War on Fat Gets Serious
From statehouse to courtroom, the fight against obesity gains momentum. And now the feds are jumping on the bandwagon.
By Melissa Healy
Times Staff Writer

January 3, 2004

So, you're one of the 190 million Americans who are overweight.

You're trying to shed the extra pounds, but your resolve is under daily assault. The all-you-can-eat buffets. The convenience of drive-through. Supersizing. The comfort of fat and sugar. The lure of the couch.

All right, then. Meet your new weight-loss team: There's Deborah Ortiz, state senator; John D. Graham, federal regulator; Richard Banzhaf, attorney; Margo Wootan, nutritionist and government activist. There are more, too, but you probably don't know them. But they are on your case, filing briefs, drafting legislation, writing memos and holding news conferences. Determined to help you and your loved ones lose that weight and keep it off.

They are the new warriors in a national fight against fat, and they have decided that it takes a village to trim a waistline. If the increase in obesity is to be reversed, they believe, Americans must have better exercise venues, more nutritional information and improved access to healthy food that is as inexpensive and convenient as the stuff that helped to make us fat. Overweight consumers should be offered incentives to help lose the extra poundage. And government should help in the fight.

Representatives of the food and restaurant industries deride these fat fighters as scolds and food cops, bent on inviting Big Brother to America's meals and celebrations.

"The public is just not prepared to be dictated to in this regard," says Richard Berman, executive director of the Center for Consumer Freedom, an advocacy group supported by about 150 restaurant and food companies.

Americans want easy, affordable meals and tasty snacks, Berman says, dismissing claims that the food industry is tricking consumers into unhealthful eating habits. All of us know, he says, that if we eat too much and don't exercise enough, we're going to get fat. And we also know how to lose the weight.Your weight-loss team, however, is undeterred.

Margo Wootan, of the Washington, D.C.-based Center for Science in the Public Interest, says that at the end of a decade in which obesity rates have risen 50%, the time has come for government activism in the fight against fat. Excess weight and obesity contribute to the premature deaths of 300,000 Americans annually - not far behind tobacco's yearly death toll of 430,000.

Fat is the fastest-growing cause of disease and death in the United States today, and that has set off alarms bells in every quarter of government, Wootan says.

"We'll see more," she predicts - more litigation, more debate and more lawmaking, from Washington on down to local school boards. Americans, she contends, will welcome the help. "Most people want to eat better, but they find it difficult."

Your new fat-fighting allies plan to wield a few sticks - carrot or otherwise - as well. After all, if fat is the new Public Enemy No. 1, then those who do not join the fight (and who cost the country $117 billion per year in additional health-care costs) may need more inducement to get on board.

In the brave new world that public health activists hope to create, you would pay a special tax on Ho Hos, Big Macs and other foods high in fats or sugar. An obese person would pay more for health insurance than someone of appropriate weight and would have no legal recourse if passed over for a job because of their weight. And your favorite junk food would return to the test kitchen to have its fat removed because its manufacturer would be worried about being sued.

And everywhere you would turn for a bite, whether at restaurants or at home, you would see fat and calorie counts and consumer warnings. Imagine, in small type, something like, "The surgeon general has warned that excessive consumption of foods high in fat and calories will lead to obesity, which is associated with increased risk of diabetes, heart disease and certain kinds of cancers."

If the warning sounds familiar, it's no coincidence. Lawyers, lawmakers and activists determined to reduce obesity have modeled their campaign on the nation's anti-tobacco crusade - a nearly 40-year effort that has helped drive down smoking among American adults from about 42% in 1965 to about 25% today.

The starting place for both movements is the same as well. In 1964, U.S. Surgeon General Luther L. Terry set the cornerstone for what would become a national anti-smoking movement, calling cigarette smoking a "health hazard" and a matter of "national concern." In December 2001, Surgeon General David Satcher issued a "call to action" on obesity, and the fat-fighting movement has built on that foundation.

Noting that being overweight and obese "may soon cause as much preventable disease and death as cigarette smoking," Satcher added that "there is much that communities can and should do to address these problems."

Richard Banzhaf, a mild-mannered George Washington University law professor and anti-tobacco crusader, heard Satcher's call and thought he might have the answer. Banzhaf gathered together public health activists and trial lawyers in the summer of 2002 to discuss fighting fat the public policy way.

Since then, Banzhaf has been cajoling attorneys across the nation to drag fast-food chains and snack-food giants into court and make them pay for making us fat.

Banzhaf sees litigation as a way to raise public awareness about the role of corporations in public health and to clear the political path for lawmakers and regulators to mandate change. And, he says, a hefty payout in a lawsuit can quickly effect sweeping changes in the marketplace.

Meanwhile, state legislators across the country are busy writing laws aimed at fighting fat.

Sen. Deborah Ortiz (D-Sacramento) led a legislative victory in California that, starting this year, will ban sodas from vending machines in the state's elementary and middle schools.

New York legislators are considering a bill to require chain restaurants to include on the menu the calorie, fat, carbohydrate and sodium content of meals. Lawmakers in Maine are considering a similar measure, plus another that would allow health insurance companies to offer 20% discounts to people who are within their ideal weight range. Across the country, almost a dozen states have acted recently to repeal exemptions that candy, bakery goods and soft drinks have long had from state sales taxes.

Federal officials also have signed on to the weight-loss team, and some of its newest members work for President Bush.

In an administration dedicated to rolling back regulation, John D. Graham, a White House budget maven and Harvard University public health professor, recently ran an insurgent campaign to require food manufacturers to display the trans-fat content of their products on nutrition labels.

Graham won over skeptics in the administration by demonstrating that many label-reading Americans, when warned about these man-made, artery-clogging fats, would avoid them and many food manufacturers would remove them. The result, said Graham, would be "a multibillion-dollar effect in health benefits." The new federal regulation will take effect in 2006.

