What we have now is a situation that is quickly escalating into a potentially major threat, not only against fast food companies but also against beverage and snack companies and, for that matter, any company that produces or sells a food product that does not conform to what various state legislatures deem "nutritious."
 On June 17th, a lawyer named John Banzhof III -- one of the architects of the strategy that attacked Big Tobacco -- sent a certified letter to all major fast food chains demanding that they display warning signs in each of their outlets advising consumers that fast foods can be addictive.
Without any substantiation whatsoever (except perhaps "The Twinkie Defense"), the letter contends that there is a "growing body of evidence" that indicates that fast food "can act on the brain the same way as nicotine or heroin." In a USA Today interview, Banzhof noted that the letters are the first step in a process that will result in the chains being sued within the next 6-9 months.
The attack strategy -- which is now aimed squarely at fast food, soft drinks, candy and snack manufacturers -- appears to be a two-pronged movement:
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- First, use the already-proven lawsuit approach that brought Big Tobacco to its knees
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- Second, legislate people's -- and, especially, children's -- eating choices.
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To be successful, the first strategy requires proving four claims:
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- That the companies involved (e.g., McDonald's, Burger King, KFC, Wendy's, etc.) know the product is bad for you (a la cigarettes)
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- That the companies knowingly concealed this information
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- That the companies "created" helpless victims who could not resist the addictive qualities of the product
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- That there are actual living examples of these "victims" who can personally attest and "prove" the damage done to their bodies and health by these companies' willful negligence and failure to disclose.
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To achieve the second strategy, special interest groups are needed to lobby legislators. The most vocal anti-fat citizen's group is the Center for Science in the Public Interest (CSPI). The CPSI currently advocates taxing soft drinks much in the same way as states have taxed cigarettes on the principle that high prices will limit consumption, particularly among children and teenagers.
Other CSPI proposals call for "a five percent tax on new televisions and video equipment" (to slow down viewing we suppose) and "a $65 tax on every new vehicle or an extra penny tax per gallon of gasoline" – to encourage more walking and therefore slow obesity.
CSPI and groups like them have achieved some success:
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- California -- always the lead state in "protecting" its citizens -- just got a law through the state senate this month that will eventually phase out the sale of all soft drinks (including diet soft drinks) in the entire California school system. The sponsor of the bill -- Deborah Oritz -- also has a bill waiting in the wings that would require all chain restaurants in the state to slap nutritional information on every item in any meal sold.
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- Maine -- the repository for aging hippies-turned-clay-pot-makers -- and now, the fattest state in New England -- has legislation pending as we write this that would: a) ban the sale of chewing gum, candy, food or drinks that are 35 percent or more sugar from all schools; b) prohibit the sale of all soft drinks in elementary and middle schools, and c) prohibit the sale of soft drinks containing sugar or caffeine in high schools. The sponsor of this bill -- Representative Sean Faircloth, a Democrat from Bangor -- was apparently able to completely disassociate himself from the potential behavioral impact of these bans when he recently told a Maine reporter that his favorite meal is "a double cheeseburger, fries and a Coke."
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- Other states (or cities) that have recently (2003) proposed similar legislation are Minnesota, Missouri, New York, Seattle, Houston and, of course, New York City.
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This is not to say that the American obesity problem is not real. By some counts, over 120MM people are either overweight or obese. (Overweight, according to the CDC, means a Body Mass Index of 25.0 to 29.9 while "obese" is anyone having a Body Mass Index of 30 points or greater.)
Currently, the CDC estimates that almost two-thirds of U.S. adults between the ages of 20 and 74 are overweight – an astounding gain of 32 percentage points since 1980 (although the government has changed the base on which overweight is calculated). Thirty percent of adults are considered to be "obese" which in plain language means thirty pounds or more over what the CDC considers to be a normal healthy weight.
Pretty much the same pattern applies to children between the ages of 6-19. Between 1980 and 2001, the percentage of overweight children more than doubled from six percent to 15 percent.
The question is: does litigation and legislation work to cure our bad habits or merely add to the coffers of the lawyers and beleaguered state budgets?
Consider what happened in the years leading up to the passage of the Volstead Act of 1919, when splinter groups and guilt-ridden legislators coagulated to prohibit the production and sale of alcohol beverages in an entire country. The pattern started out much like the examples we have cited in this article:
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- Alcohol was portrayed as the destroyer of families and marriages, particularly among factory workers who purportedly would spend all of the family's money on alcohol, leaving their wives with no money to support the children.
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- Temperance societies, factory owners and "progressives" advocated for more government control and began to pass laws on a local level. By 1914, 14 states had prohibited alcohol. By 1919, this had grown to 26 states and by 1920 -- the year the Volstead Act went into effect -- 33 states had signed up. While the majority -- all those folks who drank alcohol -- remained cautiously silent and relatively unorganized, the splinter groups grew exuberant and even wrote such memorable songs as Lips that Touch Liquor Shall Never Touch Mine and I Never Knew I Had a Wonderful Wife Until the Town Went Dry.
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The exultation of the anti-alcohol advocates was short-lived. While alcohol consumption did drop at first (as much as 30-50 percent, depending on the beverage) -- the attempt to legislate behavior fostered the largest single concentrated sustained crime wave in this country's history.
By 1925 -- only five years after the country "went dry" -- almost 100,000 speakeasys had opened up in New York City alone. By 1929, Al Capone's income from illegal alcohol was estimated to be over $60MM. Gangsters, in general, became the "heroes" of the American movie landscape. When the Volstead Act was finally repealed in 1933, violent crime dropped 65 percent in the balance of the year versus what it was in 1932.
The War on Drugs and the War on Tobacco have had equally dismal results.
Now let's translate this to fast food, soft drinks, salty snacks and candy. Let's assume, for a moment, that to "save the nation" from its "addiction" to these foods and consequent obesity, the states coagulate and eventually get the federal government to pass "The McDonald's Act" which prohibits the sale of these foods to any adult who falls into the CDC's classification of "overweight" and to all children and teenagers.
What should a smart marketer in these categories do? Start now! Make potato chips in the shapes of peas and carrots, offer hip flasks as premiums with your soft drinks, or establish a chain of Twinkie dens.
This way, if John Banzhof, who predicted last year that "obesity lawsuits will be the wave of the future," is right, we'll be prepared.
Christopher W. Hoyt is President of Hoyt & Company LLC, a packaged goods training and consulting organization based in Scottsdale, AZ. Chris may be reached via his web site at www.hoytnet.com
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