'Psychologically addictive' claim: Fast-food suits may stand a chance

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Advertising-law experts believe lawsuits filed against the fast-food industry charging their food is addictive and causes the plaintiffs' health problems are largely tough-to-prove nuisance suits. But given prior suits' success in hobbling Big Tobacco, ad-law experts don't discount the fast-food actions.

In July, Caesar Barber, a 56-year-old maintenance supervisor, filed a class-action suit in the Supreme Court of New York against McDonald's Corp., Burger King Corp., Yum Brands' KFC Corp. and Wendy's International for making him fat and raising his risk of illnesses related to being overweight. Then two weeks ago, Ashley Pelman and her mother Roberta, along with Jazlen Bradley and her father Israel, filed a second class action against McDonald's Corp., McDonald's Restaurants of New York and a store located at 2630 Jerome Ave., Bronx, N.Y.

The second suit alleges the fast-food companies directly targeted children under age 18 in advertising and marketing, along with their parents, without disclosing the purported negative health effects. It also alleges McDonald's foods are "...physically or psychologically addictive and/or addictive in nature."

Both suits ask for a jury trial to determine compensatory damages, as well as seek nutrition labels and educational programs.

The fast-food companies named in the suits point to their menu variety and lower-fat options. McDonald's, for example, has recently introduced a french fry made from "good" fat.

Since there are no precedents, the class-action cases have several legal hurdles to overcome, particularly the addiction claim, said Andrea Friedman and Char Pagar, partners at advertising law firm Hall Dickler Kent Goldstein & Wood, Chicago. Neither attorney represents any of the defendants named. There is no evidence that "consumers lost their freedom of choice because of [fast-food] addiction," she said.

Another difficulty for the plaintiffs may be proving that their obesity was caused by fast-food rather than what they ate at home, and that fast-feeders have failed to adequately disclose to consumers the risks associated with consuming their foods. "The average, reasonable consumer is well aware that eating fast food all the time isn't healthy," said Ms. Friedman.

Mr. Barber, who is 5 feet 11 inches tall and now weighs 270 pounds, said he first realized he couldn't control his eating habits after surviving a second heart attack in 1999. At the time, he weighed 285 pounds from eating fast food "five to six times a week, two to three meals a day."

"It's fast, efficient and cheap," he said. "I'm not a very good cook."

He wouldn't discuss his chances of winning or respond to a press release issued by restaurant-industry coalition the Center for Consumer Freedom. The release said John Banzhaf, a George Washington University law professor, longtime tobacco critic and a key adviser to the Barber team, discredited the merits of the suit on CNN's "Crossfire."

According to a press release, Mr. Banzhaf said on the program the Barber suit "is gone" and "no longer applies" before announcing the second suit on behalf of children.

"I don't believe it's dead at all," said a defiant Samuel Hirsch, the lead lawyer for Mr. Barber. "The food industry is overly confident."

Ms. Friedman said it is unlikely a judge will dismiss the case immediately. "I would be very surprised if it went away fast," said Ms. Pagar. "[The plaintiffs] might file and file and file until they find a judge who will listen."

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