"Coronary In Cone" Companies Threatened
With Law Suits
For Failing to Warn About Artery-Clogging Fats and Calories
Six major ice cream parlor chains have
been put on legal notice that they may be sued if they don't begin disclosing
just how much artery-clogging fat and calories their offerings contain, especially
by children shopping alone who lack adult knowledge and judgment, and who
may be particularly susceptible.
The move comes in the wake of four
successful "fat law suits"; recent moves by Kraft, McDonald's, Frito-Lay,
and other companies to respond to concerns about obesity litigation; more
information about the size and severity of pediatric obesity; growing legal
pressure forcing major school districts to ban or cut back on serving fattening
foods and drinks to students; and the discovery that at least one ice cream
parlor already provides this information to customers old and young.
"While many people know that ice cream
isn't a diet food, many don't appreciate - because they aren't really being
told - just how bad it is, says public interest law professor John F. Banzhaf
III who authored the letter with Michael F. Jacobson, Ph.D., Executive Director
of Center for Science in the Public Interest.
Prof. Banzhaf suggests that most people
are unlikely to suspect that:
■ one ice cream cone, even without any ice cream, can
contain half a day's worth of saturated fat
■ a frozen yogurt advertised as "fat free" actually contains
11 grams of fat and far more calories than it claims
■ a frozen yogurt advertised as "96% fat free" still contains
a quarter-of-a-day's worth of saturated fat
■ a single ice cream sundae can contain two whole day's
worth of saturated fat
■ drinking one milk shake can be like eating three McDonald's
Quarter Pounders
"McDonald's learned the hard way that
failure to disclose a 'material fact' - something which consumers might not
know or appreciate - can create millions of dollars in potential liability,
even if the fact is of interest only to a very small fraction of their customers,"
said Banzhaf. He referred to the company's failure to disclose that
its french fries contained minute amounts of beef fat, something which was
of interest only to Muslims, Hindus, and vegans. Similarly, three supermarket
chains recently were sued for not disclosing that the coloring they had added
to their salmon didn't indicate that the fish were wild rather than farm
raised.
"Patrons of ice cream parlors, including
adults but especially children, cannot be expected to exercise personal responsibility
unless they are given appropriate nutritional information - as they are when
they look at nutrition labels in food stores - about how fattening and fat
clogging a product is," argues Banzhaf.
Children who get diabetes - as one
third of them now will - which was caused in part by eating ice cream which
they may have known was fattening, but never dreamed might have two day's
worth of saturated fat, or by thoughtfully selecting 'fat free' frozen
yogurt only to find out later than it contains 11 grams of fat; or by not
realizing that even an empty ice cream cone can contain half a day's worth
of saturated fat, can and probably will be able to recover appropriate damages."
The fact that one ice cream parlor
does list the calorie, fat, protein, and carbohydrate content on the glass
display case over each tub of frozen dessert shows that even those
within the industry recognize that the public not only doesn't know but also
needs this very information. It also shows that providing it doesn't
put them out of business; it simply allows consumers to make a knowledgeable
choice as they do now when they compare two different ice creams - or an
ice cream and a frozen yogurt - in a food store.
Letters threatening legal action by
"concerned consumers, legal action organizations, or even state officials"
are being sent out today by "Certified Mail, Receipt Requested" to Baskin-Robbins,
Ben & Jerry's, Cold Stone Creamery, Friendly's, Haagen-Dazs, and TCBY.
"While the warnings may come too late
to affect their operations this summer," says Banzhaf, "the companies cannot
assume that they will have a litigation-free summer of 2004 if they continue
peddling desserts with unsuspectedly large amounts of artery-clogging fat
without any real warning. Jurors told how at least one chain of ice
cream parlors is already providing this information will naturally wonder
why all customers are not entitled to the same level of protection.”
COPY OF LETTER FOLLOWS. For more information, see: http://cspinet.com/
CERTIFIED MAIL - RECEIPT REQUESTED
The enclosed article in the July-August issue of the Nutrition Action Healthletter,
which is published by the Center for Science in the Public Interest (CSPI),
discusses the nutrient content of products sold by your and other ice cream
chains. The data are based primarily on company data, supplemented by tests
conducted by CSPI.
The findings of the article are disturbing, because all but a few products
(such as plain sorbets, low-fat ice cream, and frozen yogurts) provide dangerously
large amounts of calories and saturated fat, which promote obesity, heart
disease, and other serious medical problems in both children and adults.
Some of your larger “snacks” provide upwards of 1,000 calories. That
is more than a healthy meal’s worth of calories, and, together with soft
drinks, hamburgers, fries, and a multitude of other high-calorie foods, is
a prescription for obesity, especially for young children, since their caloric
needs and tolerances are less than those of adults.
Consumers can’t exercise personal responsibility without clear, conveniently
available nutrition information - information that is available at the “point
of sale” when decisions are made, not buried inconveniently on a web site
(to which customers certainly do not have access while waiting in line) or
in hard-to-find and hard-to-read brochures or notebooks. Such information
would enable consumers to make informed choices before buying 250-, 500-
or even 1,000-calorie items.
Nutrition information is especially important because children make up a
disproportionately large percentage of patrons of ice cream parlors and usually
lack the knowledge, maturity, and judgment to appreciate the risks of eating
foods high in calories and saturated fat. As you know, children often
go to ice cream parlors without adults, either going there by themselves
or while a parent is shopping nearby. Many children are already very
concerned about their weight and calories—either because they are already
overweight and have been counseled to reduce their caloric intake or, especially
in the case of girls, because of generalized concerns about gaining weight.
In both situations, a significant percentage of children likely would be
interested in the calorie contents of your offerings and, given readable,
accessible information, might choose treats with fewer calories. Therefore,
the moral - and perhaps even legal - obligation to provide complete and accurate
nutrition information about your products is all the greater.
Your failure to disclose such obviously material information as unusually
large calorie and saturated-fat loads may violate state consumer protection
laws and/or your common-law duty to disclose material facts, and may invite
law suits from concerned consumers, legal action organizations, or even state
officials. That is especially true when the consumers are children
since they are both far less likely to be aware of the health hazards associated
with eating fattening foods and more susceptible to their effects.
On the other hand, if information about calories and fat were squarely presented
to them, many - including many girls and some boys concerned about weight
gain generally, along with overweight children who have been counseled about
the importance of limiting calories - will be interested, likelier to make
different choices, and, as a result, eat more healthful treats.
As you may recall, three supermarket chains recently were sued for not disclosing
that color had been added to farmed salmon; those chains settled and labeling
has become a standard practice. Also, a major fast-food company was
sued for failing to reveal a material fact - that its french fries contained
beef fat - even though that fact was of concern only to the relatively small
percentage of its customers who were Muslims, Hindus, Jews, and vegans.
For all of these reasons, we urge you to list the calorie (and, ideally,
saturated fat) content of each item on your menu boards and/or menus.
Baskin-Robbins stores in Canada list the calorie, fat, protein, and carbohydrate
content on the glass display case over each tub of frozen dessert (though
there’s no similar information for shakes and other products). That’s
exactly the kind of initiative that we hope that your company would undertake
in this country.
We would be pleased to discuss this matter with you and look forward to your
response.
Sincerely,
Michael F. Jacobson, Ph.D.
Executive Director
Center for Science in the Public Interest
1875 Connecticut Ave. NW Suite 300
Washington, DC 20009
202-777-8328
John F. Banzhaf III
Professor of Public Interest Law
George Washington University Law School
2000 H Street NW
Washington, DC 20006
202-994-7229