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Food Giants Fear Lawsuits over Pushing Junk Foods

Commercial Alert June 13, 2002

A major battle is brewing in the United States and across the globe
about the marketing of junk food and how to reduce the incidence of
marketing-related diseases such as obesity, diabetes and cardiovascular

The World Health Organization (WHO) is leading an excellent public
health effort on this issue, but is facing stiff opposition from the
U.S. junk food industry and their political allies.

Commercial Alert is working to prevent marketing-related diseases, and
to support this superb WHO initiative.

Following are five items:

(1) Today's Wall Street Journal article: "Is Food the Next Tobacco?: As
Obesity Concerns Mount, Companies Fret Their Snacks, Drinks May Take the

(2) Industry letter to Tommy Thompson, Secretary of Health & Human
Services, attacking the World Health Organization's draft report on
"Diet, Nutrition and the Prevention of Chronic Diseases."

(3) Commercial Alert's coalition letter in support of the WHO draft

(4) Link to WHO's draft report on "Diet, Nutrition and the Prevention of
Chronic Diseases."

(5) What you can do to help.

Following is an article in today's Wall Street Journal.,,SB1023915670931417880,00.html?mod=todays%5F

Wall Street Journal 6/13/02

Is Food the Next Tobacco?: As Obesity Concerns Mount, Companies Fret
Their Snacks, Drinks May Take the Blame
By Shelly Branch

Fearing they may be held responsible for the nation's expanding
waistline, U.S. food and beverage makers are going on the defensive with

Some packaged-food companies are contemplating advertisements that would
discourage consumers from overeating their products. A handful are
giving exercise equipment to schools and expanding the
health-and-wellness information on their Web sites. And others, mindful
of tobacco's litigation woes, are mulling legal issues in case they are
accused in lawsuits of fomenting a burgeoning national health crisis.

Though U.S. food manufacturers cite a long tradition of supporting
health-related causes, their concerns have been escalating since
December, when a Surgeon General's report warned that obesity rates in
the U.S. had reached epidemic levels and called for a "national plan of
action." Indeed, obesity may soon pass tobacco as the leading
preventable cause of death; some 300,000 Americans died of
obesity-related causes in 2000. Lawmakers are considering a wide range
of proposals, including levying taxes on junk food aimed at kids and
requiring specific label codes for high-sodium and high-fat foods -- all
of which the food-trade groups vigorously oppose.

Last month, the Grocery Manufacturers of America, the powerful
food-trade group whose members ring up annual sales of more than $460
billion, urged a congressional panel not to blame individual foods as
the cause of America's weight gain. The Senate panel is considering the
Improved Nutrition and Physical Activity Act, which would authorize
programs teaching better eating and exercise habits in schools and
communities. Such programs "will go a lot further in attacking this
obesity problem than making accusations and finger pointing," GMA
spokesman Gene Grabowski says.

But the industry is getting some early legal jabs. A handful of lawsuits
have accused food companies, large and small, of deceptive marketing.
Sued for billing its french fries as vegetarian, even though they are
made with a beef flavoring, McDonald's Corp., recently said it would
donate $10 million to Hindu groups and others in the U.S. as a partial
settlement. A similar complaint against Yum! Brands Inc.'s Pizza Hut
unit, alleges that the company concealed the use of beef products in its
"vegetarian" pizzas. A Pizza Hut spokeswoman says the company doesn't
market its "Veggie Lover's" pizza as vegetarian. And DeConna Ice Cream
Co., owner of Big Daddy Ice Cream, faces a class-action lawsuit in
Florida for understating the product's fat-and-calorie content.
Attorneys for the company acknowledge the mislabeling, which they say
was an unintended "mistake."

While the current litigation mainly targets companies for allegedly
misleading claims, not for selling fattening foods per se, some legal
experts see the cases as the DNA for future obesity suits. In a sign of
what may lie ahead, Richard Daynard, head of the Tobacco Products
Liability Project at Northeastern University Law School, is working with
students to develop possible strategies that could be used to bring
obesity-related claims against food makers.

"There are obviously great differences between food and cigarettes,"
says Mr. Daynard. "But there are some crucial similarities." Among them,
he says, are marketing to children and enlisting researchers to dispute
claims about the unhealthful properties of certain ingredients. The
project was founded to promote litigation against the tobacco industry
as a public-health strategy.

