Policy Options for Combating Obesity: Will Lawsuits Against McDonald’s Work?
Melissa Grills Robinson, Paul N. Bloom and Nicholas Lurie*
Melissa Grills Robinson is a Ph.D. student in marketing and an attorney, Paul N. Bloom is
Professor of Marketing, and Nicholas Lurie is Assistant Professor of Marketing, University of
North Carolina at Chapel Hill. Please send all correspondence to Melissa Grills Robinson,
University of North Carolina at Chapel Hill, Chapel Hill, NC 27599-3490, tel. (919) 843-8386,
fax (919) 962-7186, email melissa_grills@unc.edu. The authors thank Gary Ford and Robert
Adler for their helpful comments.
Policy Options for Combating Obesity: Will Lawsuits Against McDonald’s Work?
Recent obesity-related lawsuits against fast food chains have met with limited success. This
article compares legal efforts against fast food with those against tobacco and argues that, for a
number of reasons, such legal efforts are unlikely to succeed. Several alternative policy options
for combating obesity are proposed.
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Activist groups and observers of American culture have suggested that producers of fast
food should be held responsible for the health problems attending obesity, which are estimated to
have cost $117 billion, nearly 10% of total US health care expenditures, in 2000 (U.S.
Department of Health and Human Services 2001). Eric Schlosser (2002), in Fast Food Nation,
and Greg Critser (2003), in Fat Land, detail what they see as the negative impact of the fast food
industry on American life. In addition, there have been several recent lawsuits against fast food
companies alleging deceptive advertising, failure to warn, and strict products liability (Barber v.
McDonald’s Corp. 2002; Pelman v. McDonald's Corp. 2003).
Many of those focusing their attention on the fast food industry, such as John Bahnzhaf
of The George Washington University Law School, were active in challenging the marketing
practices of tobacco companies, and hope to channel their successes against tobacco toward
changing the marketing of fast food. Bahnzhaf and others have called on the fast food industry to
voluntarily make their menu offerings more healthful and to curb some of their marketing to
youth, particularly in schools (Banzhaf 2003).
Given that some have argued that those seeking to challenge the fast food industry should
build on legal successes against the tobacco industry, (Banzhof 2003; Crister 2003; Schlosser
2002), this article provides a brief history of the tobacco litigation, focusing on the extent to
which it provides a roadmap for legal action against fast food manufacturers. It then reviews the
court decision handed down in the most thoroughly litigated of the fast food lawsuits, Pelman v.
McDonald’s Corp. (2003), and analyzes the rationale for the outcomes of this suit. After
concluding that future lawsuits against the fast food industry are unlikely to succeed without
significant evidence of fraud or dishonesty on the part of the fast food industry, alternative policy
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approaches that may be more successful in ameliorating this very serious societal problem are
explored.
Tobacco Litigation: Roadmap for Success or Red Herring?
Recent discussions of the tobacco litigation typically focus on the precedent-setting
settlements of the 1990s, when the fifty United States settled with the six largest tobacco
companies for $246 billion over twenty-five years, pursuant to the terms of the Master
Settlement Agreement between the states’ attorneys general and the tobacco industry (National
Association of Attorneys General 1998). The sheer size of the settlements makes it easy to forget
that the history of tobacco litigation has not been filled with success. In fact, it was only after
years of failure that the tide turned against the tobacco companies. By reviewing the factors that
led to success against the tobacco industry, we can assess whether the same factors are likely to
be in play in potential lawsuits against the fast food industry.
Early Litigation: Industry Denial of Product Dangers
Anti-tobacco activists worked for years to force tobacco companies to include warning
labels on their products, and to pressure the government into regulating the industry’s more
objectionable marketing practices. In spite of strong warning labels, a ban on broadcast
advertising, and numerous anti-smoking media campaigns, only limited success was achieved in
reducing tobacco use in the U.S. (Rabin 1992). Frustrated, anti-tobacco advocates took their
appeals to the courts, hoping that lawsuits might force the industry to change its marketing
practices even further. Advocates also hoped the industry would be forced to pay fines that
would raise their costs, thereby discouraging consumption through the resulting higher prices.
