Obesity: legal developments

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 are obese.

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 label.

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 less.

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 advertising.

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 liability.

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 promoted.