Food makers and their legal teams are generally reluctant to talk about
potential lawsuits related to obesity. But many eyes are on Philip
Morris Cos., the tobacco giant that owns 84% of Kraft Foods Inc., maker
of snack staples such as Oreo cookies, Oscar Mayer hot dogs and
Lunchables. As part of the tobacco industry's legal settlements with all
50 states, Philip Morris is likely to pay out more than $100 billion
over a 25-year period.

William S. Ohlemeyer, a Philip Morris associate general counsel who
oversees litigation, says he's skeptical that suits against food makers
could succeed, given the legal and factual hurdles that would have to be
overcome. "The courts have shown remarkable hostility to class actions
and health-care reimbursement lawsuits" in tobacco cases, something that
would probably be the same for food-related claims.

The facts are also different, he says. "The relationship between
cigarette smoking and lung cancer is more direct and easier to prove in
a litigation environment than the relationship between eating certain
foods or not eating certain foods and obesity," he says. There are lots
of "alternative causes," he adds -- such as lack of physical activity
and individual physiology -- that combine to produce obesity.

Even outspoken nutritionist Marion Nestle, author of the book "Food
Politics," which claims the food industry and its marketing are much to
blame for overconsumption, acknowledges that food isn't addictive as
cigarettes are -- a key fact that helped tobacco plaintiffs win cases. A
recent report commissioned by the GMA, which speaks on behalf of major
food companies, said that a "spare tire" is a "personal problem, not an
industry issue." The report, released earlier this year, included
results from a survey asking about 1,000 consumers "who is responsible"
for obesity. It found that 57% of respondents blamed "individuals
themselves," rather than food manufacturers (5%) restaurants (2%) and
other causes.

Nevertheless, food-and-beverage makers aren't sitting idle. Michael
Mudd, head of Kraft corporate affairs, now devotes roughly a quarter of
his time to the obesity issue -- going on fact-finding missions with
public-health experts, and giving talks on the subject both internally
and to outside food-industry groups. He says that in the past year,
Kraft has greatly expanded its Web site with health and wellness
information. "It is in our best interest for people to use our products
in a healthful way," Mr. Mudd says.

As part of a test program, Coca-Cola Co. recently gave middle-school
students in Atlanta, Houston and Philadelphia step-counting pedometers
to promote competitive exercise games among nonathletic kids. PepsiCo
Inc., whose brands include Frito-Lay snacks and Quaker cereals, is
teaming up with fitness guru Dr. Kenneth Cooper to form the
PepsiCo/Cooper Aerobics Center partnership that will, among other
things, work to develop healthier food products. Pepsi also is looking
at substitutes for some of the high-fat oils and other ingredients used
in its snack products.

The growing sense of urgency was particularly evident last month when
the major U.S. food-industry groups banded together to challenge a
preliminary World Health Organization report endorsing taxes on
sugar-rich items aimed at kids, stricter marketing rules and specific
label codes for high-sodium and high-fat foods. "The Report should not
be disseminated in its current form," said the letter, which was
addressed to Health and Human Services Secretary Tommy Thompson. "If
this were to be done, it would cause significant harm to important
segments of the U.S. food industry..."

In recent months, food-and-beverage marketers also have begun to discuss
a raft of so-called social-marketing measures. Among them: airing
public-service announcements about health and eating in moderation; and
funding new in-school physical-fitness programs.

Not everyone is likely to greet such efforts with open arms. Some
nutritional experts already have voiced skepticism that food makers will
be able to play a meaningful role in slimming down America's youth.
"Physical activity is important, but it's only half of the equation,"
says Kelly Brownell, director of Yale University's Center for Eating and
Weight Disorders. Adds Margo Wootan, director of nutrition policy at
Center for Science in the Public Interest: "Their products contribute to
obesity. You just can't exercise enough to eat some of these foods and
maintain a normal weight."

Food companies and their supporters are prepared to challenge
detractors. The restaurant industry-backed Center for Consumer Freedom
two weeks ago placed a full-page ad in U.S. News & World Report blasting
what it calls the "food police." The ad cheekily suggests that these
critics must believe Americans are "too stupid" to make their own food
choices. "We're seeking to make sure that people have the other side of
the issues than those presented by activist groups," says the group's
founder, Rick Berman.

<-------article ends here------->

Following is an industry letter to Tommy Thompson, Secretary of the
Department of Health & Human Services.

