Washington Lawyer

Cover Story

December 2007

 

Food Fight

By Joan Indiana Rigdon

 

A little more than a century ago, a German scientist named Normann Wilhelm was granted a patent on a hydrogenation process for converting liquid fatty acids into a more solid state.

 

The process involved adding hydrogen to the fat molecules, and it revolutionized the food industry. Before hydrogenation, solid fats came from animal products, such as butter, which was relatively expensive and sensitive to temperature. After Wilhelm’s discovery, food manufacturers were able to transform inexpensive vegetable oil into spreadable fats that stood up well to handling and lived long on the shelf.

 

That opened up new possibilities for shipping and storing food products. The new oils also were more versatile for frying: they withstood higher temperatures and, in a future boon for fast-food chains, could be reused with different food, without absorbing the first batch’s flavor and spreading it to the next.

 

Wilhelm didn’t know it at the time, but in addition to giving birth to partially hydrogenated vegetable oil, his process spawned what is now known to many scientists as an especially dangerous byproduct, something that previously only existed in small amounts in nature: trans fats (which is actually a misnomer, since trans fatty acids are part of fat molecules, but not fats in their own rite).

 

There are three types of fats. Unsaturated fats found in most vegetable oils can improve health (when ingested in moderate amounts) by increasing high-density lipoprotein or “good” cholesterol. Saturated fats found in animal products harm health by increasing low-density lipoprotein or “bad” cholesterol. Several studies, as well as a Food and Drug Administration (FDA) advisory panel, have concluded that trans fats are even worse than saturated fats because they lower good cholesterol while increasing the bad.

 

Alarms about trans fats were raised in the early 1980s, when studies showed they raised cholesterol in rabbits. Now, two decades later, the food manufacturing and restaurant industries are slogging through a protracted legal battle against how, where, and whether they may use trans fats in foods that are served to the public.

 

In 2006, the FDA began requiring food manufacturers to list amounts of trans fatty acid content in their products. By then, several plaintiffs had challenged the use of trans fats in fast-food restaurants. Local governments have jumped into the fray. Several municipalities, including New York City and Philadelphia, have banned the use of trans fats in their restaurants. Montgomery County, Maryland, is set to do the same starting next year.

 

Next up: the states. California’s legislature considered and voted down a statewide ban on trans fats, but the issue is on the table for next year. Twenty other states are mulling various restrictions or bans on trans fats. Much of the legislation targets school cafeteria food. Some target all restaurant food. And some target both.

 

Fear

So far, most of the battle against trans fatty acids has been marked by the quick capitulation—at least in word—of the targeted food manufacturers and fast-food chains.

 

Food industry lawyers say the battle against trans fats has been successful because it has played on emotions above all else. For some, it brings back memories of the attack on artificial sweeteners such as saccharin, the low-calorie sugar substitute the FDA proposed banning in 1977. “That was the first of the great campaigns. They said we had to ban saccharin because it was dangerous and would give you brain cancer,” says Bert W. Rein, a Wiley Rein LLP founding partner whose specialties include food law. But after decades of research, during which it extended a moratorium on the ban, the FDA decided it was safe to lift the ban.

 

Rein believes food manufacturers could defend their use of trans fats. But like the manufacturers who used artificial sweeteners before them, they are afraid of tainting their public images. “When it gets down to sound-bite level, when you consider information about the ban and [public] reaction, food manufacturers are all afraid of coming off as unconcerned about their customers’ health. With this sort of litigation, the tone tends to be, at least for public consumption, relatively shrill: “if you don’t comply, clearly your only intent is to endanger the lives of your customers for a buck,” he says.

 

Some think the battle against trans fats has pushed the FDA into new territory. Until now, “the whole food regulatory system has been predicated upon the question of whether food is safe,” says Michael Roberts, a former FDA lawyer who now specializes in food industry law as of counsel at Venable LLP. But in recent years, “there’s been this not-so-subtle movement toward the question of nutrition. Because trans fat is not just a question of safety, but a question of nutrition.”