Health and Human Services Secretary Tommy G. Thompson has made fighting fat both a bully pulpit issue and a personal crusade by shedding 15 pounds, wearing a pedometer everywhere and urging people to eat less and exercise more.

Thompson has said publicly that communities, not the federal government, should lead the fight against obesity. But behind the scenes, he has taken a key step.

In mid-July, Thompson directed staff members to resolve the feasibility and legality of "differential health insurance," which would reward those in group health-care plans for maintaining a healthy weight.

Although insurance companies have been eager to use inducements to discourage obesity, many have been reluctant to do so, fearing that they would constitute illegal discrimination. But if the federal government were to give its legal blessing, many companies would offer discounts to people who successfully control their weight - or charge more for those who don't.

While state and federal officials look for ways to slim down their constituents, the most controversial part of the anti-fat campaign is playing out in courtrooms. In the last three years, Banzhaf says, lawyers have brought eight lawsuits to test the theory that those who make or serve fattening foods should be held legally liable for making us fat.

Banzhaf concedes that courtroom victories have been modest. Five lawsuits have been settled out of court, one was thrown out by a federal judge and two are in limbo as the lawyers pressing them ponder whether to proceed. But in a few cases, the suits have nudged the targeted corporations to offer consumers more nutrition information and better dietary choices. In that sense, they have been a success, Banzhaf contends.

As part of one settlement, Kraft Foods promised to change its recipe for the Oreo, the cookie that is the standard-bearer of its snack food line, to remove trans-fatty acids. In another case, which was thrown out of federal court in New York, the high calorie and fat content of McDonald's Chicken McNuggets was an issue; in early October, McDonald's announced it was reformulating its McNuggets recipe to make the product leaner.

A similar thing happened after New York City's public school system was sued unsuccessfully last year for allowing children to buy sugary sodas and high-fat snacks at school. The suit alleged that those running the schools were failing their legal duty to protect students' health. In spite of the suit's failure, New York schools this year removed such foods and drinks.

"These companies are saying, look, this litigation has potential," says Banzhaf. "Fat could be the next tobacco, and it's enough of a threat to do something about."

In Washington, Banzhaf's litigation strategy has drawn enough attention that in mid-July, Sen. Mitch McConnell (R-Ky.) introduced legislation to protect the food industry from lawsuits alleging that its products are responsible for obesity and weight gain. Although the Senate is not expected to act on McConnell's bill, some believe it may be reflected someday in Republican-backed reforms to limit damage awards in civil cases.

"Personal injury lawyers … are now trying to convince Americans with expanding waistlines that someone else is to blame for their weight problem," McConnell said on the Senate floor, describing his proposal. "And so the latest targets of predatory lawyers are the people producing and selling food…. If it weren't so frightening, it would be funny."

All this activity has kept the Center for Consumer Freedom busy. The center, which represents a sprawling network of restaurateurs, food processors, grocers and corporate giants such as RJR Nabisco, has mobilized lawyers, lobbyists and publicists to fight the new anti-obesity crusaders. On the Internet, in public appearances and in widely aired advertisements and commentaries, the center has relentlessly - and with humor - poked fun at the lawsuits and legislation as the meddling of a self-appointed "food Taliban" bent on hijacking Americans' food choices.

In one political spot that ran on cable TV last summer, a slick attorney bears down on a defendant for enticing unsuspecting consumers to eat her cookies. "You make them taste good on purpose, don't you?" the trial lawyer asks accusingly. "I guess so," responds the frightened Girl Scout.

A lobbying effort mounted by the center last summer also helped to thwart a measure by Ortiz in California that would have required nutritional labeling by chain restaurants. Ortiz said the state Senate Health Committee clearly felt the heat: When it came time for a vote, she said, several members left the room, sinking the proposal.

But Ortiz's success in limiting the sale of sodas in elementary and middle schools underscores that when it comes to kids, Americans may accept governmental help more readily.

School boards across the country are ordering the removal of snack foods high in sugar and fat from vending machines, revamping the nutritional content of school lunches and reinvigorating physical education programs.

Arkansas last year passed a law requiring health report cards - including a measure of a child's body/mass index - for all public school children there. And proposals expected to pass the legislatures in Maine and New York would require all chain restaurants with kids' menus to offer at least one children's meal with fewer than 22 grams of fat.

Harold Goldstein, executive director of the California Center for Public Health Advocacy, says children are a good place to start in a national war against obesity. The rate of overweight children has shot up fourfold since 1963 among those age 6 to 19, and with it the incidence of Type 2, or adult onset, diabetes.

In California today, more than one child in four weighs too much, and if the trend continues, an entire generation will grow up with higher rates of heart disease, high blood pressure, diabetes and certain cancers.

Concerted government action could rescue kids from a lifetime of obesity, says Goldstein, and save the nation billions of dollars in future health-care costs.

In addition to those arguments, says Goldstein, adults and public institutions have a special responsibility to protect children from physical harm. Kids, he says, have become pawns in a great food marketing scheme and will suffer the consequences if their elders do not step up.

"We as adults have the responsibility to protect the environments of our children, and the fact that schools have become a marketing free-for-all has become very injurious to them," Goldstein says.

But in a society in which snack-food makers and restaurant chains collectively pour millions into developing and marketing fattening products, we all need help, he adds. The lone dieter, he says, doesn't stand a chance without a social consensus that fat is bad and getting rich off fat is intolerable.

And forging that consensus, by all policy means necessary, is where your weight loss team begins the fight.

"The question is, how can we as a community, society, country come together and say we all see the challenge and see that the individual cannot [do] this on their own?" Goldstein says.