Lines Are Drawn for Big Suit
Over Sodas
By MELANIE WARNER | The New York Times | December 7, 2005
It is lunchtime at Grover Cleveland High School in Portland, Ore. A steady stream
of thirsty teenagers poke dollars into the three Coca-Cola machines in the hallway.
By the end of lunch period, the Coke With Lime, Cherry Coke and Vanilla Coke are
sold out.
Elsa Peterson, a senior at Grover Cleveland and the student body president, said
she knew she could bring healthier juices from home. "But it's easy to walk
up with a dollar and just get a pop."
That, says Stephen Gardner, staff lawyer for the Center for Science in the Public
Interest, is exactly the problem. In an age of soaring obesity rates among children,
he argues that soda and other sugary beverages are harmful to students' health
and that selling those drinks in schools sends a message that their regular consumption
is perfectly fine.
In a lawsuit they plan to file in the next few months, Mr. Gardner and half a
dozen other lawyers, several of them veterans of successful tobacco litigation,
will seek to ban sales of sugary beverages in schools.
The lawsuit is to be filed in Massachusetts, which has strong consumer protection
laws and happens to be where some of the lawyers are based, and will name Coca-Cola,
PepsiCo and their local bottlers, the lawyers say. It will be the first of many
such state lawsuits, they say.
The $92 billion beverage industry, dominated by Coca-Cola and PepsiCo, is gearing
up for a counterattack. Last week, the American Beverage Association, the lobbying
group for the beverage industry, released a study arguing that soda sales in schools
are not a significant contributor to rising childhood obesity rates.
The study, which was paid for by the association but conducted by an outside economist,
concluded that school vending machine sales of non-diet soda declined by 24 percent
from 2002 to 2004 and that the average high school student consumes just one 12-ounce
nondiet soda a week from school vending machines.
"This study confirms what previous studies have shown: that consumption of
full-calorie sodas purchased from school vending machines during normal school
hours is a very minor source of calories in the diets of American youth,"
said Susan K. Neely, president of the American Beverage Association, which last
year changed its name from the National Soft Drink Association.
Across America, almost half of all public schools have exclusive contracts with
beverage companies. According to a report published in August by the Government
Accountability Office, the investigative arm of Congress, 75 percent of all high
schools, 65 percent of all middle schools and 30 percent of elementary schools
have beverage contracts.

Such contracts have been promoted as a continuing source of revenue for schools
needing cash. The deals often give schools a large upfront payment and a share
of the collected revenue. But a study of public school contracts in Oregon concluded
that the amount of money received by schools is not that significant and that
by far, most of the revenue goes to the companies, not the schools.
The study, done by the Community Health Partnership, a public health advocacy
group in Oregon, found that school districts received just $12 to $24 per student
annually. "Some people have the perception that there is a huge amount
of money in this for schools," said Nicola Pinson, a lawyer who was hired
by the Community Health Partnership to do the study, the most extensive analysis
done on school contracts to date. "But we need to put it in perspective
with overall budgets and how much money the companies are getting."
For the 2005-6 school year, for instance, Portland's school district has projected
that it will receive $250,000 from vending sales at its 15 high schools, an
amount representing 0.06 percent of a total district budget of $396 million,
according to school budget documents.
Ms. Pinson contends that while schools certainly earn some money, Coke and Pepsi
bottlers get the better end of the deal. She says that the Hillsboro school
district's 12-year contract with the Coca-Cola Bottling Company of Oregon, for
instance, requires the district to buy 420,000 beverage cases over the life
of the contract; that translates into students spending a total of $10 million.
Of that, $3 million will go to the district and $7 million will go to the bottler.
"This is all coming from the community's pockets," Ms. Pinson said.
"You have to ask whether this is really an effective way to do fund-raising
for schools."
According to the Oregon study, which analyzed 19 contracts covering 186,000
students, some contracts even reward schools when students purchase the most
caloric and unhealthiest of options. The Portland school district's contract
with the Coca-Cola Bottling Company of Oregon stipulates that schools get 50
percent from every 20-ounce bottle of Coke, but only 35 percent for a 12-ounce
can and 30 percent for a bottle of water or juice.
Ms. Neely of the American Beverage Association said that contracts involve
"two willing parties" and that schools have the ability to negotiate
what they want to sell in vending machines. More broadly, Ms. Neely said that
the beverage industry had taken steps to address concerns over soda sales in
school.
In August, the beverage association announced that beverage companies would
stop selling soda and other drinks with added sugar in elementary schools and
would restrict the sale of regular, full-calorie soda in middle schools to after-school
hours only. Next month, the association is planning to run an ad campaign about
the new policy.
Mr. Gardner of the Center for Science in the Public Interest, a nutrition advocacy
group, said that the beverage association's policy did not adequately address
the sales of beverages in high schools, which is where the majority of purchases
occur.
The Massachusetts lawsuit will focus specifically on sales of what it terms
unhealthy beverages (likely to mean full-calorie sodas, sports drinks, iced
tea drinks and juice drinks without much juice) in high schools and will argue
that such sales constitute unfair and deceptive marketing. The suit will also
cite the ways in which the large illuminated Coke and Pepsi machines lining
school halls and cafeterias are an "attractive nuisance."