 

Stephen Joseph, a former Washington lobbyist whose trans fat litigation has inspired some to call him “the Don Quixote of trans fats,” questions the idea that a line can be drawn between food safety and nutrition. “I don’t understand how having a heart attack is not a safety issue,” he says, referring to scientific studies that link trans fats to heart disease.

 

Origins in Obesity

The legal battle against trans fatty acids got its beginnings from an obesity suit, Pelman v. McDonald’s Corporation. In the suit, two teenage girls who regularly dined at the restaurant alleged McDonald’s was responsible for their heart disease, high cholesterol, diabetes, obesity, and high blood pressure because the company had failed to clearly disclose the high levels of fat, salt, and sugar in its food. (The suit originally was filed in the State Supreme Court of New York, Bronx County, but it was removed to U.S. District Court for the Southern District of New York.)

 

Pelman was filed August 22, 2002. The original complaint did not mention trans fats at all, though it did allege McDonald’s food was unhealthful partly because of how it was processed. Twelve days later, McDonald’s announced it was planning to reduce trans fats in its French fries by 48 percent, by switching to a new oil.

 

Southern District Court Judge Robert Sweet dismissed Pelman in January 2003. But he encouraged the plaintiffs to file an amended complaint alleging McDonald’s foods were dangerous in ways that weren’t obvious “to a reasonable consumer.”

 

Specifically, Judge Sweet invited plaintiffs to look into nontraditional ingredients and processing methods used by McDonald’s. “For instance, Chicken McNuggets, rather than being merely chicken fried in a pan, are a McFrankenstein creation of various elements not utilized by the home cook,” Sweet wrote in his decision. “If plaintiffs were able to flesh out this argument in an amended complaint, it may establish that the dangers of McDonald’s products were not commonly well known and thus that McDonald’s had a duty toward its customers.”

 

Plaintiffs did amend their complaint, but not to Sweet’s satisfaction. The new complaint alleged McDonald’s falsely advertised their food as nutritionally beneficial. It did not explore the “McFrankenstein” angle. Sweet dismissed the suit again in September 2003, saying the plaintiffs did not prove any of their ailments resulted from McDonald’s food and did not prove any of McDonald’s advertisements were deceptive.

 

To many lawyers, including Roberts, it was obvious obesity lawsuits were unlikely to gain traction in courts. “The problem you find with these cases is that it’s impossible to prove causation. There’s genetics, there’s exercise, there are choices involved,” he says. “If an all-terrain vehicle tips over, you can prove that was caused by defective construction or manufacturing. But with food it’s a lot different. It’s a lot more difficult.”

 

The First Salvo: Oreos

As Pelman worked its way through the courts, a lawyer in California took note. Stephen Joseph had worked in the District of Columbia in the early 1980s, lobbying on energy issues on behalf of Westinghouse. In 2001, his diabetic stepfather died of a heart attack. After learning about trans fats in a newspaper article, Joseph wondered if his stepfather’s habit of eating copious amounts of margarine all day long had led to his death. Joseph’s mother began a campaign against trans fats in England, but she wasn’t getting far. In 2003, Joseph moved to Tiburon, California, and started the fight on this side of the pond.

 

Joseph tailored his lawsuit narrowly, and he took pains to moot the argument consumers should be responsible for their own poor eating habits. Suing under California’s consumer protection law, he alleged Kraft Foods Inc. should stop selling its popular Oreo cookies to California children under age 10 because these children were not aware the cookies contained a hidden danger, namely trans fats.

 

Joseph filed his suit in Marin County Superior Court on May 1, 2003. Media outlets from all over the world reported on his assault on the iconic American snack—and in so doing, put trans fats on the map. “I was royally condemned by everyone,” Joseph recalls. “And the one that slammed me the worst was Rush Limbaugh. But I really didn’t mind, you see, because one of my goals was to get the words “trans fat” in people’s minds. And he delivered my message to millions of people.”

