Monday comment

Claims, claims, claims

- Last updated on GMT

Related tags: Food industry, Nutrition, Obesity

As lawyers circle the food and drink industry like a fatted calf,
the first lesson for those preparing for defence is that it is not
so much what you sell that matters, as how you sell it.

For in the search for ways of holding individual food and drink makers and sellers responsible for the current crisis of obesity, the industry's weakest flank appears to be in its marketing. This is dangerous territory indeed. In the litigious US, more than 64 percent of adults are currently either overweight or obese and 16 percent of children are obese, and the issue is growing worldwide. And obesity is an expensive condition. The Surgeon General put the cost of illness associated with obesity at $117bn in 2001, close to the average annual $150bn associated with smoking. It is not surprising that the hunt is on for someone to pay. Lawyers now believe they have found the place to attack. They are increasingly targeting the manner in which some companies advertise their products, claiming they breach fraud statutes by misleading consumers into thinking that certain products are healthy and nutritious when they are not. Thus when New York judge Robert Sweet ruled that the teenagers suing McDonald's for making them fat knew the dangers of eating Big Macs and fries in 2003, the legal team promptly filed a revised lawsuit. This time, they alleged that McDonald's engaged in deceptive advertising, in part because it failed to adequately disclose additives and processing methods that make its food less healthy. This change of tack is now picking up speed, with lawsuits increasingly setting aside what makes people fat and instead concentrating on how food was marketed or labelled. It's an approach that food makers need to wake up to quickly. Billions of dollars are spent every year linking food products that contribute to obesity to health, sports, fun and glamour - with never an overweight consumer in sight. And much of this advertising is pitched at children. A recent study found that 97.5 percent of the food commercials appearing on US weekend morning TV network programming were for unhealthy foods - defined as products containing significant amounts of fat, sodium, cholesterol or sugar. For weekend evening programming, 78.3 percent of the commercials were for unhealthy foods. In addition, children are being bombarded with health claims in television advertising, creating a whole generation of Americans confused about which foods are in fact healthy. Being low in fat or having almost no calories does not automatically make a product good for you. But such health claims may end up being very bad for food makers. The spotlight on obesity and food makers has already seen the US confront the issue of personal responsibility. Consumers, it has been decided, ARE responsible for what they buy and what they eat: a verdict that has been backed by bills around the country shielding the food industry from lawsuits related to obesity. Obesity class actions are now blocked in 16 states, with blocks pending in 22 more. How rash then to reopen the door on litigation with poor labelling and suspect advertising. If the food industry wants to prove, beyond reasonable doubt, that it is in no way connected with obesity, it needs to be seen to be correctly informing consumers, leaving would-be litigants with only themselves to blame if they didn't know three burgers a day was bad for them. And then the lawyers, rubbing their hands at the possibility of a lucrative blood bath that would see the food industry go the way of the tobacco and chemical industries, will have to look elsewhere for their hard-earned salaries. Anthony Fletcher is the editor of FoodNavigator-USA.com, a specialist writer on food industry issues and the former editor of FoodProductionDaily.com. With an international focus, he has lived and worked in the UK, France and Japan. If you would like to comment on this article please e-mail anthony.fletcher@novisgroup.com.

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