Early litigation was based on 1950s era studies showing an association between
cigarettes and lung cancer, and was based in varying theories of negligence, misrepresentation
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and breach of warranty (Rabin 1992). Industry reaction to these suits would set the pattern for
decades to come. The tobacco companies appeared willing to invest almost unlimited resources
to aggressively deny any causal link between smoking and any disease. They also argued that
they lacked sufficient knowledge or notice of any health risks to incur a duty to warn their
customers. Brought in a climate when almost half of all adults smoked cigarettes, tobacco
advertising was unchecked, and even leading members of the medical profession were skeptical
about a causal link between smoking and disease, it is not surprising that the few suits that
reached trial were uniformly unsuccessful (Bayer and Colgrove 2002).
Second Wave Litigation: “Assumption of Risk” and a Break in the Wall of Silence
Although tobacco companies were forced to add warning labels to their products in 1965,
(Federal Cigarette Labeling and Advertising Act of 1966, 15 U.S.C. 1331 et. seq.) they
successfully defended against litigation throughout the 1980s and early 1990s (Rabin 1992).
These lawsuits continued to focus on the riskiness of the product, often alleging legal theories
such as strict products liability and failure to warn of the dangers posed by tobacco smoking
(Rabin 1992). As consumers grew more aware that cigarettes are unhealthy, tobacco companies
reversed strategy, arguing that hazards from smoking tobacco were so well known as to be
“common knowledge,” and that consumers had “assumed the risk” of whatever hazards were
posed by tobacco smoking. Throughout this period, the industry was able to avoid nearly any
disclosure of internal industry documents.
The first legal success against the tobacco industry came in 1985, when Rose Cipollone
and her husband sued Liggett Group, Inc., and won a jury award of $400,000 (Cipollone v.
Liggett Group, Inc. 1988; Cipollone v. Liggett Group, Inc. 1992). On appeal, the Supreme Court
set aside the jury verdict, and ruled that the Cipollones were barred from asserting claims based
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on theories of negligence or failure to warn on the part of the tobacco companies (Cipollone
1992). Nine years and $3 million later, Mrs. Cipollone had passed away, and, in the face of
defense spending of $50 to $75 million, (Pringle 1998; Rabin 2001), the plaintiff’s widowed
husband and her attorney allowed the case to languish. However, Cipollone (1988; 1992) was
pivotal, as it marked the first time a plaintiff had gained access to internal tobacco industry
documents. Only a small number of documents were released, but those that were released
provided the first glimpse into the tobacco industry’s deceptive and/or manipulative acts.
Third Wave: Public Opinion and New Forms of Litigation Shift Focus to Industry Conduct
Following Cipollone (1988; 1992), three factors converged to change the face of tobacco
litigation: (1) revelations of tobacco industry wrongdoing; (2) new forms of litigation which
allowed plaintiffs to join resources, thereby helping to level the playing field between the
resources available to plaintiffs and the tobacco industry; and (3) the development of new legal
theories (World Health Organization 2002). In early 1994, two industry “whistleblowers”
revealed damning information about the tobacco industry to newspapers and the federal
regulatory authorities (Rabin 2001). At the same time, the U.S. Food and Drug Administration
began to investigate claims that the industry manipulated the levels of nicotine in cigarettes to
encourage addiction (Kessler 1994). This led in part to a hearing by the U.S. House of
Representatives, where the sight of tobacco company CEOs testifying that cigarettes do not
addict smokers or cause disease helped to change public opinion of the tobacco companies
(Campbell et al. 1994). The FDA and Congressional inquiry, together with investigative
reporting by journalists, further changed public opinion by revealing evidence of the tobacco
industry’s efforts to manipulate the addictiveness of cigarettes, to target children in marketing,
and to manipulate public policy to ensure continued profitability.
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In the early 1990s, tobacco plaintiffs and their attorneys began to recognize the potential
benefits of “mass tort” class action litigation. This form of litigation helped to shift the balance
of power between plaintiffs and powerful defendants, and created incentives for both claimants
and their attorneys. Mass tort cases are allowed, or “certified,” where an identifiable class of
individual claimants has suffered similar injuries under similar factual circumstances and where
common legal questions predominate (Fed.R.Civ.P. 23(a)). Economies of scale realized by
joining a number of plaintiffs increase potential size of legal awards as well as legal fees and can
encourage attorneys to invest the substantial resources necessary to combat well-funded and
sophisticated defendants such as tobacco companies. Although several mass tort cases were
brought against tobacco manufacturers in the early 1990s, most failed due to variations among
state law which made a nationwide class action inappropriate, or because too many
individualized issues of law and fact were involved (Kearnes 1999). Only two cases were
certified, and neither succeeded (In re: Tobacco Litigation (Medical Monitoring Cases) 2001).
