Who's to blame for the U.S. obesity epidemic?

Stone Phillips Anchor • Profile

If you are a parent struggling to keep your kids from becoming obese, you might sometimes feel surrounded and outnumbered.

And there is cause for concern: today’s children are the first generation of Americans projected to have a shorter life span than their parents — with one out of three at risk of developing Type Two diabetes, a crippling disease once seen only in adults.

Who’s to blame? Most people say: we are. We choose what we eat. But a growing number of advocates, nutritionists, and lawyers are taking the struggle from the food court to the court of law. They want to sue the companies that make and market what’s on your plate. Is this just the latest example of a lawsuit-happy society shirking responsibility? Or are lawsuits a powerful weapon to combat our nation’s obesity epidemic?

In August 2002, two girls from the Bronx, New York, gobbling super-sized meals almost every day sued McDonald's for making them sick and obese.

The reaction was a big round of belly laughs.

We convened several groups of Americans whose weight puts them at the center of this crisis. The men and women we interviewed routinely eat at the McDonald’s sued by the Bronx girls.

Nathanial Martin: Nobody pushed them to go.

Norma Saunders: Nobody said, “Listen, if you don’t get that Big Mac now—you’re going to jail.”

Most consumers say what you eat is your choice. So it’s a matter of personal responsibility. But several academics and lawyers are arguing you’re far less free to choose what’s on your plate than you realize.

DATELINE WEBEXTRA The landscape of obesity in America Dr. William Dietz,  director of nutrition and physical activitiy at the Center for Disease Control and Prevention, shares the startling numbers of obesity in America. Dateline NBC

Phillips: Whose fault is that so many Americans are fat?

John Banzhaf: “Fault” is a hard word. But a large part of it is the restaurant industry and the fast food industry.

John Banzhaf is a law professor at George Washington University. He started thinking about obesity soon after the U.S. surgeon general called it “a national epidemic.” And it didn’t take long before Banzhaf came up with his cure.

Phillips: If you had your way, would junk food be illegal?

Banzhaf: No. I’m certainly not interested in prohibiting anyone. Any adult at least, from eating any kind of food they want.

But Banzhaf hopes lawsuits will force the fast food industry to disclose, on the menu board, just how fattening the food is. Restaurants don’t have to list calories like packaged food do, but Banzhaf says they should. He also wants it to be required that fast food outlets offer more nutritious alternatives. And he wants health warnings to greet you every time you pull up or walk in to order.

Banzhaf: Supposed you walked into McDonald's and saw a warning: “Eating fast food frequently can lead to obesity, which doubles your risk of a heart attack.”

Phillips: But where does that lead us? Doesn’t that lead to warnings about everything? Beware of that neck tie you’re wearing because you could pull it too tight and choke yourself?

Banzhaf: We can take any legal principle and carry it to an illogical extreme. But modern law recognizes that balanced against personal responsibility is corporate responsibility.

That was the idea behind anti-tobacco litigation. 30 years ago, Banzhaf was among the first to suggest suing cigarette-makers to curb smoking. Sure, smokers chose to smoke, but companies failed to warn them of just how addictive cigarettes could be. And that cost the industry billions and billions of dollars.

Phillips: Is junk food the next tobacco?

Banzhaf: I think junk food and perhaps even other foods are the next tobacco.

Banzhaf argues that the food and tobacco industries are alike in many ways. For decades, tobacco giants employed scientists, marketers and lobbyists to downplay the threat of smoking. Now, Banzhaf says, food companies are doing the same thing with obesity.

And, he says, both hide behind that catchphrase: “personal responsibility,” which he says is just a big fat red herring.

Banzhaf: It’s hard to believe that just over the last 20 years, which is when this epidemic started, that somehow we all lost personal responsibility. Because if we did, we’d have far more automobile accidents, far more accidental shootings and so on. We don’t see that.

So what did change? Not us, Banzhaf says, just everything around us.

More Americans work out of the house and longer hours, so we’ve become more dependent on meals we don’t cook ourselves. And in the past two decades, fast food companies have ramped up production and marketing to compete for our dining dollars: expanding outlets, hours, and portions. Fast food is now everywhere. All the time, cheap.

All our panelists says personal responsibility is key – but as locations and portion size multiply, they admit they feel bombarded and boxed in.

Sheila Martin: You can’t go anywhere without a fast food restaurant being right on the next corner.

Nathanial Martin: They’re targeting us. They’re targeting our children. They’re targeting our society.

That’s exactly what the lawsuit against McDonald’s argued. The two Bronx girls claimed the Golden Arches targeted them as kids, deceptively advertising the food as nutritious and never disclosing what’s really in it.

So what happened? In 2003, a judge ruled the teens failed to link their obesity directly to McDonald's. He threw the lawsuit out of court.

Joe Price, attorney: You cannot just pick one thing and say this is the root cause of this person’s obesity.

Minneapolis attorney Jo Price is studying the issue of obesity, preparing for future lawsuits. He’s an expert in this sort of product litigation—his firm defends the food industry.

Price says that unlike the direct link between cigarette smoking and lung cancer, no one can prove that a certain food, or food chain, made them obese. Obesity, after all, is caused by many factors, not just food.

Joe Price: There are people who can go out and eat McDonald's five times a week and never put on a pound.  And as the judge in the McDonald’s case wrote, the law can’t protect people from “their own excesses.” People, if you ask them today, will tell you that they make the decision what they eat, and they make that decision for their children.

Even so, the judge in the McDonald’s case didn’t totally dismiss the idea that customers may be misled, opening the door for future lawsuits; tossing lawyers like Banzhaf—a legal McNugget.

Banzhaf: What he said was Chicken McNuggets are a McFrankenstein creation, the way they make it with all these weird ingredients. It has twice the fat and twice the calories of their cheeseburgers.

Phillips: But nobody’s forcing us to eat fast food or to eat so much of it.

Banzhaf: No. But if a fast food restaurant doesn’t tell you in an effective manner, what’s in the food... if people are confused— thinking, for example, the Chicken McNuggets, because they’re chicken, is healthier than the hamburgers— people can’t make those choices.

Banzhaf calls that consumer fraud. And a way to get to court.

Banzhaf: If I can go there and show that a company misrepresented a product, I can sue on that basis alone and never have to prove that a single person became obese.

McDonald’s changed the recipe of its Chicken Nuggets, replacing the ingredients listed by the judge with familiar and leaner, all-white meat.

Still, that law suit against the Golden Arches hasn’t gone away. Last year, an appellate court ruled that it could proceed after all. The food fight may just be getting started.

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