 

Within days, Kraft announced it already was working on ways to reduce the use of trans fats in Oreos. Joseph then dropped his suit, saying as a result of media coverage the danger was no longer unknown, and that in Kraft’s statement, he had achieved his goal of reducing trans fats in Oreos.

 

Joseph’s litigation strategy was successful partly because at the time, California had one of the most liberal consumer protection laws in the country. Unlike most other such laws, California’s did not require plaintiffs to show they had been injured. Instead, any plaintiff could act as a “private attorney general” by suing on behalf of California consumers in general.

 

“California was renowned as being one of the more expansive jurisdictions allowing citizen action lawsuits,” says William McGrath, a Wiley Rein partner who specializes in food law. “Lawyers were making a business out of being surrogate attorney generals. The statute allowed counsel fees if they won, so it was a shooting gallery.”

 

In 2004, California voters approved an amendment to the law. The revised law requires plaintiffs prove personal injury or loss of money. Joseph said the revision was a major blow. The California law “was the oldest consumer law in the United States. It had been used to protect consumers for years and years. Businesses didn’t like it because it protected consumers from business excesses. … Then [California Governor Arnold] Schwarzenegger came in and said, it’s a terrible law, it leads to frivolous lawsuits. Voters came in and said, oh yes, we hate frivolous lawsuits. Let’s get rid of them.”

 

Joseph is offended anyone might think his use of the law was frivolous. “People like me, and the people that I associate with, we actually care. We really care that people are suffering heart attacks. Some people in America care. We use these laws to protect the public. And now we can’t. It’s wrong to take away that ability. It’s true that some people have abused that law. But I can’t think of any law that hasn’t been abused. There are lots of very ethically challenged lawyers that file lawsuits that I think are repugnant, but they use any law they can get ahold of to do it,” he says.

 

By changing California’s consumer protection law, “they threw out the baby with the bathwater. They got rid of the law that was protecting consumers against business excesses,” Joseph says.

 

Labeling

By the time California amended its consumer protection law, public sentiment had turned solidly against trans fat.

 

In July 2003, a few months after BanTransFats.com inspired Kraft to announce its plans to reduce the use of trans fats in Oreo cookies, the FDA announced it would soon require all makers of packaged food to disclose trans fat content on their labels.

 

The FDA wasn’t responding to the Oreo litigation; its announcement was the culmination of nine years of research and gathering of public comments, following a 1994 petition by the Center for Science in the Public Interest or CSPI.

 

It’s not unusual the FDA took nine years to propose its labeling rule, says Ricardo Carvajal, counsel in Reed Smith LLP’s FDA Practice Group, and a former associate chief counsel in the FDA’s Office of the Chief Counsel. “They were waiting for the science to gel,” Carvajal says. “A few studies published here and there in scientific journals” wouldn’t be enough to compel the FDA to change food policy, he says. “You need ultimately some authoritative body to sit down with all that science” and sift through the findings.

 

The FDA had asked the National Academies of Sciences (NAS) to do that. In its letter of response in 2002, the NAS said the ideal amount of trans fatty acids we should consume is “zero,” but since that is not practical (as small amounts occur naturally in beef and dairy products), we should consume as little as possible.

 

But the FDA could not agree on a recommended daily value for trans fat. “Zero” might drive consumers away from beef and dairy entirely. And to the FDA, “as little as possible” seemed confusing. It intended to hold hearings on what wording would be appropriate, but so far, no hearings have been held. “We’re still waiting,” says Joseph.

 

In the meantime, the labeling rule that any amount of trans fat that is fewer than five-tenths of a gram per serving may be labeled as having “zero” trans fat.

 

Restaurants

As packaged food manufacturers prepared themselves for the new labeling rules, a new front broke out against trans fatty acids—this time directed at restaurants.

