The Bernstein Perspective: Obesity Battle Continues

No matter what customers actually buy, restaurants must offer healthful choices.

By Charles Bernstein, Editor-at-Large -- Chain Leader, 3/1/2005

The court suit that claimed McDonald’s food made two teen-agers obese and led to their health problems was dismissed in 2002 and again in 2003 by New York District Judge Robert Sweet. That should have been the end of it.

But the case has been sent to a three-judge U.S. Court of Appeals panel, which will allow the two youths to try to prove their contentions. They say they had eaten as much as three to five times weekly at McDonald’s. The suit, based on New York’s protection laws, asserts that the chain’s promotional representations from 1987 to 2002 “were to create the false impression that its food products were nutritionally beneficial and part of a healthy lifestyle if consumed daily.”

Industry Reaction
Richard Berman, executive director of the Washington, D.C.-based Center for Consumer Freedom, has repeatedly warned that trial lawyers would not let up on this situation and that there could be many lawsuits against restaurant operators. John Banzhaf, a George Washington University law professor, plans a wave of lawsuits, and “what happens in this case could open the floodgates,” Berman says.

“It is a shame that courts have to spend more time and money teaching a few money-hungry lawyers what the rest of us have known since kindergarten: that individuals are responsible for their own choices,” Berman declared. “Trial lawyers often see dollar signs where the rest of us see dinner.”

This lawsuit and other potential ones could result in what National Restaurant Association President and CEO Steven C. Anderson calls “yet another irresponsible attempt by the trial bar to vilify some of America’s favorite foods and options that meet any individual’s dietary needs.” He emphasizes that “the foodservice industry is under the gun from nutritionists and the federal government to stop super-sizing dietary menus and do more to contribute to the war against obesity.”

However, some who have tried feel it’s a losing battle. Richard Johnson, Ruby Tuesday’s senior vice president of brand development and growth, points out that when the chain reduced portion sizes last year, “we learned that customers didn’t respond so well to the smaller-sized pasta dishes, french fries and portion sizes on some entrees.” He says their reaction contributed to a loss in sales, prompting Ruby Tuesday to return to its traditional portion sizes.

Seeking Solutions
But offering more healthful foods still can be an answer to the threats of the obesity trial lawyers as well as satisfy customers. Witness the success of new menu options at McDonald’s, Burger King and Wendy’s, and, of course, Subway’s ongoing efforts.

Another hope to stop the lawsuit threats is legislation. Fourteen states have already passed bills that can block obesity lawsuits, and 12 more are considering this action, Anderson says. In addition, he is confident that the Bush administration will push for passage of House and Senate bills.

Whether the bills are passed or not, the restaurant industry must show that it means business in its healthful-food efforts for the benefit of consumers and that, ultimately, customers make their own choices.