Whose fault is it that we’re fat? More
people in the world are now obese than are malnourished: one in
four men and one in five women. And it’s not just an adult
affliction: one in 10 six year-olds and one in 6 fifteen year-olds
This is not mere plumpness or love handles: it
takes more than the odd plate of choc-ice with chips to have a body
mass index greater than 30kg/m2 – the official obesity
threshold. And the cost can be more than just upsizing your
wardrobe: a recent health select committee report warned that
obesity reduces life expectancy by nine years on average and will
soon surpass smoking as the greatest cause of premature loss of
life. It also increases the risk of diabetes, cancer and heart
disease to mention but a few of the associated health risks.
In the US, there have been predictable attempts to
blame the food industry. In 2003 (Pelmans v. McDonald’s),
McDonald’s successfully resisted claims that its food was
inherently dangerous and addictive and caused obesity and diabetes
among a group of teenagers. However, the judge indicated that
manufacturers could be liable in negligence to consumers who are
denied the necessary information to make a free choice. In this
case, the claimants could not establish that their consumption of
McDonald’s caused the injuries they claimed to have suffered
and the case was struck out in the preliminary stages.
There are parallels with tobacco litigation that
may tell us the future of obesity litigation in the US: the
manufacturers’ arguments that consumers are making a free and
informed choice may be countered by evidence suggesting that
certain convenience foods produce a change in brain structure
similar to that caused by drug addiction, and that the information
necessary to make such a choice has been withheld.
However, publicity may be an even bigger help than
the good ol’ American jury. In California, an attempt was
made to ban Oreo Cookies, produced by Kraft Food Inc, because they
contained trans-fats: a hydrogenated vegetable oil that increases
the type of cholesterol linked to an increased risk of coronary
heart disease. Oreos were singled out because Kraft had not reduced
the amount of trans-fat while manufacturers of rival products had.
It was argued that consumers were not aware of the risks from
trans-fats and should have been warned about them on the product
The publicity generated by the lawsuit served to
raise public awareness of trans-fats and the claim was withdrawn.
However, the US Food and Drug Administration was still prompted to
take action, introducing a requirement for trans-fat labelling with
effect from 1 January 2006.
In Europe, the first stirrings of consumer
litigation can also be seen: in Germany, a claim was brought
against Haribo by someone alleging she had suffered a breakdown due
to a heart rhythm disorder brought on by excessive consumption of
liquorice produced in king size packets.
The claim was rejected because, as a matter of law
(in this case, the German law giving domestic effect to the EU
product liability directive), manufacturers are not liable for harm
resulting from excessive consumption of a product.
While it is the consumer’s responsibility to
eat a balanced diet, manufacturers nonetheless have a duty to warn
them about product risks arising during normal, expected
consumption. Haribo was not expected to assume that consumers would
eat the entire contents of a packet at once, so selling the product
in smaller quantities would not have guaranteed that she consumed
In the UK, the recent government white paper
Choosing Health took a different line, recommending that
manufacturers should reduce portion sizes – as a voluntary
measure. This could make it easier to argue that
‘super-sizing’ portions involves a breach of a duty of
care to consumers in the UK.
Apart from proposals to restrict the promotion of
foods to children, most of the measures suggested in the white
paper are voluntary. However, they are coupled with a warning that
legislation will follow if, by 2007, they have failed to bring
about the desired change in the nature and balance of food
promotion to children.
The white paper suggests three broad areas for
voluntary improvement: manufacturers should develop healthier
products; adopt advertising and pricing strategies to encourage us
to eat them; and improve the information they give us through
nutrition labelling and the inclusion of healthy eating advice in
It also suggests the use of signposting – a
yet-to-be-agreed measurement of nutritional content – to be
included on all food packaging. This has aroused controversy due to
concerns that the signposts may offer a misleading and subjective
view of the nutritional value of a specific food as opposed to the
promotion of a healthy diet as a whole.
A Food and Health Action Plan is to be published in
early 2005. This may not go as far as recommending government
health warnings about high fat, sugar, salt or calories but it will
be a step in that general direction.
In general, consumers already know that eating food
with too much sugar, salt or saturated fat can lead to health
problems. However, making positive health claims about food is an
altogether different matter. The Food Labelling Regulations 1996
already prohibit claims that any food can prevent, treat or cure a
disease and, later in 2005, EU regulations are expected to be
introduced which will impose restrictions on claims about the
nutritional value and healthy properties of food. Breach of the
regulations will be a criminal offence and possibly create a civil
Some companies have already acted to improve the
nutritional quality of their products and introduce new ranges of
healthy dishes. Controversially, in France, McDonald’s
published adverts telling parents not to let their children eat
excessive amounts of junk food nor to visit McDonald’s more
than once a week.
So far in the UK, it has not been so bold,
preferring to stress healthier options. However, this has also
resulted in adverse publicity: in the Which? editorial for December
2004, an advert by McDonald’s was singled out as the
editor’s favourite misleading advert: ‘…the
Advertising Standards Authority said McDonald’s was wrong to
say of its chips: “We peel them, slice them, fry them and
that’s it.” It turns out it also adds salt, mixes in
dextrose solution – and partially fries some of them in other
countries before flying them here.
These are health conscious times: the placing and
promotion of all foods and consumer products must be caefully
thought through, in case it backfires on the product being