 

While Pelman’s plaintiffs had unsuccessfully sought to forge a link between fast food and various illnesses, BanTransFats.com took a much more limited approach. In October 2003, BanTransFats.com sued McDonald’s in California, saying it had misled the public by failing to adequately advertise the fact it had missed its self-imposed deadline for switching to a trans fat-free oil.

 

Back in September 2002, McDonald’s had said it would make the switch by the following spring. The announcement was widely covered. Joseph says news of the promise reached more than 200 million Americans. “They got absolute fantastic coverage. This was like a CNN marathon for them … reporters were eating French fries on air,” he recalls.

 

McDonald’s had set a deadline of February 28, 2003, for making the switch. At the end of that day, on a Friday evening, they quietly issued a news release, which few journalists noticed.

 

In July of 2004, Joseph filed a second suit, this one a class-action suit, making the same allegations. The following February, McDonald’s settled both suits for $8.5 million. The settlement was used to educate the public on trans fats.

 

A year later, while McDonald’s was still looking for an alternative trans-fat free oil, rival Wendy’s International, Inc. announced it had found an oil that contained drastically lower amounts of trans fats. Wendy’s said it would roll out the trans fat-free oil in its U.S. and Canada restaurants that August.

 

Kentucky Fried Chicken

In Washington, CSPI, the same group that previously had raised alarms about fat content in take-out food and Starbucks drinks, was working on its own assault against the use of trans fats. Their plaintiff was Arthur Hoyte, a retired medical doctor from Rockville, Maryland. Hoyte alleged he had unknowingly bought food fried in trans fats at several Kentucky Fried Chicken or KFC restaurants in the District. He sued KFC’s parent Yum! Brands Inc. to either stop using trans fats or disclose that they did so. Hoyte v. Yum! Brands, Inc. was filed June 13, 2006, in the Superior Court of the District of Columbia.

 

“We didn’t bring this action as an obesity action. Because it was related to food, some people assumed or presumed that it was an obesity action. But this was a real health care focused action,” says Richard Heideman, principal of Heideman, Nudelman & Kalik, P.C., a D.C. law firm that corepresented Hoyte, alongside CSPI. “Here is a product he was buying, and as a medical doctor, he didn’t realize that the particular oil they were using was trans fat-full oil, when in fact … there were alternatives available. And KFC wasn’t doing a changeover.”

 

KFC had the case removed to federal court, where Hoyte had to show he had been personally injured by his consumption of KFC foods fried in oil containing trans fats. Heideman objects to his requirement. “One should not have to prove a direct injury suffered by a person bringing the action as a plaintiff. Then you’d end up with every single consumer of KFC bringing a separate lawsuit having to prove what it did to their particular arteries, or what it did to their heart, which was an insurmountable test for any plaintiff,” Heideman says.

 

Although Hoyte’s case looked bleak in court, he won outside of it. On October 30, 2006, KFC announced that after two years of research, it had identified a suitable trans fat-free oil; all 5,500 of its U.S. restaurants would be using the oil by the end of April 2007. Following the announcement, CSPI withdrew from Hoyte.

 

Few credited Hoyte for the policy change. Instead, it was dismissed on May 2, 2007. The media focused on how Hoyte, a medical doctor, could somehow not realize that trans fats would be present in fast food. In his decision dismissing the case, Judge James Robertson of the U.S. District Court for the District of Columbia wrote, “If consumers are increasingly aware of trans fat, where do they expect to find it if not in fast food restaurants?” This sensible observation was repeated widely. So now, most of the public recalls Hoyte as an object of ridicule.

 

Heideman says despite the dismissal, the decision not to appeal, and the ridicule, his firm and its plaintiff are victors. “We are very proud of having brought this action and stood up by raising the issue in a court of law, seeking justice, and accomplishing a sea change. Not only the KFC stores in Washington, D.C., but in more and more different locales, different companies” are switching to trans fat-free oils, he says.

 

“Quite candidly, being a guy who once met Colonel Sanders, every time I see the KFC ad that says, ‘zero trans fat’ or ‘trans fat-free,’ every time I see that, I just smile with pride.”