During this time, growing public awareness that tobacco companies had in fact known
the risks of smoking, and had possibly manipulated the addictive nature of the products,
weakened the industry’s ability to assert “assumption of risk,” contributory negligence and
“comparative fault” defenses. The tobacco industry’s public image was further damaged as
evidence mounted that the companies’ marketing targeted underage smokers and other at-risk
populations (Campbell et al. 1994).
With the emergence of damning evidence of industry-wide practices, the development of
legal tactics that allowed the pooling of resources, and the weakened plausibility of industry
defenses, plaintiffs began to focus less on the nature of the product and more on the conduct of
the tobacco manufacturers. Building on this change in public perception, the states’ attorneys
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general sued the major tobacco companies for recovery of the costs of treating smokers’ illnesses
(National Association of Attorneys General 1998). Because these claims were not brought on
behalf of smokers, the smoker’s conduct or knowledge of health risks could not be used as a
defense. In addition, there was no need to prove that a particular individual relied on any specific
industry representation. Rather, these suits were mainly law enforcement actions, emphasizing
industry conduct and alleging civil violations of state laws, including consumer protection,
advertising, antitrust and racketeering statutes, in addition to related tort and equitable theories
(Wilson and Gillmer 1999). Although courts have generally dismissed similar cases by thirdparty payers of medical expenses for lack of standing (e.g., Lyons v. Philip Morris, Inc. 2000;
Oregon Laborers-Employers Health & Welfare Trust Fund v. Philip Morris, Inc. 1999; Texas
Carpenters Health Benefit Fund v. Philip Morris, Inc. 1999), the cases brought by the states’
attorneys general were ultimately settled for $246 billion, payable over twenty-five years
(National Association of Attorneys General 1998).
In summary, lawsuits against Big Tobacco were generally unsuccessful until the mid to
late 1990s. At that time, suits shifted from claims arising out of traditional products liability
toward two other theories, both of which depend on arguments that the tobacco companies
knowingly and willingly withheld or distorted information and, in some cases, lied. First,
plaintiffs argued that the defendant could not rely on assumption of risk defenses, because the
tobacco companies’ misdeeds made it impossible for consumers to be fully aware of the risks of
smoking. Secondly, smokers could not have adequately weighed those warnings they did receive
because they were children when they began smoking, and, because smoking is addictive, they
could not stop (Wilson and Gillmer 1999).
Following “Big Tobacco”—“Big Food”?
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On August 3, 2000, the parody newspaper, The Onion, ran a joke article with the headline
“Hershey’s Ordered to Pay Obese Americans $135 Billion,” reporting on a hypothetical classaction lawsuit alleging that Hershey “knowingly and willfully” marketed to children “rich, fatty
candy bars containing chocolate and other ingredients of negligible nutritional value,” while
“spiking” them with “peanuts, crisped rice and caramel to increase consumer appeal” (Hershey’s
Ordered to Pay Obese Americans $135 Billion” 2000).
In an example of life imitating art, New York City attorney Sam Hirsch filed suit shortly
afterward against McDonald’s on behalf of a proposed class of obese and overweight children.
(Pelman 2003). These children claimed that their obesity-related health problems were caused by
their consumption of McDonald’s foods. The original suit (dismissed in Pelman I) alleged three
categories of claims: (1) violations of New York consumer-protection statutes, (2) a series of
claims sounding in New York products liability law, and (3) negligence. Although the original
suit was dismissed, the plaintiffs re-filed their complaint (dismissed in Pelman II), basing their
claims only on violations of the New York consumer-protection statute. The following sections
address the basic legal theory underlying each of these claims, and the court’s ruling as to why
each of these claims was dismissed.
