Letter sent  to Burger King, KFC, McDonald's, Taco Bell, and Wendy's fast food restaurant corporations to put them on legal notice that new research about the addictive effects of fattening food may require the corporations to post a health warning or other appropriate informational notice to avoid possible legal liability for failing to make this disclsoure

Thursday, June 19, 2003

Burger King Corp.                    CERTIFIED MAIL            
5505 Blue Lagoon Drive
Miami, FL 33126                    RECEIPT REQUESTED        

Suggestion That a Warning Notice May Be Necessary to Avoid Potential Legal Liability

Dear Sirs:
        This letter will put your corporation on legal notice of a growing body of evidence that foods of the type served at your fast food restaurants may produce additive like effects, and of the consequent need to consider posting a health warning or other appropriate informational notice to avoid potential legal liability.  

        My colleagues and I in the growing movement to use legal action as a weapon against the epidemic of obesity want to be sure that your corporation is fully aware of, and on notice about, this recently research.
        This research strongly suggests that, as recently summarized in the respected publication, NEW SCIENTIST, at least some fast foods “can act on the brain the same way as nicotine and heroin.”  The article – Burgers on the Brain: Can You Really Get Addicted to Fast Food?- The Evidence is Piling Up, and the Lawyers are Rubbing Their Hands – summarizes  this evidence, including studies in which withdrawal symptoms were induced in laboratory animals.
        The associated editorial comment – A High With Your Fries?: Even If Fast Food Is Not As Additive As Tobacco, It Still Merits A Health Warning – suggests the need for a  health warning or other appropriate informational notice to customers who, unlike those within your trade or business, might not otherwise be aware of this important new information.

        As you probably know, the legal duty to warn or inform customers does not arise only when evidence of possible harm is conclusive and generally accepted by the scientific community.  Rather, it occurs whenever the information might be relevant to a reasonable person making a purchasing decision.  That’s why, for example, we see many notices saying simply that “some evidence suggests that . . “ or that “animal studies indicate that X might cause cancer,” etc.  

        It is also the same reason that doctors must warn patients of even a remote risk suggested by a single scientific study, even if the study hasn’t yet been replicated and/or is apparently contradicted by other studies or by conventional scientific or medical wisdom.  In short, such notice is required to alert customers to the mere possibility of a risk so that they can evaluate the weight of the evidence for themselves and then knowledgeably exercise their own personal responsibility.

         As you might already know, several courts have held that cigarette manufacturers may be held liable for failing to disclose that their products might produce addictive effects, even though the general health dangers of smoking were so well known as to be regarded as common knowledge. See State of Texas v. American Tobacco Co., 14 F. Supp. 2d 956, 966 (E.D. Tex. 1997); Castano v. American Tobacco Co., 961 F. Supp. 953, 958 n.1, 959 (E.D. La. 1997); American Tobacco Co. v. Grinnell, 951 S.W.2d at 429-31 (Sup. Ct TX ); and Burton v. R.J. Reynolds Tobacco Co., 884 F. Supp. 1515, 1525-26 (D. Kan. 1995).

        By analogy, even if some courts should find that the general dangers of eating fatty and calorie-rich foods at your fast food restaurants are likewise common knowledge, liability for causing obesity and its related diseases may nevertheless be premised on the theory that the public is much less aware of the possible addictive-like effects of many fast foods than they are of the widely-publicized addictive nature of nicotine in cigarettes.  For these reasons, it may be prudent for your corporation to consider what health warnings or informational notices about the possible addictive properties of fast foods are appropriate in light of this and other related research.
        To assist your corporation in assessing its potential legal liability for failing to promptly provide a health warning or other informational notice about the new evidence showing possibly addictive effects of your food, and to put you on notice of the problem, I am enclosing excerpts from the NEW SCIENTIST article.
 [ http://banzhaf.net/docs/newsci.html ] For more general information on this type of liability, please see: http://banzhaf.net/obesitylinks
        Moreover, in light of these scientific studies, it may also be prudent for your fast food company to review its policies and practices to be sure that nothing it and/or its franchisees are doing could possibly be construed by a jury as seeking to take advantage of and/or enhance the possible addictive properties of their foods.  Changing the cooking temperature so as to increase the amount of fat absorbed during cooking, adding sugar to foods like french fries where it is not ordinarily expected, secretly adding appetite stimulants etc. might well seem to jurors like the activities of cigarette manufacturers to increase (“spike”) the addictive effects of their products.  

    This, as you recall, had devastating effects when the tobacco companies were sued for causing  smoking-related diseases, even though the dangers of smoking were allegedly “common knowledge” and the plaintiffs allegedly were on  notice of the risks of using their products.  Since fast food restaurants such as yours appear likely to offer substantially the same arguments if sued for contributing to the obesity of adult or child plaintiffs, it might be prudent to avoid anything which might even give the impression that your company is seeking to enhance or otherwise make use of the allegedly addictive like properties of fattening foods.
                            Yours truly,
                            Prof. John F. Banzhaf III
                            Professor of Public Interest Law
                            http://banzhaf.net ; http://banzhaf.net/obesitylinks

CC:     Ad hoc “Litigation as a Weapon Against Obesity” Group
CC:      Distributed at the “Legal Approaches to the Obesity Epidemic" Conference of the
             Public Health Advocacy Institute, Northeastern University, Boston, June 22-23, 2003