Obesity: recent legislation

Obesity now affects more people worldwide than malnutrition. The prevalence of obesity (defined as body max index (BMI) greater than 30Kg/m2) is now estimated as one in four men and one in five women. The number of obese children has doubled over the past 20 years. One in ten six year olds and one in six fifteen year olds are now obese.

The health select committee published its report into obesity. The report found that the proportion of the population that is obese had grown by almost 400% in the last 25 years. On present trends, obesity will soon surpass smoking as the greatest cause of premature loss of life. The report warned the £3.5bn cost of obesity could threaten the end of a publicly funded health service and there is a danger of increased levels of diabetes, cancer and heart diseases if obesity rises.

Pelmans v McDonalds – obesity litigation in US

There has been widely reported obesity litigation in the US. The most notable of which was Pelmans v McDonalds, which was successfully struck out in 2003. However, McDonald’s is again facing the threat of obesity-related litigation after a US Appeal court ruled in January 2005 that part of the dismissed lawsuit pertaining to deceptive advertising could be reinstated.

Plaintiffs in Pelmans v McDonalds alleged that McDonald’s food was inherently dangerous and addictive and caused obesity and diabetes among a group of teenagers. The action also alleged that the outlets misled people into thinking that its products were nutritious.

At the first strike out application U.S. District Judge Robert Sweet held:

“as long as a consumer exercises free choice with appropriate knowledge, liability for negligence will not attach to a manufacturer. It is only when that free choice becomes but a chimera - for instance by the masking of information necessary to make the choice, such is the knowledge that eating McDonalds with a certain frequency would irrefragably cause harm - that manufacturers should be held accountable.”

The Judge also considered that if, as the claimants argued, McDonald’s food:

Therefore, although the Judge dismissed the lawsuit because he said it failed to link the children’s alleged health problems directly to McDonald’s products, there was the opportunity for the claimants to argue that McDonald’s products had been so altered that their unhealthy attributes were now outside the understanding of the average reasonable consumer.

A federal appeals court has now ruled that some of these questions might be answered with information that is appropriately the subject of discovery. This therefore allows the claims to survive procedurally at least in the short term. Matters of further disclosure may be pre-empted by the requirement that plaintiffs provide more detailed allegations as to what they ate and what information they relied upon in ordering their meals.

Conclusion

Pelman has been the most widely reported obesity lawsuit in the US but is unlikely to be the last. Especially in light of the studies (The New Scientist, 1 February 2003, p 27-9) researching the effect of convenience foods in causing a change in brain structure, usually associated with drug addiction. The claim of “addictiveness” of fast food is a new element to counter the “obviousness” argument in the US class action litigation along the lines of those against the tobacco industry.

The obesity claims in the US have many parallels with the US tobacco litigation. Many of the issues that arose in tobacco (allegations of fraudulent deception and corporate cover-up, issues as to knowledge / defence of volenti non fit injuria, issues of addiction etc) are also relevant in the US in relation to obesity claims. Although there has been tobacco litigation in the UK, it has not followed the same course as that in America, mainly due to limitation points, adjudication by a judge as opposed to a jury and so the examination of issues such as a precise causal connection and practical issues such as the “loser pays” indemnity costs rule. Manufacturers do have a general obligation to warn consumers in respect of product risks. However, in the absence of specific regulatory objections, this obligation exists only where the manufacturer can reasonably anticipate that health hazards will arise during the normal expected use of a product. Nevertheless, sensible defensive steps aimed at limiting possible exposure to litigation will also have positive impact on a company’s reputation for corporate and social responsibility and a possible impact on insurance premiums.

In the UK whilst there has been no high profile litigation there has been increased consumer pressure and awareness. The issue of obesity in the UK has become predominantly one of protecting brand reputation in seeking to limit any future legislation in this area through self-regulation.

Many companies have already taken action to improve the nutritional content of food products because of consumer concerns and many fast food restaurants have now introduced a range of healthy dishes.

The importance of brand reputation certainly should not be underestimated. Other US litigation concerning trans-fats has been filed with the sole aim of raising consumer awareness against the products which are the subject of the litigation.

This article first appeared in our Food industry law bulletin May 2005. To view this publication, please click here to open a new window.