May 3, 2002

The Honorable Tommy G. Thompson
Secretary of Department of Health and Human Services
Hubert H. Humphrey Building
200 Independence Avenue, SW
Washington, DC 20201

Dear Mr. Secretary:

We are writing to express our concerns about the draft Report of the
Joint WHO/FAO Expert Consultation on Diet, Nutrition and the Prevention
of Chronic Diseases to you and to those in other departments and
agencies of the Executive Branch who are responsible for dealing with
these policies. Knowing that your agency will be leading the U.S.
delegation to the World Health Assembly later this month, we would like
to share our concerns with you so that they may be taken into
consideration within the interagency process as the U.S. positions are
being formulated. If your findings are in accord with ours, we hope
that you will inform Director-General Brundtland that the United States
believes that this document should be substantially modified before
being issued by WHO and the FAO.

The Report purports to address the relationship between diet, nutrition
and various non-communicable diseases, and is based on an Expert
Consultation that took place in early February in Geneva. We do not
disagree that the subject matter of the Report is a serious issue and
requires serious study by an organization such as WHO and FAO. However,
we believe the lack of transparency in the preparation of the Report,
the failure to adhere to sound science, and the extraordinary breadth of
the recommendations, raise such important issues that the Report should
not be disseminated in its current form. If this were to be done, it
would cause significant harm to important segments of the U.S. food
industry and to the food industries of developing countries. In
addition, release of the current Report would harm the credibility of
the global effort to develop sound policies to deal with the link
between obesity and chronic disease.

In the first instance, we are greatly concerned about the lack of
transparency in the consultation process. The draft Report was
distributed for review to the food industry in early April with a
request for comments within two weeks. Although additional time has
been granted, the extension of time is not adequate to address the many
issues raised. Furthermore, it appears that no scientific consultant
representing the views and knowledge of industry was invited to
participate in the Expert Consultation. Such exclusion is indicative of
bias and suggests a predetermined outcome for the consultation. This is
inconsistent with the role of the two United Nations standard setting
organizations. If the Report is to merit serious consideration, all
stakeholders -- including industry -- should have an opportunity to
participate fully in the consultation process.

The Report also fails to adhere to a sound science precept. It cites
studies that are contrary to other findings or that are of questionable
validity. For example, a large body of epidemiological literature shows
carbohydrates in general, and added sugars in particular, are not
associated with overweight and obesity. Analysis of U.S. Government
data and the 1998 FAO/WHO Joint Report on Carbohydrates in Human
Nutrition support these findings. However, the study used in the recent
Consultation as a basis for the Report's claim that soft drinks are
linked to obesity in children has been criticized widely for its
protocol limitations and poor quality data, thus limiting the validity
of its conclusions.

Of greatest concern, however, is that many of the policy recommendations
in the Report have no scientific underpinnings and it appears that no
economic or policy experts participated in the Consultation. No
evidence is offered that might support the potential effectiveness of
the Report's recommendations on marketing restrictions, taxation and
subsidy policies. To date, there is no evidence that individual
behavior, such as dietary habits, food choices, and the desire to be
physically active, can be manipulated by mandates of legislative bodies
or coercion by regulators. In fact, actual experience with taxes and
subsidies demonstrate that neither are efficient means of achieving the
goal of changing food patterns. Taxes frequently have long-term,
indirect, and unforeseen effects that are cumbersome and costly to
implement. Moreover, there are perverse impacts that contradict the
purposes for which they were intended, placing the heaviest burden on
the world's subsistence population.

Certain aspects of the draft Report oversimplify food production
systems. With regard to food policy, there is no recognition in the
Report of the improvements in health of populations as a result of
harvesting, storing, preserving, and processing seasonal surpluses of
commodities, which are transformed to basic, palatable, nutritious, and
affordable foodstuffs by the food industry.

The weakness of the Report's scientific findings combined with unwise
social and economic policy recommendations will do little to provide
governments with effective means to deal with the global obesity
problem. Moreover, the Report recommends involvement of the Codex
Alimentarius Commission in the promulgation of its recommendations, and
in so doing, proposes a shift in focus well beyond that body's mandate
for food safety and in support of fair practices in trade into a
political realm.

