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
Thursday, June 19, 2003
Burger King Corp.
5505 Blue Lagoon Drive
Miami, FL 33126
RE: LEGAL NOTICE REGARDING ADDICTIVE PROPERTIES OF FAST FOODS
Suggestion That a Warning Notice May Be Necessary to Avoid Potential Legal
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.
] 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.
Prof. John F. Banzhaf III
Professor of Public Interest
CC: Ad hoc “Litigation as a Weapon Against Obesity”
CC: Distributed at the “Legal Approaches to the
Obesity Epidemic" Conference of the
Public Health Advocacy Institute,
Northeastern University, Boston, June 22-23, 2003