Consumer Protection Statutes
The New York Consumer Protection Act prohibits any “act, practice or advertisement”
which is “consumer-oriented” and “misleading in a material aspect” if the plaintiff was injured as
a result of the deceptive practice, act or advertisement (Consumer Protection Act, New York Gen.
Bus. Law §§ 349 and 350, and New York City Administrative Codes, Chapter 5, 20-700 et. seq.).
The plaintiffs claimed that McDonald’s, through advertising campaigns and other publicity,
misled them into believing that its menu items were “nutritious, of a beneficial nutritional nature
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or effect and/or were easily part of a healthy lifestyle if consumed on a daily basis” (Pelman II
2003, at *2). In addition, they argued that McDonald’s failed to adequately disclose that
processing and ingredient additives caused some of its food to be substantially less healthy than
represented in advertising campaigns and other publicity. Although the court dismissed the
original complaint, Pelman I (2003) provided clear guidance as to what kind of evidence would
be required to uphold the alleged consumer protection claims. In particular, there would have to
be evidence of a specific deceptive promise or deceptive omission, along with evidence about
causation of injury.
Deceptive Acts: Need Specific Deceptive Promise
The court compared the alleged evidence of deceptive acts to the deceptive acts proven in
the tobacco cases, and found the plaintiffs’ claims lacking. The judge pointed out that
McDonald’s “McChicken Everyday!” and “Big ‘n’ Tasty Everyday” advertising campaigns,
together with a website statement that “McDonald’s can be part of any balanced diet and
lifestyle” could be read as contradictory, but noted that some people can eat at McDonald’s every
day and remain healthy. The court also commented that the “Everyday” campaign was “mere
puffery,” or an exaggerated general statement, and not a claim that to eat at McDonald’s every
day will result in a specific effect on health. The court also described two advertising campaigns
that encouraged children to eat two servings of meat each day as “mere puffery,” in that they
were not deceptive and plaintiffs failed to show any specific promises or exhortations. (Pelman I
2003, pp. 529-530).
Deceptive Omissions: Information Must be Solely Within Defendant’s Possession
According to the Pelman I (2003) decision, McDonald’s failure to post nutritional
labeling was not, in and of itself, deceptive. Rather, the court advised the plaintiffs that they
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would have to show that nutritional content information was solely within McDonald’s
possession. Interestingly, the court commented that if it could be shown that McDonald’s food
was addictive, given that “such information is not available to the public,” this might support a
cause of action (Pelman I 2003, p. 542).
In their amended complaint, the plaintiffs were able to show that they relied upon a single
allegedly deceptive advertising campaign. The court agreed that plaintiffs successfully alleged
they were aware of McDonald’s national advertising campaign announcing it had switched to
100% vegetable oil in its French fries and hash browns, and that its fries contained no cholesterol.
Plaintiffs also alleged that McDonald’s failed to disclose that these items in fact contained beef
fat or extracts, as well as trans fatty acids. By alleging that they would not have purchased or
consumed these items absent the advertising campaign, the plaintiffs’ claims were sufficient to
survive dismissal (Pelman II 2003 at *25).
Although it agreed to consider the plaintiffs’ allegation, the court rejected the argument
that McDonald’s advertising campaign was in fact deceptive. The plaintiffs argued that
McDonald’s claim to be “getting a handle on cholesterol” by cooking with 100% vegetable oil
was deceptive because the oil in which McDonald’s cooks its French fries contains trans-fatty
acids responsible for raising blood cholesterol levels. However, because they did not show that
McDonald’s made any representation about the effect of its fries on blood cholesterol levels, the
court rejected this claim (Pelman II 2003, at *34).
Causation: The Likely Stumbling Block
In order to successfully claim damages, plaintiffs must show that a deceptive act causes
them an injury (Consumer Protection Act, New York Gen.Bus.Law §§349-350). The court based
its dismissal of both Pelman I and Pelman II (2003) in part on the fact that the plaintiffs failed
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to make a causal connection between their consumption of McDonald’s food and their alleged
injuries. Because the complaint did not present sufficient evidence stating how frequently the
children ate at McDonald’s, and did not address the role that factors other than diet might play in
their obesity, the claims failed for lack of causation. To stand, the complaint would have to
address these variables, including other lifestyle practices and hereditary traits. That is, the
plaintiffs would have to show that these variables had no effect on the plaintiffs’ obesity-related
injuries or must be able to show that consumption of McDonald’s food was a substantial factor
despite these other variables.
