A time to sue? (On the web: www.cspinet.org).

To sue or not to sue, that is fast becoming the question as Americans try to deal with the obesity epidemic, heart disease, diabetes, and other diet-induced diseases. The Center for Science in the Public Interest (publisher of Nutrition Action Healthletter) and others have long encouraged legislation, regulations, and education. But, recently, lawyers who cut their teeth on landmark litigation against tobacco companies have begun suing the food industry.

Suits that have made headlines include:

* A New York woman sued Robert's American Gourmet Foods, Inc., which understated the calorie and fat content of its allegedly low-fat Pirate's Booty snacks.

* Vegetarians and Hindus sued McDonald's for stating that its french fries were cooked in 100% vegetable oil, when in fact the oil contains beef flavoring. (The suit was settled for $10 million, with another $2.5 million going to the lawyers.)

* Two New York teenagers and one man sued McDonald's and other fast-food chains for contributing to their obesity. (The judge dismissed the teens' suit, but suggested ways in which the suit, if refiled, could be strengthened.)

Many people, fuelled by stories of outrageous-sounding suits and rich lawyers, have a gut distaste for litigation. But I think that lawsuits have a place, considering that other means of promoting health have been so ineffective.

Thanks to opposition from the food industry, Congress has largely been a dead end for legislation promoting diets that would prevent obesity and heart disease. The Departments of Agriculture and Health and Human Services have failed to mount effective campaigns to help people eat better diets, and the USDA has refused to require nutrition labeling on fresh meat. As John Banzhaf, a professor of law at the George Washington University Law School in Washington and one of the most vocal and effective anti-tobacco attorneys, said about food issues: "If we can't legislate, we'll litigate."

Litigation works. Lawsuits forced cigarette companies to disgorge thousands of incriminating documents, to pay tens of billions of dollars to state governments, and to drop certain advertising practices. Though food is very different from tobacco, I am glad that lawyers have begun to consider litigation. A few areas that deserve their attention:

* Foods that are deceptively labeled or advertised as nutritious cheat people out of dollars and nutrients.

* TV advertising and other marketing aimed at young children (who are easily manipulated) promote bad eating habits, which may eventually lead to obesity, diabetes, and osteoporosis.

* Schools that sell soft drinks and other junk foods jeopardize, rather than protect, the health of their students.

* Chain restaurants' failure to list calories and other nutrients on their menu boards contributes to obesity and other chronic diseases.

Ideally, lawsuits would not just enrich attorneys, but improve industry (and school system) practices and fund educational and advocacy programs. The suit against McDonald's, for instance, forced the company to more accurately describe its ingredients and give $10 million to nonprofit groups representing vegetarians, poorly nourished children, Hindus, Sikhs, and Jews who keep kosher.

Similarly, 20 years ago, a California public-interest-law group sued General Foods for advertising sugary cereals to kids. That suit's settlement led to the creation of an advocacy group, the California Adolescent Nutrition and Fitness Program (CANFit).

Litigation isn't the only approach to solving problems. But when other avenues fail, it's time to give it a try.

Michael F. Jacobson, Ph.D.
Executive Director
Center for Science in the Public Interest