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Got Lawsuit? Milk Dieter's Is Thrown Out

By Jerry Markon
Washington Post Staff Writer
Thursday, December 7, 2006

Catherine Holmes saw the ads for the so-called "dairy diet" and thought it would be a tasty way to lose a few pounds. After all, she loves buttermilk, yogurt and cheese.

Instead, the Arlington woman says, she gained three pounds on the diet, which dairy companies have spent hundreds of millions of dollars promoting. She sued the industry.

But a federal judge has ruled that under Virginia law, Holmes and other people can't take on the industry in court -- only a government entity such as the Virginia attorney general's office can. The decision last week by U.S. District Judge Leonie M. Brinkema in Alexandria threw out the lawsuit Holmes filed last year.

In her ruling last Thursday, Brinkema said Virginia consumer protection law allows people to seek monetary damages but not a broad injunction regulating an industry. She did not address the science of the debate, writing that such federal agencies as the Food and Drug Administration and the Federal Trade Commission are better equipped to do so.

An attorney for Holmes vowed yesterday to appeal and file a similar lawsuit in a more consumer-friendly state. "We're very disappointed," said Dan Kinburn, general counsel for the Physicians Committee for Responsible Medicine, which filed the Virginia case on Holmes's behalf. "This will encourage and assist the dairy industry in making this country fatter and sicker."

Dairy industry representatives said the ruling validated their view that consuming dairy products helps with weight loss when coupled with calorie restriction and exercise. They vowed to continue the advertising campaign.

"The dairy/weight loss connection is grounded in sound science and has proven to be another compelling reason for the public to consume the recommended three servings of dairy a day," said Gregory D. Miller, executive vice president of science and innovation at the National Dairy Council.

Underlying the debate is growing concern nationally about increasing obesity among children. Researchers have split over the role of dairy products in the trend; some studies have found that children who drink too much milk are prone to becoming overweight, and others have found a weight-loss benefit from drinking milk.

In the lawsuit, filed in Alexandria Circuit Court and moved to federal court, the physicians committee accused the dairy industry of promoting the weight-loss notion through a "massive, deceptive advertising campaign." The committee says overwhelming scientific evidence shows that dairy products cause weight gain or have no effect. The only studies showing otherwise, the committee contends, are industry-funded.

Holmes is the sole plaintiff in the lawsuit, filed against such companies as General Mills Inc. and the Dannon Co. Inc. and three dairy industry trade groups. In addition to damages for Holmes, the suit seeks an order halting the dairy industry campaign.

The physicians committee has filed administrative petitions with the FDA and the FTC making similar allegations. Spokespeople for both agencies did not return telephone calls and e-mails yesterday.

The dairy industry has criticized the physicians committee, which has about 6,000 doctors among its 100,000 members and advocates a plant-based diet, as anti-meat and anti-dairy. In a footnote on the first page of her ruling, Brinkema quotes from a Web site that accuses the committee of being an animal rights organization "interested in perverting medical science."

"That suggests she was influenced by propaganda put out by the dairy industry," Kinburn said.

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