Kraft for including transfat in its Oreo cookies produced a commitment by Kraft to try to address the problem. Indeed, soon after the conference, Kraft announced a new policy to end marketing to children, reduce portion sizes, and attempt to reduce the transfat and calories in several of its products. [4] Kraft acknowledged that part of its motivation was to avoid lawsuits. The company's desire to get ahead of the lawsuit problem is not surprising, since it is owned by Altria, the company formerly known as Philip Morris, which well understands the impact litigation can have on a company when it devotes all its energies to combating the litigation and does nothing to change its products and its behaviour. Other companies have also announced changes in their product lines, and a Grocery Manufacturers Association spokesman recently stated that changes are afoot both in individual company offerings and on an industry-wide basis.

Moving on

The confidential Sunday session was devoted to developing legal strategies for combating the obesity epidemic. A wide range of possible strategies were discussed. The group agreed to meet again in a year, and to communicate with each other in the interim in order to make progress as quickly as possible.

The causes of the obesity epidemic are complex and not fully understood. Indeed, our understanding of the biological factors inclining us to obesity in the current food environment is still developing.[5] No one has surveyed the current food marketing scene to assess the role of particular techniques and campaigns in inducing over-consumption. Similarly, the process for developing remedies for the epidemic is still in its infancy. Even generally well-informed people became aware of the existence and urgency of this public health problem only in the past year or two. The effects of a changing public consciousness about obesity on legislation and regulation have just begun to be felt. And, the amenability of the legal system to a variety of possible litigation strategies has barely been tested. We have a lot of work to do.