Law professor John Banzhaf, whose pioneering consumer health litigation stirred recent class-action lawsuits against fast food chains, said he is not upset with a federal judge’s Jan. 23 dismissal of a case against McDonald’s. The suit claimed McDonald’s is responsible for causing obesity, diabetes and other health issues in young children.

Banzhaf called the highly publicized ruling a shallow victory.

“It’s the second best opinion we could get from the judge,” he said. “He gave us 30 days to collect more concrete evidence and to come up with a more specific pleading, which means he believes the case is not frivolous.”

Others disagreed. Mike Burita, of the D.C.-based organization Consumer Freedom, called the ruling a “victory for McDonald’s and restaurants.”

“The judge left the back door open for a follow-up lawsuit,” Banzhaf said. He said U.S. District Judge Robert Sweet wrote a 65-page opinion docket detailing the type of evidence he needs to consider the case serious.

Banzhaf said he believes sufficient evidence exists to charge McDonald’s, Burger King, KFC and other fast food chains with both deliberately attracting young children to their higher-calorie products and deceiving the public about nutritional information.

“I intend to use the 30 days to find information taken from studies and focus groups that will implicate the fast food chains in knowingly catering their most unhealthy foods to children,” he said. “I know the facts are out there.”

The complaint against McDonald’s was filed Aug. 22, 2002 on behalf of two obese eight-year-old girls, Ashley Pelman and Jazlen Bradley, in the New York State Supreme Court by attorney Sam Hirsch.

Banzhaf, while not an attorney on the case, acts as an adviser and researcher for Hirsch.

Consumer Freedom advocate John Doyle, who told The Hatchet in August 2002 that “the suit will be laughed out of court,” said he was not surprised with the ruling.

Doyle said one of the girls in the suit said she ate at McDonald’s four times a week and consumed more that 8,000 calories a week of the recommended 14,000 at the fast food restaurant.

“Where’d she get the other six thousand calories? It all comes down to parental choice and protection of their children,” he said. “You can’t blame the McDonald’s for the girls’ obesity.”

“If I fed my kids only carrots, they would surely die,” he said. “Should I blame the carrot farmers for their death?”

Despite criticisms that food chains are not to blame for poor parental judgement, Banzhaf said he believes he has a solid case, pointing to evidence that dietary information is not readily available to consumers.

“People don’t know what they are getting,” he said. “When I ask people what has more total fat and calories, a cheeseburger or chicken nuggets, they almost always say the burger. Wrong. The nuggets do.”

The educational level of customers plays a large role in their understanding of the health risks of eating food high in fat and calories, Banzhaf said.

“Much of the information posted in the restaurants on dietary content in relation to recommended daily calorie intake … is written in statistics and confusing figures that an uneducated person will surely have a difficult time understanding,” he said.

Well known for his breakthrough litigation against the tobacco industry, Banzhaf began researching facts on obesity in America last year. A reporter brought to his attention a surgeon general’s report in December 2001 comparing obesity rates and taxpayer costs for medical care to the harm and cost caused by smoking.

“Each year, medical care for smokers costs taxpayers $140 billion and 430 thousand smokers die from smoking-related illnesses. Comparatively, $117 billion is spent on medical care for obese people and 300 thousand die,” he said.

For Banzhaf, litigation is still a viable solution to the problem.

“We could force the fast food industry to pay a quarter on every dollar they make to help buy time for ads that speak of the health risks of excess fast food,” he said.

Among other litigation options, Banzhaf plans to sue Coca-Cola and middle and high schools and their school boards for allowing Coke and McDonald’s to give them “pouring rights,” a percentage of the company’s profits, to push their product.

“The younger kids don’t understand the consequences of a consistent diet of soda and fast food,” he said. “And when McDonald’s is their only tasty option at the food line, that’s what they are naturally going to pick. They don’t know better.”
Banzhaf said the tobacco industry is still the number one public enemy.

“As the proliferation of obesity continues, fast food chains are quickly becoming public enemy number two,” he said.