the cooperative approach.” CSPI has sent companies many letters and held many discussions with companies and trade associations regarding what the institute considers unfair and deceptive marketing practices. According to Jacobson, industry representatives participate in these discussions and are polite, but then say they will go back to their offices and study the complaint. For example, Ben and Jerry’s received its letter from CSPI years ago, but only when CSPI hired a litigator and demanded a response within 30 days did the company respond. Jacobson also pointed out that even without a designated class, it is possible to obtain injunctive relief. “If we can get McDonald’s not to sell toys … that is a relief,” he said.
Shirley Schantz, National Association of School Nurses, asked about the deception apparent in claims that products are made with “real sugar” as opposed to high fructose corn syrup, implying that consumption of sugar will reduce obesity. Gottlieb responded that there is no proven health benefit from using such a claim as an incentive to buy, so an argument exists that it is a misleading claim.
In response to a question about where the obesity epidemic is headed, Gottlieb speculated that if no action is taken, health care costs may become unsustainable because of illnesses caused by obesity. Jacobson, however, speculated that Americans may have reached the limit of weight gain, given its leveling off among some groups in the past few years. Perhaps, he suggested, those who are susceptible to becoming overweight have done so. Another possibility is that there will be a cultural shift, including changes within industry, that will stem the epidemic. There is no way to predict, said Jacobson. Sugarman pointed out that at the time of the Surgeon General’s 1964 report on smoking, the adult smoking rate was more than 40 percent, whereas now the rate is about 20 percent. He speculated that the drop from more than 40 percent to 27 percent might have been the result of changing cultural tastes, whereas the drop from 27 percent to 20 percent might have occurred because of tobacco control policy. Still, in the case of tobacco, that drop represents tens of thousands of lives saved each year.
When asked which litigation he viewed as wasteful, Price specified that he was talking about personal injury cases involving claims that food caused people to become obese and suffer from disease. But he agreed that there has been very little such litigation since its difficulty was demonstrated by the initial lawsuits of this type. He said that “consumer fraud cases appropriately brought are appropriate.” However, not many of these cases have been directed at obesity. Arguing whether high fructose corn syrup is natural or whether ice cream contains natural ingredients fails to get at the heart of the issue, he suggested, and he reiterated his view that litigation is not the way to control obesity.
Gottlieb argued that consumer protection cases nevertheless chip away at the problem. And Bruce Silverglade of CSPI observed that the courts are