As we noted at the outset, we agree that the issues this consultation
Report attempts to address are matters of great importance for the
global health community. However, the process by which this draft
Report and its resulting recommendations have been developed undermine
any potential value of the Consultation and the credibility of WHO and
FAO. It is critically important for the U.S. Government to make its own
assessment of the Report, including the question of whether it is
appropriate for WHO and FAO to enter the fields of fiscal, economic and
educational policy to the extent they have done in this document. Our
view is that this document should be substantially modified before being
issued by WHO and the FAO.

We appreciate your consideration of our request and will be happy to
provide any additional information that may be helpful in this regard.
A copy of this letter is also being provided to Secretary of State Colin
L. Powell, Secretary of Agriculture Ann M. Veneman, and United States
Trade Representative Robert B. Zoellick.

Sincerely yours,

American Advertising Federation
American Association of Advertising Agencies
American Bakers Association
American Feed Industry Association
American Frozen Foods Institute
American Meat Institute
Animal Health Institute
Biotechnology Industry Organization
Consumer Health Care Products Association
Council for Responsible Nutrition
Frozen Potato Products Institute
Grocery Manufacturers of America
International Dairy Foods Association
International Council of Grocery Manufacturers Associations
National Confectioners Association/Chocolate Manufacturers Association
National Council of Chain Restaurants
National Grocers Association
National Restaurant Association
National Soft Drink Association
Snack Food Association
Wheat Foods Council
US Chamber of Commerce
US Council for International Business
<--------letter ends here--------->

Following is Commercial Alert's coalition letter to Tommy Thompson, in
support of the WHO initiative.

May 10, 2002

The Honorable Tommy G. Thompson
Secretary of Health and Human Services
U. S. Department of Health and Human Services
200 Independence Avenue SW
Washington, DC 20201
Via telecopier (202) 690-7203

RE: Joint WHO/FAO draft report on "Diet, Nutrition and the Prevention
of Chronic Diseases"

Dear Secretary Thompson:

We are writing to urge you to support the joint World Health
Organization (WHO)/Food and Agriculture Organization (FAO) draft report
and recommendations on "Diet, Nutrition and the Prevention of Chronic
Disease." The draft report was issued on April 26, 2002.

As you know, United States citizens and people around the world are
suffering and dying from alarming rates of advertising-related and
diet-related chronic diseases, such as obesity, diabetes mellitus,
cardiovascular disease, hypertension, and stroke. These diseases are
frequently worsened by the marketing and consumption of too much
high-fat, high-sugar, high-calorie junk food and foods of low
nutritional value, and the lack of physical exercise.

The joint WHO/FAO report encourages countries to adopt policies to
reduce the health toll of these chronic diseases. Such policies include
advertising restrictions, adequate food labeling, promotion of physical
exercise, increased nutritional education and restrictions on marketing
of junk food to schoolchildren.

The joint WHO/FAO draft report and policy recommendations will help
lessen the chronic disease burden both in the United States and across
the world. It deserves your strongest support.