Undecided Claims
Although the court dismissed the following claims in Pelman I, and the plaintiffs did not
pursue them in Pelman II, the guidance as to what is necessary to support a claim is worth noting.
Products Liability
Count three of the original complaint was based in products liability, as the plaintiffs
alleged that McDonald’s acted negligently “in selling food products that are high in cholesterol,
fat, salt and sugar when studies show that such foods cause obesity and detrimental health
effects” (Pelman I 2003, p. 520). According to the Restatement (Third) of Products Liability
§402A (sec.2), “A product is defective when, at the time of sale or distribution, it contains a
manufacturing defect, is defective in design, or is defective because of inadequate instructions or
warnings.” Relying on products liability theories, plaintiffs claimed that (1) McDonald’s
products are inherently dangerous, (2) McDonald’s products are more dangerous than a
reasonable consumer would expect, and (3) over-consumption by consumers is a foreseeable
misuse against which McDonald’s should have protected consumers. Although the court
dismissed each of these claims, it provided some guidance as to how they could be bolstered.
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Inherently Dangerous Products
McDonald’s products are inherently dangerous if they are either “so extraordinarily
unhealthy that they are outside the reasonable contemplation of the consuming public or so
extraordinarily unhealthy as to be dangerous in their intended use.” (Pelman I 2003, at 532) The
court noted that it is common public knowledge that fast food contains high levels of unhealthy
ingredients, and observed that scientific opinion varies as to how dangerous some of these
ingredients, particularly fat, really are to the consumer. If, however, manufacturers masked
information necessary to make a free consumption choice, they should be held liable. The court
again drew a parallel with the tobacco litigation, noting that that litigation succeeded when it
became known that tobacco companies intentionally manipulated the nicotine levels of cigarettes
to induce addiction.
McDonald’s Products are More Dangerous than Reasonable Consumers Expect
The plaintiffs in the Pelman I (2003) complaint alleged that McDonald’s products have
been processed to the point where they have become completely different and more dangerous
than the run-of-the-mill products they resemble and than a reasonable consumer would expect.
Therefore, plaintiffs alleged, consumers have not been given a free choice. The court
acknowledged that it is questionable whether a reasonable consumer would know what goes into
a Chicken McNugget, or that it contains more than twice the fat of a hamburger. However,
plaintiffs would have to establish that these dangers are not commonly known. Plaintiffs failed to
sufficiently develop this claim in the original complaint, and dropped this allegation in the
amended complaint (Pelman I 2003, p. 535).
Foreseeable Misuse
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Plaintiffs also alleged that over-consumption of McDonald’s products is a “misuse” of
those products which should have been foreseen and warned against by the manufacturer. The
court advised the plaintiffs that they failed to allege that there was misuse “in the sense that it
was outside the scope of the apparent purpose for which the [products] were manufactured,”
(Pelman I 2003, p. 537) and failed to cite any case law supporting their contention that overconsumption of a food could be a misuse. However, the court did observe that if plaintiffs could
allege that McDonald’s intends its products to be eaten for every meal of every day and that it is
or should be aware that such use is unreasonably dangerous, they might be able to state a claim
(Pelman I 2003, p 537). Again, this claim was dropped in the amended complaint.
Failure to Warn and Addictive Foods
The plaintiffs in the Pelman I (2003) case alleged that McDonald’s had a duty to warn
consumers that a diet high in fat, salt, sugar and cholesterol could lead to obesity and health
problems. Because plaintiffs failed to show that the products they consumed were dangerous in
any way other than that which was open and obvious to a reasonable consumer, the court noted
that McDonald’s had no duty to warn consumers about those dangers.
