Battling Against Big Food

BATTLING AGAINST BIG FOOD PHYLUS MORRIS hailed a cab and bundled her children, Phyllis junior, aged six. and Robert, aged eight, into the back seat. “To the McDonald’s on 34th and 8 th”, she panted “and step on it!” As the cab jerked forward on that cool New York afternoon in 2003, Dr Morris little suspected that her journey would end, not in a well-lit burger outlet, but in the textbooks that would teach young Americans the history of their country’s splendid legal system. As the blocks flew past, Dr Morris told herself that a simple, green tossed salad would suffice for her lunch. Only her children’s whining for fast food, she reminded herself, had drawn her away from her well-stocked kitchen. But as the cab drew to a halt, the truth hit her with a nauseating thud. If she entered those swinging doors, all thoughts of salad would fly from her mind. She would order a super-sized Big Mac, an extra-large portion of French fries and possibly a full-calorie Coke. On the sidewalk, the air was thick with the dispiriting smell of frying fat. Inside those doors, she thought, lay defeat-for her, for her children and for an entire generation of Americans. If she stayed outside those doors, thought Dr Morris, she had a chance of fighting back. Outside those doors lay a chance of maintaining her self-esteem. Outside those doors, and just across the street, lay the office of Dr Morris's lawyer. A decade later, Bentsen Hodges still vividly remembers the instant that the stocky young doctor strode into his office. “She said to me: ‘Bentsen, I've had it with those fast-food companies wrecking this nation's health,’” recalls Mr Hodges, “and little Robert trilled: ‘We're fed up!’” Cooking up a campaign For some time, Mr Hodges, a veteran mass-tort litigator, had been eyeing fast-food firms hungrily. “A good attorney can get a jury to indict a ham sandwich,” he says, “So I thought, why not a Big Mac?” Mr Hodges's mother-in-law had never let him forget that he had won neither fame nor fortune during the tobacco bonanza (not to mention, although she frequently did, the legal feeding frenzy over the corpses of asbestos and lead-paint firms). He was determined to be in the vanguard in the battle against Big Food. In Mr Hodges's opinion, this was the ideal moment to attack. Americans were tired of hearing nutritionists regurgitate the same old advice about eating less and exercising more. Heart disease, diabetes and other diseases brought on by bad eating habits had recently overtaken tobacco-related aliments as the nation's leading killers. A few food makers had announced that they would start to put warning labels on their products. To popular and critical acclaim, two books-“Food Politics” by Marion Nestle (University of California Press, 2002), and Eric Schlosser's “Fast Food Nation” (Houghton Mifflin, 2001)-had dissected the ways in which the food industry manipulated people's diets. Legally, the opening salvoes had already been fired. In July 2002, Caesar Barber, a tubby middleaged maintenance worker, had filed a lawsuit against McDonald's, Wendy's, Kentucky Fried Chicken and Burger King. Mr Barber claimed that eating food from these chains had caused his heart disease and diabetes. Mr Barber's lawyer had also filed a similar suit on behalf of some overweight children. At the time, Mr Hodges thought that neither suit stood much chance of success. Juries, he felt, would conclude that if the plaintiffs had exercised reasonable self-control by, say, eating less, they might have stayed healthy. Before Mr Hodges filed his lawsuit, he wanted to come up with a new and more convincing legal argument. After some weeks of research, Mr Hodges's team plumped for the allegation that fast-food companies were knowingly flogging their products to consumers in unsafe quantities. The linchpin of Mr Hodges’s case was the testimony of his expert witness, a behavioural economist named Richard Reynolds, who had published a series of papers arguing that fast-food firms employed “predatory pricing strategies” that forced consumers to make unhealthy choices.

According to Mr Reynolds, the arithmetic was as simple as it was deadly. In 2002, a regular McDonald’s hamburger, small fries and a 16-ounce (47cl), Coke-all in all, 22.5 ounces of food at 640 calories-cost $2.98. A “value meal” version of the same order cost $6.09, or little more than twice the regular price, but carried 56.5 ounces of food and l,600 calories. Mr Reynolds’s research demonstrated that, faced with that choice, most people would order the value meal, and then eat it all. In evolutionary terms, this choice made sense. It was “burrito optimal”, joked Mr Reynolds, causing a couple of his fellow economists, but no one else, to collapse into hysterical giggles. Primitive man never knew where his next handful of nuts and berries would come from, so he instinctively gorged on the rare occasions when he could. Modern Americans. However, did not face quite the same challenges. Eating too many value meals, or burritos for that matter, would almost certainly cause a person to consume more calories than he burned, eventually making him unhealthily obese. On behalf of several hundred people who claimed to have been victimised by these pricing schemes, Mr Hodges and Dr Morris filed a class-action lawsuit in April 2003, accusing six fast-food companies of fraud, negligence and reckless indifference to public welfare. The defendants all dismissed the suit as absurd and refused to discuss the possibility of settling. But Mr Hodges had marshalled just enough evidence to convince a somewhat bemused judge not to throw the case out of court. As the two sides entered the discovery process, the lawsuit ignited an explosion of public activism. To Dr Morris's happy astonishment, shirts and mugs emblazoned with the words “Stop super-sizing us” started appearing across the country. The airwaves sizzled with arguments about nutrition, obesity and addiction. Mr Hodges began hiring research assistants and public-relations flacks. His office stayed open round the clock, and eventually he was forced to retain an in-house cook: “We couldn't be caught dead ordering take-out,” he chuckles in recollection. As that summer progressed, a constellation of smaller event’s revealed that public opinion was shifting to favour the antifast-food brigade. By the start of the new school year in September 2003, Oregon and Washington state had joined California in banning soda makers from installing vending machines in public school. Lawmarkers in California, Texas and Vermont slapped sales taxes on fast food, the revenue from which was earmarked for an anti-obesity public-health campaign. “Talk to your children about Chicken McNuggets,” intoned one such public-service announcement. “They need your help to say no.” As the cause gained popularity, some of the more daring legal commentators began to consider whether what had happened to tobacco companies might happen to fast-food makers as well. It was true that the first suits against cigarette firms did not fare well in court. But then anti-tobacco lawyers adopted a fresh tactic: rather than arguing that the cigarettes themselves were poorly designed or dangerous, they started to attack the companies that produced them. The anti-tobacco lawyers managed to prove that tobacco bosses had lied to Congress and to the public about the hazards of smoking and about the addictiveness of nicotine. An avalanche of bad publicity descended on the cigarette makers. Shocked juries punished them for betraying their customers, with great severity and a blithe indifference as to whether or not those customers had truly been deceived. It dawned on Mr Hodges then that a similar turn of sentiment could tip the scales against Big Food. Once juries started to feel hostile towards fast-food companies, their nasty tactics and their harmful products, the chains would start offering to settle, just as the tobacco magnates had. The key, explained Mr Hodges to his clients, was to keep the firms squirming in the limelight, and to keep their shareholders out of it.