French fries and burgers could be crucial evidence in looming lawsuits over how fast food restaurants market their menus.
With powerful trial lawyers launching a tobacco-style legal strategy against burgers and fries and with talk of a "fat tax" on certain foods, the fast food industry is clearly worried reports CBS News Correspondent Sharyl Attkisson.
According to The Los Angeles Times, veterans of the lawsuits against Big Tobacco met in Boston last week with other attorneys, as well as health advocates, to plot possible strategies for liability lawsuits against fast food giants.
The meeting was so hush-hush the participants had to sign vows not to reveal what was discussed.
One attendant, recent law school grad Susan Roberts told the newspaper: "I think food is the tobacco of the 21st century."
So does the food industry, and while Big Food disputes any comparison to Big Tobacco, they are preparing for a similar legal assault, mounting a public relations defense based on the notion that consumers, not restaurants, are responsible for what people eat.
"Lawyers hungry for more money should resist the temptation to take a bite out of the fast food industry," Lisa A. Rickard, president of the U.S. Chamber of Commerce's Institute for Legal Reform, said in a statement. "Overweight Americans will not find the solution to obesity in the courtroom but in making wise choices to eat smaller portions and healthier foods wherever they go."
Neither side denies that obesity has increased. According to the Centers for Disease Control and Prevention, the rate of obesity among adults rose from 12 percent in 1991 to 20.9 percent in 2001. Overweight and obesity lead to 300,000 premature deaths a year in the United States, lagging only tobacco-related deaths.
According to the Department of Health and Human Services, obesity and overweight cost the U.S. economy $99.2 billion a year.
In a study released Wednesday, the Chamber of Commerce said research shows fast food is not to blame for the increase in obesity among Americans.
Instead, the study says, the culprits are a lack of exercise and a rise in calories eaten per day due mainly to increased snacking.
The study notes that unlike tobacco, fast food has not been proven to be chemically addictive.
Yet people still feel that what you eat is your personal decision Atkisson found.
Fred Smith, the President of Competitive Enterprise Institute promotes free choice.
"Demonizing Tobacco is one thing. We're now demonizing food, we're demonizing automobiles, we're demonizing energy use," said Smith. "Anyone who doesn't take the trial lawyers serious hasn't looked at the settlements in those areas."
Attkisson also reports that what's considered unhealthy food today could be come tomorrow's health craze. Can a judge and jury really lay down the law on something nutrition experts haven't been able to figure out?
Nutritional information on fast food is no secret, and restaurants are incorporating more healthy options, like salads, to their menus. Fast food restaurants have also reduced the price that consumers pay for protein, a key nutritional need, the report contends.
On average, Americans are eating 200 calories more every day now than they did in 1970. The Chamber argues the new calories Americans are getting come from snacking, not fast food.
But crucially, the report acknowledges that intake of fast food has increased from 60 calories a day in the 1970s to 200 calories a day in the 1990s.
This increase has been offset by reduced meal calories at home, the Chamber contends.
"In total," the report reads, "mealtime calories have not budged much, and mealtimes are when consumers generally visit fast food restaurants."
But the report does not deny that even the fast food contribution to mealtime calories has increased. Nutrition advocates argue that this is significant, since they claim those calories contain unhealthy amounts of fat.
The Chamber's report is partly a response to two recent lawsuits that could signal the advent of many more.
A San Francisco lawyer filed suit against Kraft Foods over the ingredients of Oreo cookies, then withdrew the claim. Another case brought by obese kids against McDonald's is still in court.
The food industry is responding to the growing legal challenge on several fronts, reports the Times.
Kraft has said it will reduce the size of its snacks and stop marketing in schools.
But the industry-backed Center for Consumer Freedom has mounted a $100,000 advertising campaign depicting the suits as "lawyers latest cash cow."
And a Republican congressman from Florida, Ric Keller, has introduced a bill shielding restaurants from lawsuits unless they've broken a specific law.
According to The Times, lawsuits against fast food would adopt a similar approach to that used against tobacco firms: targeting the way companies marketed their products.
"There's no question that their marketing ploys have contributed" to the obesity problem, Richard Daynard, an attorney and president of the Tobacco Products Liability Project, told the newspaper.
And as in the tobacco suit, lawyers may claim that fast food can be addictive, using new research published by New Scientist magazine in February suggesting fats and sugars might have addictive qualities similar to nicotine or heroin.