A New Way to Fight Junk-Food Ads
Groups to Use Consumer-Protection Laws in Suit Against Kellogg, Viacom

By Caroline E. Mayer
Washington Post Staff Writer
Thursday, January 19, 2006

Two consumer activist groups yesterday announced an unusual new legal approach in their campaign to stop junk-food ads on kids' television programs.

In the past, the Center for Science in the Public Interest and the Campaign for a Commercial-Free Childhood have pressed the federal government for stricter regulations and cheered on individuals who filed lawsuits against particular companies for their high-fat food. Now they say they will use state consumer-protection laws to try to stop what they believe is a deceptive and unfair business practice: advertising to young children.

The two consumer groups, which have long called for limits on all kinds of kid-focused marketing, said they sent letters to Kellogg Co. and Viacom Inc., the owner of Nickelodeon, the nation's most popular children's TV channel, saying they intended to file a class-action lawsuit in Massachusetts, which has one of the nation's most plaintiff-friendly consumer-protection laws. The companies harm children's health, the groups said, because they primarily advertise foods high in sugar, fat and salt and low in nutrients.

Though the groups allege that Kellogg and Nickelodeon each caused more than $1 billion in economic harm to Massachusetts consumers, they are not seeking monetary damages. Instead, they want the companies to stop advertising unhealthful products on shows where at least 15 percent of the audience is under age 8. They also want the network to stop allowing its popular characters, such as SpongeBob SquarePants and Dora the Explorer, to be used to promote unhealthful foods.

The letters from the consumer groups, giving 30 days' notice of a legal filing, are required by the state as the first step in the legal process. Legal experts say cases may be easier to prove under state consumer-protection laws because they do not require plaintiffs to justify that a company's practices led to a specific injury or illness.

CSPI litigation director Stephen Gardner signaled that other companies may be future targets: "Our suing just those two companies does not mean that the practices of all the others are okay. They're not. General Mills, McDonald's, Burger King and other companies all deserve attention in the future."

Kellogg and Nickelodeon said they learned about the potential lawsuits yesterday.

In a statement, Kellogg said it "is proud of its products and the contributions they make to a healthy diet."

Similarly, Nickelodeon said it is "an acknowledged leader and positive force in educating and encouraging kids to live healthier lifestyles." Nickelodeon added that it is encouraging companies to provide more balance in their ads.

Yesterday's announcement comes six weeks after a prestigious national science advisory panel concluded that food and beverage companies were using TV ads to entice children into eating massive amounts of unhealthful food, leading to a sharp increase in childhood obesity. The Institute of Medicine called on companies to make more healthful products and promote them more aggressively. The panel said that if the companies failed to do so within two years, Congress should mandate changes.

CSPI's executive director, Michael F. Jacobson, said he hopes the lawsuit will have nationwide impact because if either company changes its ways, it will probably do so nationally, not just in Massachusetts.

The Center for Consumer Freedom, a nonprofit group supported by restaurants and food companies, said the planned lawsuit "fails to address the true cause of obesity in children today -- a lack of physical activity." The center also said that it was the parents' responsibility to monitor a child's diet.

The decision to use state consumer-protection laws against food manufacturers has been advocated by several attorneys who have successfully sued tobacco companies.

One such attorney, Richard A. Daynard, co-authored an article in this month's American Journal of Preventive Medicine saying that these lawsuits are likely to be more successful than individual lawsuits -- such as the one filed against McDonald's by two teenagers who claimed the chain's high-fat products made them obese. Since there are many causes of obesity, it is hard to prove that one company's product was the cause, Daynard wrote. However, he added, most consumer-protection laws "do not require a showing that the defendant's misbehavior caused a specific illness."

With that theory in mind, Daynard, an associate dean at Northeastern University School of Law, and the CSPI have been preparing a class-action lawsuit against soft-drink makers, seeking to get sodas removed from schools. Yesterday, Gardner said that lawsuit, which he had hoped to file this month, has been put on hold as both sides discuss the issues.

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