Negligence
Lastly, plaintiffs alleged that McDonald’s acted negligently in marketing food products
that were physically and psychologically addictive. The court had difficulty determining the
basis of this claim, and noted that the allegation was so vague that it could not be properly
considered by the court. However, the court noted that a claim might be alleged if plaintiffs
could (1) allege that they were addicted, supported by allegations revealing ways in which their
addiction could be observed, and (2) specify the basis of their belief that they and others became
addicted to McDonald’s products, including allegations as to what frequency of use yields an
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addiction. Although the fact-intensive nature of any such claim would make class certification
difficult, it could be supported given that it is not obvious to the reasonable consumer that fast
food is addictive. The court also hinted that it would look for allegations that McDonald’s
purposefully manufactured products with addictive qualities or that it manipulated ingredients in
the same manner that tobacco companies manipulated nicotine levels (Pelman I 2003, p. 542).
Again, plaintiffs did not pursue this claim in the amended complaint.
To prove any of the foregoing claims, the plaintiffs would have to show that, even if
McDonald’s did engage in the disputed activity, that activity was a substantial cause of their
obesity-related damages. As in the case of the statutory consumer protection claims, the court
found that the plaintiffs failed to show that McDonald’s conduct was a substantial cause in
bringing about their obesity-related damages. Importantly, the court also noted that the need to
determine many individualized factual questions would make it unlikely that the plaintiffs could
be certified as a class. Because each plaintiff’s injuries would be the products of individual
hereditary and lifestyle variables, the proposed class would be unlikely to satisfy the “typicality
requirements” needed to certify a class.
Lessons Learned
Based on the Pelman (2003) decisions, it is apparent that the strategies that were
ultimately successful in tobacco litigation cannot be imported wholesale into lawsuits seeking to
change the marketing of fast food products. Food is not addictive, at least not as science
currently understands addiction. Therefore, consumers who should generally understand the
dangers of consuming high-calorie food on a regular basis cannot claim that they are unable to
resist such dangers.
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Whereas development of emphysema and lung cancer can be causally linked to a history
of cigarette use, the medical profession has identified myriad plausible alternative factors
contributing to obesity (e.g., Anderson, Butcher and Levine 2003). The lack of complete
scientific understanding of the root causes of obesity will make it difficult for a plaintiff to
successfully allege that any one factor (such as the marketing of fast food) is a substantial cause
of his or her obesity and related damages.
Although the products liability claims were not resolved, the Pelman (2003) court
indicated that similar cases are unlikely to succeed without evidence of wrongdoing similar to
that found in the tobacco cases. Because the plaintiff could not allege that the dangers posed by
McDonald’s products were known only by the manufacturer, and not known by consumers, the
Pelman (2003) court was unwilling to hold McDonald’s legally responsible. Unless evidence of
fraud is uncovered, or there are significant changes in the scientific understanding of food and
addiction, it seems likely that future courts will continue to rule that it is common knowledge
that fast food products are unhealthy, but not addictive, and not harmful in and of themselves.
They are likely to find that food manufacturers have no legal duty to warn consumers of
commonly known dangers, and therefore are not responsible for damages consumers may inflict
on themselves by consuming fast food products.
Although food manufacturers have no legal duty to warn of commonly known damages,
it is worth noting that a few food manufacturers have been held liable for deceptive acts under
consumer protection statutes. Unlike the Pelman plaintiffs, however, plaintiffs in these cases
were able to show the manufacturers had made claims about their food that were verifiably false.
Earlier this year, Robert's American Gourmet settled a class action claiming that the firm
misstated the calorie and fat content of its Pirate's Booty snack for more than $3 million
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(Bradford 2003). McDonald's paid $12.5 million in 2001 and issued a public apology to settle a
suit for advertising that its fries were cooked in vegetable oil, leading consumers to think that
they were vegetarian, when in fact they were also cooked in beef fat (Bradford 2003). Finally, a
Florida ice cream company that underreported its saturated fat settled the case for an undisclosed
amount (Higgins 2003).
Another important lesson from the Pelman (2003) case is the difficulty plaintiffs face in
attempting to certify a class for a mass tort claim. Evidence of eating habits, personal and family
medical history and other lifestyle factors, which would be required to show causation of obesity,
would be necessarily individualized. Proof involving the health of one plaintiff cannot stand in
for proof involving any other plaintiff. If mass consumer claims against food manufacturers are
found unsuitable for a class action suit, individual plaintiffs are likely to face many of the hurdles
faced by individual tobacco plaintiffs if they challenge a well-funded food manufacturer such as
McDonald’s.
