A lawsuit filed this week against Kentucky Fried Chicken (KFC) for its use of undeclared trans fats is a new indication that the issue is far from forgotten, even though the battle appears to have edged away from food processors for the time being.
The class action suit, filed in Superior Court in the District of Columbia, asks that the court prohibit KFC from using partially hydrogenated oil, or at least require signs warning consumers that many of its foods are high in trans fats.
Filed by a retired physician together with consumer advocacy group Center for Science in the Public Interest (CSPI) and the Washington DC law firm Heideman Nudelman & Kalik, the suit aims to increase awareness, following the 'if I had known I wouldn't have eaten it' line.
Food manufacturers have already made good progress in reducing artery clogging trans fatty acids (TFAs) from their products, spurred on first by a lawsuit brought against the maker of Oreo cookies, then by a change in labeling regulations this year, requiring levels of trans fats to be listed on processed foods.
But the foodservice sector has lagged behind, and is now paying for the delay.
"District of Columbia law allows consumers to seek relief from the courts when companies fail to disclose essential facts about their products. That KFC uses the worst frying oil imaginable to prepare its chicken is something that KFC should absolutely be required to disclose at the point of purchase," said CSPI litigation director Stephen Gardner.
"This lawsuit is meant to serve as wake-up call to the food industry that changes must be made to protect the consumer from known dangers to his or her health," added Richard Heideman, senior counsel of Heideman Nudelman & Kalik.
The foodservice was first challenged on this issue in 2003, when McDonald's was sued for reneging on its promise to reduce the amount of trans fats in its oils. Stephen Joseph, founder of the organization Ban Trans Fats and the attorney who brought the case to court, last year won an $8.5m settlement on the suit.
Joseph, who was also the one responsible for making Kraft remove trans fats from Oreos, in March told FoodNavigator-USA that this year he plans to switch his focus to restaurants.
"The packaged food industry has already had to deal with the consequences of labeling, and this has been very effective in guiding consumer choice in supermarkets. But the trans fats avoided through packaged goods are being consumed at restaurants, where there is still no guidance," he said at the time.
Joseph now says he has gives his full backing to CSPI's suit against KFC.
"Going to court is the only way to get heard. We have no other choice. It's not the ideal situation but at least we have rights in court," he said.
But the US Chamber Institute for Legal Reform (CILR) calls the CSPI a "narrow interest group" and says this week's lawsuit "perpetuates a dangerous climate that only invites more frivolous legal speculation and illustrates the need for major reform."
Nevertheless, the CSPI remains a strong voice for consumer safety in the industry, and has recently negotiated out-of-court settlements with Tropicana, Quaker, Frito-Lay and Pinnacle Foods. It was also a major player in the battle to get soda out of schools, and may also sue Kellogg for marketing junk food to children and Cadbury-Schweppes for rebranding its 7UP as 'natural'.
The group says it would prefer the current trans fat issue to be solved through voluntary action by restaurants or regulatory action by the FDA. "But neither industry nor government has acted. Hence this litigation."