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Child Obesity Studies Pave Way for Junk Food Ad Lawsuits

The United States is the fattest nation in the world. We're also the most litigious. It's time for these two giants to meet.

Two recent studies related to childhood obesity point to new hope for health-related lawsuits against "Big Fat" companies, like McDonalds, KFC and other makers of fast-food. In particular, junk food advertising may be on the chopping block.

According to a study conducted at the University of Dundee in Scotland, kids who have a gene linked to an increased risk of obesity often display a tendency to eat more fattening foods. Seems logical, but read on.

Yet another new study published in the Journal of Law & Economics reports that banning junk food commercials would reduce the number of obese young children by 18 percent. Some experts believe this is the first national study to show fast-food TV commercials have a big impact on childhood obesity. Given that one third of U.S. kids are overweight or obese, according to the Center for Disease Control and Prevention, a reduction of this magnitude would be huge in terms of promoting public health.

In the past, fast-food litigation has garnered a lot of publicity but not much success in the courtroom.

In 2002, a New York man filed a class action product liability suit against McDonalds, Burger King, KFC, Wendy's for selling fatty foods that caused obesity and a number of other health problems.  In 2006, a Maryland doctor sued Yum! Brands over their use of transfat in KFC food. Both suits were ultimately dismissed.

According to law professor Anthony Sebok, product liability lawsuits against 'Big Fat' are not effective because it is difficult to show that junk food as a product is defective. "It is also hard to convince a jury that the lack of explicit warnings is a problem; everyone knows junk food is bad for you," Sebok said.

Instead of claiming a defective product, targeting junk food advertising may be a successful legal strategy. "A theory under which youth advertising is a form of actionable fraud already exists." Sebok explains. "If the facts are there to support it, such a theory could be used against Big Fat, too. But the question is whether the facts are there."

The two new obesity studies suggest that facts are now available to support a theory that junk food ads aimed at youths is fraudulent. Here are just some of the combined facts:

• The gene linked to obesity, named FTO, was discovered in 2007, a year after the latest fast-food suit was dismissed.

• People with FTO gene tend to overeat high-calorie foods.

• Fast food commercials account for as much as 23 percent of the food-related ads kids see on TV.

• Youths are impressionable and usually receive special consideration in court.

Courts have regulated the advertising of certain dangerous products. Alcohol, firearms and tobacco products all carry some form of advertising restriction. Although further studies are necessary to fully explore the theory, the U.S. may soon bear witness to some kind of regulation of fast-food/junk food advertisements. At very least, we should expect to see someone try this tactic in court.

• Fast-Food Restaurant Advertising on Television and Its Influence on Childhood Obesity

• Childhood obesity (Mayo Clinic)

• Obesity Threatens a Generation (Washington Post)

• Childhood Obesity (American Obesity Association)

Full post as published by FindLaw's Common Law on December 11, 2008 (boomark / email).