Peter Barnes, Co-founder, Working Assets
Charles Bell, Programs Director, Consumers Union
Stephen Bezruchka, MD, MPH, Affiliate Associate Professor, Department of
Health Services, School of Public Health and Community Medicine,
University of Washington
Kelly Brownell, PhD, Professor of Psychology, Yale University; Director,
Yale Center For Eating & Weight Disorders
Brita Butler-Wall, PhD, Executive Director, Citizens' Campaign for
Commercial-Free Schools
California Public Health Association – North
Joan Claybrook, President, Public Citizen
Ronnie Cummins, National Director, Organic Consumers Association
Donald R. Davis, PhD, Research Associate in Nutrition, Biochemical
Institute, University of Texas
Montgomery Elmer, MD, President, Fox Valley Physicians For Social
Leon Eisenberg, MD, Professor of Social Medicine Emeritus, Harvard
Medical School
Cathey Falvo, MD, Program Director, International & Public Health,
School of Public Health, New York Medical College
Mike Feinstein, Mayor, City of Santa Monica
Green Party of the United States
Joan Gussow, EdD, M. S. Rose Professor Emeritus, Nutrition and
Education, Teachers College, Columbia University
R. Scott Hanson, MD, MPH, President, Rhode Island Public Health
Michael F. Jacobson, PhD, Executive Director, Center for Science in the
Public Interest
Carden Johnston, MD, Chair, Task Force on Commercialism in the
Classroom, Alabama Chapter, American Academy of Pediatrics
Timothy J. Kasser, PhD, Associate Professor of Psychology, Knox College
Dennis Keeney, Emeritus Professor of Agronomy and Agricultural and
Biosystems Engineering, Iowa State University
Michael Kieschnick, President, Working Assets
Ronald M. Krauss, MD, Senior Scientist, Life Sciences Division, Lawrence
Berkeley National Laboratory; Adjunct Professor of Nutritional Sciences,
University of California, Berkeley
Velma LaPoint, PhD, Associate Professor of Human Development, Howard
Diane Levin, PhD, Professor of Education, Wheelock College
Jane Levine, EdD, Founder, Kids Can Make A Difference
Susan Linn, EdD, Associate Director, Media Center of the Judge Baker
Children's Center; Instructor in Psychiatry, Harvard Medical School
JoAnn E. Manson, MD, DrPH, Chief of Preventive Medicine, Brigham and
Women's Hospital; Professor of Medicine, Harvard Medical School
William J. McCarthy, PhD, Adj. Associate Professor of Psychology, UCLA
Bob McCannon, Executive Director, New Mexico Media Literacy Project
Robert McChesney, PhD, Research Professor, Institute of Communications
Research, University of Illinois at Urbana-Champaign; author, Rich
Media, Poor Democracy
Mary Anne Mercer, DrPH, Senior Lecturer, University of Washington School
of Public Health and Community Medicine
Mark Crispin Miller, PhD, Professor of Media Ecology, New York
Diane M. Morrison, PhD, Research Professor & Associate Dean for
Research, University of Washington School of Social Work
Ralph Nader
Marion Nestle, Professor and Chair, Department of Nutrition and Food
Studies, New York University; author, Food Politics
Peggy O'Mara, Editor and Publisher, Mothering Magazine
Jonathan Parfrey, Executive Director, Physicians for Social
Responsibility-Los Angeles
Alvin F. Poussaint, MD, Professor of Psychiatry, Harvard Medical School
Sheldon Rampton, Editor, WWW.PRWATCH.ORG
John Rensenbrink, U. S. Representative, Global Green Network
Kyle Richmond, Supervisor, Dane County Board, District 27, Madison, WI
Mark Ritchie, President, Institute for Agriculture and Trade Policy
Dick Roy, Executive Director, Northwest Earth Institute
Gary Ruskin, Executive Director, Commercial Alert
John Stauber, Executive Director, Center for Media & Democracy
Michael Traub, ND, President, American Association of Naturopathic
Susan Villani, MD, Medical Director, Schools Programs, Kennedy Krieger
Institute; Assistant Professor of Psychiatry, Johns Hopkins University
Geoffrey Wilkinson, Executive Director, Massachusetts Public Health

cc: The Honorable Kevin E. Moley, Permanent Representative of the US to
the European Union Office of the United Nations and other International
Jack Chow, MD, U. S. Department of State
William R. Steiger, U. S. Department of Health and Human Services
Derek Yach, MD, World Health Organization
Ann Blackwood, U. S. Department of State
David Fleming, MD, Centers for Disease Control and Prevention
Eve Slater, MD, U. S. Department of Health and Human Services
Bob Wood, U. S. Department of Health and Human Services
David Hohman, U. S. Mission, Geneva
James Heiby, MD, U. S. Agency for International Development

-----letter ends here---->
about the WHO initiative on "Diet, Nutrition and the Prevention of
Chronic Diseases," see:

Please contact HHS Secretary Tommy Thompson, and ask him to support the
WHO initiative on "Diet, Nutrition and the Prevention of Chronic
Diseases." Please tell Secretary Thompson that:

(1) The WHO initiative will protect public health across the planet from
the marketing of junk food and promotion of marketing-related diseases;

(2) The WHO initiative and public health are more important than profits
for the junk food and advertising industries.

You can email Secretary Thompson via his chief of staff, Bob Wood, at

Commercial Alert's mission is to keep the commercial culture within its
proper sphere, and to prevent it from exploiting children and subverting
the higher values of family, community, environmental integrity and
democracy. For more information about advertising, marketing and
commercialism in schools, see Commercial Alert's website is at

Commercial Alert's materials are distributed electronically via our
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Gary Ruskin |
Commercial Alert |
Congressional Accountability Project |
phone: 503.235.8012 | fax: 503.235.5073
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