Editor’s Note: In this special issue, Informed Eating brings you reports from two conferences on legal strategies that took place last month. One was for food industry lawyers and the other, for public health advocates. Because there was too much material to cover in this short space, please feel free to contact me at Michele@informedeating.org with any specific questions you might have. And as always, all feedback and suggestions are welcome!

Also, I want to extend a special thank you to the generous supporter who recently sent CIFC a significant anonymous donation. Your much-needed contribution will go a way to help keep readers informed about the politics of food and encourages us to continue this important work!

Highlights from Food Industry Conference

The “Legal and Strategic Guide to Minimizing Liability for Obesity Conference: What Industry Counsel Need to Know Now” was held in Chicago on September 8-10. With about a hundred in attendance, all of Big Food was represented: McDonald's, Coca-Cola, PepsiCo, Kraft Foods, and Yum Brands (which owns Taco Bell, KFC, and Pizza Hut), just to name a few. Panels of defense lawyers presented on such topics as, “Obesity-Related Claims Against the Food Industry: Why the Threat Has Not Subsided,”  “Marketing and Advertising: Best Practices for a Creative Strategy in the Nutrition Wars,” and “How the Food Industry Can Capitalize on Lessons Learned From Tobacco and Drugs.”

Most of the sessions were very nuts and bolts, covering everything from product liability defenses, to advertising claims, to media messaging. Many presenters seemed quite concerned about the high number of public interest groups and plaintiff lawyers considering litigation, but then failed to give many specifics to back this up. Overall, the defense lawyers’ tone was to advise companies to behave responsibly, to avoid both litigation and legal action by federal regulatory agencies. The most common example of how to behave responsibly was to avoid lying in advertising, such as when KFC recently tried to claim that eating a bucket of fried chicken would result in weight loss.

Another major theme was stressing the importance of industry being part of the debate. Many references were made to how public interest groups and plaintiff lawyers were doing a great job of getting stories into the media that blame food companies for causing obesity. To counter this disturbing trend, panelists advised industry to get more involved with the media, not to let accusations go unanswered, to “control the debate,” and especially to portray themselves as being "part of the solution.”

Overheard – For the Defense

“Experts should be believable, down-to-earth, and likable. Line them up, get them on retainer before others do.” - Carol Hogan, Jones Day attorney, advising the food industry to hurry up and hire scientific experts to do their bidding.

“If people ate according to the Dietary Guidelines, there would be a drastic change in consumption. So, this makes for a very political process.” - Eric Olsen, attorney with Patton Boggs, giving an honest assessment of the USDA’s Dietary Guidelines for Americans.

 “This is a war, and we are not prepared. We need to get our message out. Otherwise, this is going to be a one-sided battle." - Brian Doster, vice president, Checkers Restaurant.
 

Beware of Industry Front Groups

One of the more interesting things revealed at this conference was the true motivation behind a survey called “Shaping America’s Youth" (SAY). On September 29, SAY released survey results from more than a thousand groups working on childhood obesity. But, according to a defense lawyer, SAY is really a “front group”, collecting information on public interest groups for industry’s benefit. Shaping America’s Youth calls itself “a partnership of government and private groups that plans to offer guidance on preventing and treating weight problems in children.” Its survey project is funded by Nike and Campbells Soup, endorsed by the U.S. Surgeon General, and backed by prestigious experts.

Throughout the conference, food industry lawyers kept referring to the figure of 1800 groups working on obesity. This was used as a scare tactic, to warn industry of the potential threat of litigation. But Shaping America's Youth just released (a full three weeks after the legal conference) the number of groups that have registered. So it seems that the industry lawyers had access to what was not yet public information about the number of groups that had responded to the survey. Also, industry is apparently duping public interest groups into providing details about their activities that can then potentially be used against them.

The survey questions are designed to gather information on who is doing what, how projects are funded, and how much money is being spent. The agency in charge of gathering the information is the Academic Network, who, according to their website, “works with leading pharmaceutical companies, healthcare organizations and food/beverage companies in developing effective communications strategies through consulting and telecommunications.” If you haven't done so already, please do not register for this survey and tell everyone you know about this scam. Also, please call on the experts listed as “advisors” to step down.

