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Food industry still wary after 'Cheeseburger Bill' victory

By Anthony Fletcher , 21-Oct-2005

This week's passage of the so-called Cheeseburger Bill looks like a straightforward victory for food makers, but the industry should still be wary over the possibility of future litigation.

The US House of Representatives easily passed the "Personal Responsibility in Food Consumption Act" - the Cheeseburger Bill - on a bipartisan 306 to 120 vote on Wednesday.

"Food manufacturers, marketers, distributors, advertisers and sellers should not be held liable for injury because a person's consumption of legal, unadulterated food is associated with the person's weight gain or obesity," said the White House in a statement.

As a result, the bill will block in state and federal courts "frivolous lawsuits against the manufacturers, distributors or sellers of food or nonalcoholic beverage products" arising from obesity claims. According to a Gallup Poll, nearly 90 percent of consumers oppose these types of lawsuits.

"The overwhelmingly bipartisan vote highlights the fact that lawsuits will not solve the complex issue of obesity in America.," said Grocery Manufacturers of America (GMA) president Manly Molpus.

The precedent for suing food manufacturers over health claims was set in 2002, when two New York teenage girls sued McDonald's, blaming the fast food chain for the girls' obesity, diabetes and hypertension. This was thrown out. But it would be a mistake for the food industry to start celebrating, even with the House's passage of the Cheeseburger Bill.

This is because lawyers are increasingly targeting the manner in which some companies advertise their products, claiming they breach fraud statutes by misleading consumers into thinking that certain products are healthy and nutritious when they are not.

Thus when New York judge Robert Sweet ruled that the teenagers suing McDonald's for making them fat knew the dangers of eating Big Macs and fries in 2003, the legal team promptly filed a revised lawsuit. This time, they alleged that McDonald's engaged in deceptive advertising, in part because it failed to adequately disclose additives and processing methods that make its food less healthy.

This change of tack is now picking up speed, with lawsuits increasingly setting aside what makes people fat and instead concentrating on how food was marketed or labelled.

In addition, some Democratic critics have voiced the opinion that the bill is unnecessary. State legislatures are already drawing up their own rules to prevent cases - 18 states have already banned these types of lawsuits, and legislation is pending in 27 others.

In Texas for example, House Bill 107 was created to prevent speculative lawsuits against the food industry, which threaten to engulf the sector. The bill's author, Rep. Corbin Van Arsdale, (R-Houston), called it "a preemptive strike on lawsuits against anyone up and down the food chain".

For the food industry however, the door to easy litigation cannot be closed too soon - at state or federal level.

"This legislation is a timely and needed response to lawsuits that seek to punish companies for an individual's personal eating habits," said the Food Products Association (FPA)'s executive vice president of government affairs and communications, Hunt Shipman.

"We fully recognize that obesity has become a serious national health concern, affecting both adults and children, but lawsuits against food companies are absolutely the wrong way to address this issue."

In the litigious US, more than 64 percent of adults are currently either overweight or obese and 16 percent of children are obese.

The Surgeon General recently put the cost of illness associated with obesity at $117bn in 2001, close to the average annual $150bn associated with smoking.

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