Policy Options
As noted by the court and as is well-documented throughout the medical literature (e.g.,
Anderson, Butcher, and Levine 2003), the root causes of obesity are complicated. To some
extent, obesity in the United States reflects our success in creating a technologically advanced
society. Computers, inexpensive transportation and automation combine to free people from jobs
demanding physical labor. Improved agricultural and logistical systems provide us with low-cost,
energy-dense foods. At the same time, Americans find fewer opportunities for leisure-time and
exercise. Families where both parents work or single-parent families are likely to place a
premium on efficiency. Unfortunately, efficient foods, such as McDonald’s and other fast food,
are often those highest in calories. And, given that approximately 74% of American adults report
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they do not engage in the amount of leisure time physical activity recommended by the US
Department of Health and Human Services (2001), many of those consumers are not burning off
the calories they consume.
So, what role does the marketing of fast food play in this complicated picture? Lawsuits
that seek to force changes in marketing techniques, or to impose such significant penalties that
prices must be raised to a level which would discourage consumption, seem unlikely to succeed.
Although unlikely to succeed from a legal standpoint, such well-publicized litigation may serve a
shaming purpose, forcing companies to “voluntarily” restrict some of their more aggressive
marketing campaigns. However, given the expense involved in bringing such suits and the
possibility that they may even be banned by new state-level legislation (Zernike 2003), it seems
that other policy approaches will be more effective, and may be better directed at changing
consumption and exercise patterns as a whole, rather than simply focusing on fast food
marketing.
Information Remedies
Portion sizes served both in restaurants and at home have increased dramatically over the
past ten years (Young and Nestle 2002). Larger packages of familiar branded products increase
consumption, and larger packages are associated with lower unit costs (Wansink 1996). Because
larger portions are less costly per unit, and oversized packages draw attention to the product,
restaurants and retail food producers increasingly offer large portions and oversized packages. In
trying to get the best value for their money, consumers may be unaware that the “super-sized”
packages that appears to be such a bargain are in fact bad for their health and a major source of
profit to restaurants. Hence, information could be offered to consumers about how much
additional cost, calories, fat and sodium they get when they “super-size” their meals. Moreover,
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drawing on persuasion knowledge research, (Friestadt and Wright 1994) informing consumers
about the profits made from large sizes could change consumer responses to efforts by fast food
companies to get them to “super-size.”
Helping the medical profession understand the most effective ways to communicate the
risks of obesity is another potentially rewarding area of research. Although the risks associated
with obesity are becoming more widely known, family practitioners are not necessarily
communicating those risks to their patients. In addition, given that the family environment has a
significant impact on children’s consumption patterns and food preferences, and certain childfeeding practices affect preschoolers’ ability to self-regulate energy intake (Johnson 2000),
research on ways to get parents to change child feeding practices may be particularly fruitful.
Incentives and Taxes
Pricing of food clearly influences consumers’ choice of what to consume. However, it
seems unlikely that legislators interested in re-election would consider imposing significant taxes
on high-calorie, low-nutrient foods. Unlike tobacco, where the general public generally
disapproves of the minority of Americans who smoke, a “fast food tax” would affect the majority
of Americans, most of whom do not accept the argument that certain types of food are “bad” in
the same way as tobacco or liquor. Another avenue for influencing consumption behavior might
capitalize on the possibly price elastic nature of weight. For example, activists have suggested
that health insurance premiums be linked to weight (Banzhaf 2003), and some airlines require
overweight customers to purchase two tickets if they encroach on others’ seats (Koenig 2002). If
other vendors with space capacity constraints follow this path, consumers might respond to these
price incentives. Furthermore, such an approach would leave responsibility for the consequences
of one’s weight with the individual.
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At the same time, given that consumption habits are formed early in life (Carter 2002;
American Dietetic Association, Society for Nutrition Education, and American School Food
Service Association 2003), manipulation of food prices in schools may be a way to encourage
healthy eating habits. When the price on lower-fat snack foods stocked in vending machines was
reduced relative to higher fat snacks, the percentage of lower-fat snack food sales increased
significantly (French 2001). It has also been shown that reducing the cost of fruits and vegetables
in two secondary school cafeterias increased sales of those products (Hannan, et al. 2002).