See www.shapingamericasyouth.com.

Highlights from Public Health Conference

Less than a week later, on September 17-19, the Public Health Advocacy Institute hosted its “Second Annual Conference on Legal Approaches to the Obesity Epidemic” at Northeastern University in Boston. While most people tend to only think of lawyers as pursuing litigation, this conference also covered other potential legal strategies, including federal regulations, state legislation, and even global treaties.

Kelly Brownell, author of “Food Fight” and director of the Yale Center for Eating and Weight Disorders, was the keynote speaker. He said that while last year, he was skeptical about litigation as a tool, after a year of trying to work with the food industry, he has since come around. He described three ways that he thinks the food industry is vulnerable: 1) promoting over-consumption; 2) preying on children; and 3) distorting the science. “We need to parade the science and say that industry is lying,” he said.

Marion Nestle, another veteran of the food wars and author of “Food Politics”, was also on hand to give an update on how far we’ve come since last year. She explained the importance of legal strategies in helping to shift the dialogue away from personal responsibility and instead emphasize environmental and policy solutions. In this sense, she said, legal strategies “permit, enable, and legitimize” this debate.

One interesting panel asked the question, “Are Some Foods Addictive? Preliminary research on rat intake of sugar water indicates the answer is yes. Also, Dr. William Jacobs, from the University of Florida, compared PET scans of people on cocaine with people overeating and saw no difference. He said that overeaters demonstrate typical addiction behaviors such as craving, loss of control, and relapse. Of the addictive nature of eating in some people, he said, “the evidence is there, and it is mounting.” Next, he is seeking funding to study the impact of food advertising.

The legislative panel featured a talk on “Fixing the Schools” (by Michele Simon), Sean Faircloth, a state representative from Maine, and Professor Katherine Pratt, of Loyola Law School, talking about excise taxes. Representative Faircloth gave an impassioned talk, explaining the six ways that government promotes obesity; for example, by giving corporations free reign to advertise to children and by directing billions of dollars in subsidies toward processed foods while neglecting fresh produce. He also turned industry’s “freedom of choice” argument on its head: “Our choices are limited by corporations and what they tell us,” he said. (For those living in Maine, Representative Faircloth is up for re-election in November and needs your vote!)

Overheard – For the Plaintiffs

“If you want to sue someone, call me.” - Stephen Gardner, recently-hired litigation director for Center for Science in the Public Interest.

“Many, many steps are needed, but not any of these.” - Marion Nestle, on the federal government’s “Small Steps” campaign aimed at individual behavior change.

“Give the kids a plum—something!” - Michael Jacobson, complaining about how the USDA’s Fruit and Vegetable Pilot Program is inadequately funded.
 

Obviously fed up with the lack of federal leadership, Michael Jacobson, director of Center for Science in the Public Interest, shook things up by laying into the government. He said that while regulatory agencies have the ability to impact obesity, they don’t. The motto in Washington, DC is, he said: “Think small, do little.”

For example, Jacobson explained, the Federal Trade Commission (FTC) has only four employees assigned to review advertising practices, and this has not changed for 20 years. As a result, they cannot conduct proper oversight. “The FTC should hold hearings and beat up on food companies,” he said. He had no kinder words for the Food and Drug Administration. What was their Obesity Task Force’s bold new policy measure? To increase the font size on nutrition labels! Jacobson suggested warning labels on soda, such as: “Warning: may cause obesity and diabetes; limit to 2 servings a day.”

As for the U.S. Department of Agriculture (USDA), Jacobson said they could put nutrition labels on meat and poultry, but they won’t: “The USDA does virtually nothing to promote a healthy diet. The food agencies in Washington, DC are directionless, spineless, and feckless,” he concluded.