 

To those who believe Hoyte was frivolous, Heideman says he doesn’t think KFC or other companies would have switched without pressure from lawsuits.

 

To wit, in February 2007, three weeks after CSPI threatened to sue Burger King Holdings Inc. over its use of trans fats, the chain announced it planned to switch to a more healthful oil by late 2008. (In May, CSPI did sue Burger King in U.S. District Court for the District of Columbia, commenting the chain was moving too slowly compared to competitors McDonald’s and Wendy’s. That suit was pending as of press time.)

 

Heideman thinks the battle against trans fats has just begun—though his firm is not currently planning future suits. “Because not all companies have been sued, not all companies have changed over. Trans fat contained in partially hydrogenated vegetable oil is still a rampant problem across the United States,” he says.

 

State legislators seem to agree. As of press time, two states, Indiana and New Mexico, had enacted trans fat legislation. Indiana restricted the amount of trans fats that could be offered in school cafeterias; New Mexico’s law limits trans fats in restaurant foods. Twenty-one more states were mulling their own trans fat restrictions or bans.

 

Restaurant Bans

Meanwhile, local restaurant bans in cities and counties have remained unchallenged because under law, local jurisdictions can regulate their own restaurants on matters that aren’t already regulated by state or federal governments.

 

“If you are locally operating a restaurant in Montgomery County [Maryland, the county has] the right to come in and inspect. We can tell you how to clean the floor, what insecticides you can use,” says Rein of Wiley Rein. The county can’t regulate which pre-prepared foods a restaurant sells in its jurisdiction, but it can regulate “how you’re cooking food here, right here in my county,” Rein says.

 

But local jurisdictions can’t regulate what kind of packaged food is sold in restaurants. That would be interfering with the purview of the FDA. The result: any restaurant covered by a trans fat ban can sell trans fat-laden packaged foods—as long as the foods are presented to the customer in their package. But if a waiter removes a packaged cake and puts it on a plate, that is considered food preparation; that wouldn’t be allowed under a trans fat ban.

 

Although the local restaurant bans don’t preempt federal law, they raise the question of which level of government should be in charge of our national food policy. “There’s a whole issue of federalism. How are we going to regulate food nutrition, county by county, state by state, or at the federal level, through the FDA?” says Venable’s Roberts.

 

If nutrition will be regulated locally, the targeted evils are likely to change quickly, with public opinion. “How is it we’re so fixated [on trans fats] at the moment? It wasn’t on the radar screen before,” Roberts says. “Sometimes there are things that capture attention and have a certain life span … spinach, food from China, seafood … There’s a whole gamut of issues you could be talking about. It all takes you back to how do you want our food to be regulated? Through local communities? Or through national government?”

 

The regulations “need to be science based. Better solutions are found on a national level if it can be done that way.”

 

Patchworks of local bans have practical pitfalls, too. “There’s a significant question as to whether local jurisdictions have the authority to come along and essentially usurp the federal authority, says Steve Steinborn, a Hogan & Hartson LLP partner who specializes in food and drug law. “The FDA may not think this is a problem for our citizens to ban a nutrient, which is unprecedented. If every jurisdiction picks out what it [deems] to be the nutrient of concern, then you have a very fragmented system. You could have sodium restricted in one state, and trans fat in another.”

 

The local restaurant bans started in 2004 in Tiburon, California. That is when Joseph, who lives there, convinced all 18 of the town’s restaurants to stop using trans fats. New York consulted with Tiburon when it implemented its own voluntary ban in August 2005. New York enacted its compulsory ban in December 2006.

 

For many, local trans fat bans evoke an emphasis on the “nanny state” over personal responsibility. The debate on this is shrill on both sides, but the issues are more complex than they seem, says Carvajal.