Research into the long-term effects of pricing on consumption patterns would be useful.
Finally, it is worth noting that governmental social policies in general, including the
school lunch program, WIC and food stamps, were developed at a time when feeding the
starving was the policy focus. Given the prevalence of obesity, particularly among lower-income
consumers (Department of Health and Human Services 2001), it may be time to rethink these
programs’ goals, and to reconsider the foods they encourage consumers to purchase and consume.
Media or Distribution Bans
The Federal Trade Commission regulates unfair or deceptive acts and practices, but the
line between commercial and fully protected speech is blurry. The Supreme Court has hinted that
regulation of commercial speech may be subject to a “strict scrutiny,” and may be as fully
protected as individual speech. For example, state restrictions on retail tobacco advertising,
which would have banned most outdoor and point-of-sale advertising, were struck down in
Lorillard Tobacco v. Reilly (2001). Even a compelling interest in protecting children’s health
does not allow the government to overly burden the flow of lawful, non-misleading
communication to adults about tobacco products (See 44 Liquormart, Inc. v. Rhode Island 1996).
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If restricting mainstream food marketing is unrealistic, it may be beneficial to again
consider the school environment. Almost half of American school districts allow companies such
as Coca-Cola or PepsiCo to sell their products on campus. Exclusive arrangements allow these
companies to build brand loyalty with young consumers. In return, schools receive upfront
payments for the contract and often a percentage of sales. Many commentators have observed
that schools provide an inadequate environment to support healthful eating, as a lack of
nutritional and physical education is combined with permitting aggressive corporate marketing to
children in the school setting (e.g., Anderson, Butcher and Levine 2003; Levine 1999). Although
cash-strapped school districts may be unwilling to abandon the revenue these contracts provide,
it would again be interesting to consider what effect counter-advertising, or education as to ways
in which food manufacturers’ advertising manipulates consumer choice, might have. In
particular, the persuasion knowledge model suggests that if children are educated as to the effect
food marketing has on their ability to make a free choice, they may reject such foods (Friestad
and Wright 1994). Such a school-based effort could be encompassed within the type of social
marketing campaign discussed below.
Social Marketing
In recent years, much effort has been expended to encourage Americans to accept
themselves “as they are.” Unfortunately, these positive social messages may act to reduce the
social stigma associated with failing to regulate one’s body weight, and therefore reduce
incentives to limit food consumption and increase exercise. Given that anti-tobacco advocacy
groups have been successful in changing public perception of smoking (Bayer and Colgrove
2002), messages that convey the benefits of being fit (e.g., increased energy, increased lifespan,
21
lower health care costs, etc. (Department of Health and Human Services 2000)) may have similar
success (California Department of Health Services 1998).
Conclusion
In 1999, an estimated 61 percent of US adults were overweight or obese, and 13 percent
of children and adolescents were overweight (Department of Health and Human Services 2001).
In 2001, there were nearly twice as many overweight children and almost three times as many
overweight adolescents as there were in 1980 (Department of Health and Human Services 2001).
Individuals who are overweight or obese are at increased risk for coronary heart disease, type 2
diabetes, endometrial, colon, postmenopausal breast and other cancers, as well as certain
musculoskeletal disorders, among other health condition (Department of Health and Human
Services 2001). The public health impacts of obesity must be addressed swiftly and effectively.
At the same time, this article suggests that lawsuits brought against food manufacturers
that seek to replicate the few successes enjoyed in tobacco litigation are unlikely to meet with
similar success. Recognizing both the complicated causes underlying the increasing number of
overweight Americans and the fact that that overweight individuals range from moderately
overweight to morbidly obese, marketers have a role to play in identifying different segments
among these consumers, and in developing effective messages to reach each segment. These
efforts should focus on identifying tactics that are most likely to change public consumption
habits and public attitudes towards overeating and under-exercising. Given that children form
life-long consumption habits starting at a very early age, it seems particularly fruitful to consider
how marketing messages in schools should be changed. Although lawsuits are unlikely to be
successful, this does not mean that anti-obesity advocates have nothing to learn from the tobacco
22
experience. Changing public perception of foods is not likely to be easy, and parallels from antitobacco social marketing seem likely to be fruitful.
23
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