Jacobson also warned us not to just focus on obesity and to be careful about calling for any one solution, because you can’t always prove that any one thing works. “The decks are stacked against us, so litigation may provide an answer—perhaps to hit industry in the head and get them to take voluntary steps,” he said. This sentiment was a recurring theme—that because other policy solutions are not working, advocates may turn to litigation as potential strategy to effect real change.

Thus, the panel that everyone was waiting for was on litigation. John Banzhaf, of George Washington University, explained how other movements began with legal action, because it “brings attention, galvanizes people, and puts pressure on legislatures to act.” He said that we are already seeing a shift in public perception, much faster than with tobacco.

Professor Banzhaf proposed a far-ranging list of potential defendants to sue, saying he doesn’t only want to target industry, but also: school boards, because they have a fiduciary duty to protect children; doctors, for not following proper recommendation guidelines for their patients; and even parents, for not protecting their children. But, not everyone agreed with all of these ideas. Finally, he admitted that, "We would all prefer legislation, but most legislators aren't active. So we need to put lawyers on it because money is what scares industry."

Other panelists discussed potential misleading advertising claims, especially those aimed at children. The consensus was that the food industry is most vulnerable when it comes to how it targets children.

In the conference wrap-up, host Richard Daynard announced plans for the third annual legal strategies conference in September of 2005, making clear that he and other lawyers are in this fight for the long haul. Stay tuned.

Select PowerPoint presentations are available at: http://www.phaionline.org/Conference2004Materials.html

Commentary

Strange Bedfellows Sell Out Schoolchildren's Health
By Carla Nino and Michele Simon, Ascribe Newswire, 09/27/04

Lawmakers in California have dealt the latest blow to the state's education system, but this time, it wasn't about test scores or classroom size, but children's health. On the last day of session, a bill that would have set nutrition standards on food sold in California public schools was defeated by only five votes. The junk food industry is of course ecstatic. But right by their side is an unlikely ally: the California School Food Service Association (CSFSA). This organization of school nutritionists, food managers, and educators has been strongly and actively opposed to every effort in California to establish nutrition standards on food and beverages sold in schools.

Full Article:
http://www.ascribe.org/cgi-bin/d?asid=20040924.101600

Upcoming Appearances

Michele Simon will speak on “The Politics of Food Safety” at City College of San Francisco’s Concert and Lecture Series, Monday, October 18, 11am-Noon, Ocean Avenue Campus, 50 Phelan Avenue, Science Bldg, Rm. 136. This event is free and open to the public.

If you’re at least 55 years old, you can sign up for a series of Michele Simon’s upcoming lectures starting October 20 on the politics of food. Hosted by San Jose State University’s Osher Lifelong Learning Institute, topics include the politics of nutrition advice and connecting the personal to the political. For details, see visit:

http://iesweb.sjsu.edu/searchprofdev/searchCourse.java.jsp?command=1&courseId=19249

Michele Simon will guest lecture at the University of California, Berkeley on “The Politics of Nutrition” on October 21, and on “Propaganda in the American Food Industry” on November 2.

Michele Simon is available for lectures and workshops in your community and can speak on a variety of food policy topics. For more information, visit: http://www.informedeating.org/lectures.html.

Seeking Local Stories of Battling Big Food

CIFC is currently gathering stories at the state and local levels where the food industry is attempting to block nutrition advocacy efforts. Many states, cities, and counties around the country are trying to pass nutrition-related legislation (e.g., limiting junk food in schools or imposing soda taxes), but the food industry is lobbying hard to either stop or curtail these efforts. If you know about any specific fights, we want to hear about them. We are also interested in stories related to soda contracts in schools. Please contact Michele Simon at: Michele@informedeating.org or (510) 465-0322. Thank you!

The Center for Informed Food Choices in a nonprofit organization that advocates for a whole foods, plant-based diet and educates about the politics of food.

CIFC is proud to make Informed Eating available as a free public service. Unlike industry publications, it is not underwritten by corporate sponsors. We would greatly appreciate your support for this newsletter and our other important policy work. For more information or to make a tax-deductible donation, please visit www.informedeating.org or call (510) 465-0322.

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2004 Informed Eating  -  All Rights Reserved