 

“It’s reasonable for a consumer to presume when he walks into a food establishment that the food that’s being served is healthful, or at least not bad for them. I don’t mean to compare trans fat with salmonella. But if you walk into a restaurant you can reasonably assume that what’s being served to you is not contaminated by salmonella,” he says. In the case of salmonella, “you know it’s bad, and they know it’s bad. If the health inspector discovers it, they’re going to shut you down.”

 

In the case of trans fat, “the science is pretty clear that it’s bad,” Carvajal says. “Then what should be the expectation for the consumer?” If a consumer has a reasonable expectation that the food is safe, “how far does that expectation extend?”

 

To Carvajal, the answer varies by consumer, by food, and by how informed the consumer is about the risk at hand. “Everything depends on the nature of the stuff we’re talking about. In my heart of hearts, I love foie gras. I can’t believe Chicago banned it. And I love raw French cheeses. And the FDA banned the import of raw French cheeses, because they might be contaminated.” Before the bans, when Carvajal ate those foods, “I was knowingly disregarding whatever risk is present because I knew the risk.”

 

That was also true for oysters. “I love raw oysters,” Carvajal says. “You can’t walk into a raw oyster establishment without seeing a sign that says, if you eat this it could destroy your liver. To me, as opposed to banning raw oysters, it’s preferable in my mind to be required to provide the information” about the risks to people before they order.

 

At least, that’s Carvajal’s opinion. “That’s a very personal take, because with food, it gets very personal,” he says.

 

Disclosure

Critics of trans fat regulation say people should be responsible for their own choices. That is a valid statement for packaged food, says Carvajal, because the FDA requires manufacturers of packaged food to clearly label trans fat content. “You can say to people, you have the information you need to make the decision. In that respect, I don’t see how anyone can be terribly unhappy with that,” he says.

 

“But for restaurant foods, that fundamental notion that people are informed is not one that you can just dispense with so readily. For the most part, they’re not,” Carvajal says.

 

Ironically, the campaign to ban trans fats from fast-food chains has changed the notion that fast food is always nutritionally worse than meals in corner restaurants. That is because fast-food chains have been pushed by lawsuits and public relations campaigns to limit their use of trans fats. What’s more, some groups have taken it upon themselves to act as a kind of food police, periodically buying samples of fast food to have it analyzed in labs.

 

No such scrutiny is being applied to mom-and-pop shops. “Most restaurants don’t provide nutrition information,” Carvajal says. “Certainly, if they use copious quantities of trans fats, they’re probably not going to be in any hurry to let you know.”

 

To make consumers responsible for their own diets, they need more information about what they are eating. “The question is how do you get that information from the selling party to the buying party?” Carvajal says. Once again, his preference is signs over bans.

 

Menu Boards

So far, local jurisdictions are trying to get restaurants to ban their use of trans fats, or at least to disclose that they use them. They aren’t necessarily pushing restaurants to disclose the amounts of trans fats they use.

 

Instead, some locales have expanded their battles against trans fats into battles against obesity in general. Such is the case with New York. Last December, when it passed its involuntary ban on trans fats, it added another rule to its health code, requiring fast-food restaurants to publish calorie information on their menus or menu boards.

 

The rule applied to all restaurants that served standardized portion sizes and who were already making calorie information available to consumers. It would have affected slightly more than 10 percent of New York’s 23,000 licensed restaurants. But it wasn’t enforced, because it was challenged by the New York State Restaurant Association as burdensome and an infringement on the restaurants’ First Amendment rights.

 

This past September, Judge Richard Holwell of U.S. District Court for the Southern District of New York struck down the rule, saying the federal Nutrition Labeling and Education Act of 1990 gives restaurants who choose to disclose calorie information leeway on how to do that. The New York rule would have required the restaurants to post calorie information in large type on their menus. Holwell decided the case on those grounds and did not address the First Amendment argument.

 

In striking down the rule, however, Holwell invited New York to try again. He suggested a rule that applied to businesses that operate 10 or more restaurants under the same name would not be preempted by the federal rule. A month later, New York rewrote the rule so it only applies to chains that operate 15 restaurants or more. As of press time, the restaurant association had not decided whether to rechallenge.

