Fast-Food Restaurants Face Legal Grilling ; Lawyers Explore Whether the Fast-Food Industry Should Be Liable for the Effect Its Meals and Marketing Have on Public Health

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For decades, Caesar Barber ate hamburgers four or five times a week at his favorite fast-food restaurants, visits that didn't end even after his first heart attack.

But his appetite for fast food didn't stop Mr. Barber, who is 5 foot 10 and weighs 272 pounds, from suing four chains last month, claiming they contributed to his health problems by serving fatty foods.

Even the most charitable legal experts give Barber little chance of succeeding. But his suit is just the latest sign that the Big Mac may eventually rival Big Tobacco as public health enemy No. 1 in the nation's courts.

Lawyers who successfully challenged cigarette manufacturers have joined with nutritionists to explore whether the producers of all those supersize fries and triple cheeseburgers can be held liable for America's bulging waistlines.

Prompted by reports that the nation's obesity is getting worse, lawyers as well as nutrition, marketing, and industry economics experts will come together at a conference at Northeastern University in Boston to discuss possible legal strategies.

They're looking at whether food industry marketing - particularly messages aimed at kids - may be misleading or downright deceptive under consumer protection laws, says Richard Daynard, a Northeastern law professor and chair of its Tobacco Products Liability Project. They'll also consider the more complex question of whether the producers of fatty foods - and even the public schools that sell them - should be held responsible for the health consequences of eating them.

Medical professionals argue that too much unhealthy food is sold by using tempting messages that encourage overeating. "People are exposed to a toxic food environment," says Kelly Brownell of Yale's Center for Eating and Weight Disorders. "It really is an emergency."

The figures are certainly startling. Obesity can be linked to some 300,000 deaths and $117 billion in health care costs a year, a report by the Surgeon General found last year.

Such numbers prompted President Bush to launch his own war on fat this summer, calling on all Americans to get 30 minutes of physical activity each day.

But fast-food industry representatives are quick to say, "Don't just blame us." Steven Anderson, president of the National Restaurant Association, a trade group, says attorneys who attempt to compare the health risk of tobacco with those of fast food are following a "tortuous and twisted" logic.

"All of these foods will fit into [the] diet of most Americans with proper moderation and balance," he says.

To be sure, there are big differences between tackling food and tobacco. Any amount of tobacco consumption is dangerous but everyone has to eat, Mr. Daynard says. And few if any foods are inherently toxic.

What's more, while there were only four or five tobacco manufacturers, there are thousands of food manufacturers and restaurants serving some 320,000 different products, says Marion Nestle, a professor of nutrition and food studies at New York University .

People usually smoke one brand of cigarette. They eat in many restaurants and eat the same foods at home. That makes it almost impossible to prove that a person's obesity or health problems are caused by a particular food or restaurant.

As a result, suits such as Barber's that attempt to pin the blame for weight-related problems on specific plaintiffs will run into difficulty in court, says Steven Sugarman, a law professor at the University of California, Berkeley. …


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