Is junk food the next tobacco?
By Michele Simon

Originally published in the Oakland Tribune, June 8, 2021

SEVERAL well-known lawyers who led the charge against the tobacco industry will soon hold their first Conference on Legal Approaches to the Obesity Epidemic. With recent reports showing that the medical costs associated with obesity are fast approaching those of tobacco, the media are now paying more attention to an idea they might have laughed at just a few years ago. While lawsuits grab headlines, other legal tactics might have even greater potential to reign in Big Food. And yet public health advocates should be cautious about unintended consequences of proposed regulations. The food industry's greatest vulnerability is how it targets children. Ultimately, a sound legal strategy should emphasize carefully planned state and local policy reform, with a healthy dose of public shame. Lawsuits certainly attract media attention. The first-ever class-action suit against McDonald's was filed recently on behalf of children who suffer health problems as a result of eating McDonald's food. Advocacy lawyers like to say that if you can't legislate, litigate. In other words, because government is so beholden to industry that it can't do a proper job of protecting the public through regulation, we are left with no other recourse but to turn to the courts. But can litigation successes against the tobacco industry be repeated with junk food?

Food is a more complex issue to litigate. For one, the connection between tobacco and lung cancer is far stronger than the connection between eating fast food and heart disease or other chronic illnesses. Also, most smokers stick to one brand of cigarettes, so it's easy to single out the one company to go after; not true with food. And while lawyers are likely to claim that junk food has an addictive quality similar to nicotine, the scientific evidence isn't there yet. Health related lawsuits also suffer from a huge public relations challenge: the personal responsibility mantra. Already, industry reaction is playing into Americans' deep-rooted ethic that we are each responsible for our own choices. So a litigation strategy focusing on how the junk food industry preys on small children is more likely to be successful. Other drawbacks to litigation are that it comes too late, after the damage is done, and it's extremely costly and time consuming. However, litigation does have the potential to expose evidence of corporate misconduct, and that can be critical to shifting public opinion.

The restaurant industry battled to be exempt from the federal "Nutrition Facts" labeling law passed in 1992. Now, the Center for Science in the Public Interest, the same organization that pushed for that law, is calling for regulations -- both at the state and federal levels -- to require chain restaurants to list nutrition information on their menus. So far, a handful of states have such bills pending. Advocates pushing for nutrition and warning labels should consider the legal posture the food industry is likely to take in future lawsuits. Warning labels on cigarette packages allowed tobacco companies to claim smokers had "assumed the risk," a legal defense that means consumers had the relevant information and still acted against their own interest. Similarly, food companies are likely to use nutrition labeling as examples of "full disclosure" to insulate them from liability. Other proposed statewide legal strategies include sales taxes on sodas or junk foods. While so-called "fat taxes" might be an appealing way to raise revenue for much-needed nutrition education, the long-term consequences of a strategy that relies on the continued sale of products we are trying to dissuade people from purchasing should be carefully considered.

AS WITH litigation, other legal strategies are likely to garner more public support where the food industry has targeted children. Hardly a week goes by without another report about the skyrocketing rates of childhood obesity or diabetes. As a result, local school districts are beginning to restrict junk foods such as sodas and candy. These efforts are gaining momentum. California and many other states around the country have bills pending to limit junk foods in schools.

Local policy reform efforts from the tobacco arena such as curbing advertising aimed at children and zoning restrictions near schools also have great potential with junk food. However, such efforts face a formidable distinction: Selling cigarettes to minors is illegal; selling junk food is not.

The food industry is a formidable foe, many times larger than tobacco. Key shifts in public perception helped win the fight against tobacco. Public health advocates need to combine all the tools they have -- litigation, regulation, public relations and shame -- in a carefully planned strategy to change public perception of the junk food purveyors. The stakes are too high to turn back now.

Michele Simon is founder and director of the Center for Informed Food Choices, a nonprofit organization in Oakland dedicated to raising awareness about the politics of food. She is also an attorney.