 

The First Amendment

Restaurants say they should not be compelled to disclose calorie counts or other information because that is compelled speech, which has been prohibited under the First Amendment since 1943, when the Supreme Court decided in West Virginia State Board of Education v. Barnette that a student could not be compelled to salute the flag.

 

In the case of requirements to post caloric contents on menus and menu boards, “I think [restaurants] have a decent argument that it is compelled speech. I don’t know how it will come out. It’s a tough area, because you’re running up against the commercial speech doctrine,” says David Hudson Jr., a First Amendment Center lawyer whose specialties include the intersection of free speech and labeling laws. The First Amendment Center is a nonprofit organization based in Nashville, Tennessee.

 

If the state is going to justify commercial speech compulsion, it will have to meet the test of Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, Hudson says. In that 1980 case, the Supreme Court decided the Public Service Commission of New York was infringing on a utility’s right to free speech when it banned advertising on the use of electricity.

 

“It’s fairly clear that courts are pretty protective of commercial speech rights with respect to advertising bans. What is unclear is the constitutionality of required disclaimers,” Hudson says. Supreme Court Justices Ruth Bader Ginsburg and Clarence Thomas “wanted the Court to take a case involving a forced disclosure in a dental case several years ago,” he adds, but the Court did not hear the case. Lower courts are divided on the issue.

 

“We really won’t know until the Supreme Court weighs in and gives us more guidance on it,” Hudson says. He adds that over the past decade, the Court has moved toward expanding commercial free speech rights.

 

The Big Picture

The point of trans fat bans is to reduce heart disease and obesity. Many critics think the bans and menu disclosure requirements aren’t an effective way to do this, because they place too much emphasis on one piece of the puzzle. “My own personal feeling is that I hate to see one aspect of food production swallow up other concerns as well,” says

 

Roberts, of Venable. For instance, America’s dialogue on health includes a lot of discussion of the safety of food imports from China, but not a huge emphasis on the role of exercise.

 

Roberts recalls a recent trip to Shanghai, China, where he taught a three-week course on international food law. “I didn’t see a lot of overweight Chinese in the class or in the community,” he says. “But I’d go over to the track and I’d see hundreds and hundreds of students and older adults and professors exercising on the track. And I thought, okay, they may not have the safest food, but they’re exercising.”

 

John Feldman, a Reed Smith partner who specializes in advertising law, says talking about menu boards is a way to avoid other factors in the American diet, such as corn subsidies, which make high-fructose corn syrup cheap. “It makes me so angry when I start hearing about these agricultural state senators who are railing on restaurants, and they don’t turn their attention on anything else,” including the corn subsidies their constituents receive, Feldman says.

 

“There needs to be attention paid to a lot of things, like the fact that some people can’t read, they don’t have money, one-parent households. These are tough, tough issues. It’s a lot easier to say put more information on your menu board ... It’s a lot harder to say we need to have more money spent in our schools for gym class, or we need more education in the classroom for understanding what foods are good for you and what foods aren’t.” Feldman’s list of ignored issues also includes unsafe streets, which make it unsafe for children to exercise. “There are humongous issues. But there’s only been [a few targets] so far, the processed food industry and the restaurant industry. Particularly the restaurant industry is a huge scapegoat here,” Feldman says.

 

Joseph questions that approach. “It’s garbage. What does it mean—that we shouldn’t do anything about anything because other stuff is bad, too? We should never do anything because there are other bad things in life? Or there may be five bad things in this food. So don’t take out anything? … If people won’t exercise, we shouldn’t take out the trans fat? Where’s the logic there?”

 

Rein worries the battle against trans fats presages future attacks on other ingredients. “You just don’t know where these concerns are going to stop,” he says.

 

And he may be right. As of press time, the FDA was set to hold its first public hearing on whether to regulate salt.

 

Freelance writer Joan Indiana Rigdon wrote about electoral college reform in the October issue of Washington Lawyer.