"They're selling to a captive audience that isn't really in a position
to fully evaluate all the health risks," said Andrew A. Ranier, a partner
at McRoberts, Roberts & Ranier in Boston and one lawyer involved in the
suit. "And they're not telling people about the risks."
Three tobacco litigation experts are also involved in the suit: Tim Howard,
a Florida lawyer who helped the state win a $17 billion settlement against tobacco
companies in 1997; Stephen A. Sheller, a partner at Sheller Ludwig & Badey
in Philadelphia, who was involved in a successful $10 billion tobacco class
action in Illinois state court that is currently under appeal; and Richard A.
Daynard, an associate dean at the Northeastern University School of Law who
has served as an adviser to many of the state tobacco lawsuits that led to a
$246 billion settlement in 1998.
Mr. Gardner and the rest of the Massachusetts coalition
say they think the scientific research linking soda and obesity is strong. Numerous
studies have shown, for instance, that people do not compensate for liquid calories
in the way they would for, say, a slice of pizza or a handful of cookies because
drinks do not create the same sense of fullness.
In a study published in the medical journal Lancet in 2001, Dr. David S. Ludwig,
director of the obesity program at Children's Hospital Boston and an associate
professor of pediatrics at Harvard Medical School, found that each additional
daily serving of a sugar-sweetened beverage increased the risk of obesity by
60 percent.
The American Beverage Association says that there are also studies that show
no link between consumption of soft drinks and obesity. The Massachusetts lawyers
say they think that their legal foray is likely to get greater public support
than the much-publicized suit against McDonald's by two obese New York teenagers.
"This is different from the fat kid who goes to McDonald's," said
Mr. Gardner, speaking at an obesity lawsuit conference organized by Professor
Daynard in September. "This is a captive audience and they're using schools
to get their brands into the hearts and minds of students."
One detail yet to be decided is whether the group will seek financial damages.
Under Massachusetts's consumer protection law, successful plaintiffs are entitled
to $25 per violation, which could mean $25 for every time a student has purchased
a soda in a public high school in Massachusetts over the past four years.
Mr. Gardner said he and the other lawyers realize that damages could run into
the billions. "We haven't decided about this yet," he said. "We
don't want this to come off looking like a greedy-lawyer lawsuit."
Federal Advisory Group Calls for Change in Food
Marketing to Children
By MARIAN BURROS | The New York Times | December 7, 2005
WASHINGTON, Dec. 6 - A federal advisory group said Tuesday that there was compelling
evidence linking food advertising on television and the increase in childhood
obesity.
The group, the Institute of Medicine of the National Academies, based its report
on 120 studies examining the connection between television advertising and overweight
children. Ellen A. Wartella, a member of the committee that wrote the report "Food
Marketing to Children and Youth: Threat or Opportunity?" said it proved
that food marketing, primarily on television, influenced the diets, preferences
and requests of children under age 12.
"We have not had that kind of information before," said Dr. Wartella,
executive vice chancellor and provost of the University of California, Riverside,
on the long dispute between the food industry and its critics.
To reduce childhood obesity, the report recommends a long-term campaign to educate
the public about making healthy food choices. The campaign would be financed by
public and private funds, the latter coming from the industries considered responsible
for the increase in the number of overweight and obese children.
The report also says that if the food industry does not voluntarily shift the
emphasis of TV advertising aimed at children to healthy foods from high-calorie,
low-nutrient products, Congress should make them do so.
If the food industry accepted the recommendations, SpongeBob SquarePants, the
cartoon character who promotes carrots, yogurt and Pop Tarts, would have to drop
the Pop Tarts. High-sugar cereals like Shrek might disappear entirely.
The report said the final link that would definitively prove that children had
become fatter by watching food commercials directed at them cannot be made, but
there was enough evidence to take action.
"The committee believes the report is, quote, 'the nail in the coffin,' "
said Aimée Dorr, a member of the committee and dean of the graduate school
of education and information studies at the University of California, Los Angeles.
"It is not the perfect golden spike, but it is definitely sufficient to take
action and work in positive directions."
Senator Tom Harkin, an Iowa Democrat who requested the study, added: "The
food industry doesn't spend $10 billion a year on ads to kids because they like
to waste money. Their ads not only work, they work brilliantly."
The report acknowledges that marketing to children has gone far beyond TV advertising
to include, among other things, computers and video games that feature branded
products, product placement in movies and television, and school-based marketing
like signs and exclusive contracts with soft-drink companies.
The committee says its recommendations would apply to those types of marketing
as well. It also recommends that food sold in school be subject to nutritional
standards, and that calorie information be required on menus at chain restaurants.
The report mentions changes that a few companies, like Kraft, have made toward
more healthful foods. But it also says that new products aimed at children rose
to 470 last year from about 50 in 1994, a rate far greater than that for the increase
of new products in the total market. Most of the products are high in calories,
sugar or fat and low in nutrients.
The Grocery Manufacturers of America did not question the report's findings but
did say that it did not go far enough in recognizing the strides the food industry
has made in responding to obesity.
"The Institute of Medicine should have looked at the enormous changes in
the last several years in the industry," said Richard Martin, vice president
for communications at the group, an association of food, beverage and consumer
products companies.
He said he was not worried about a possible advertising ban, saying, "The
food and beverage industries are already responding because consumers want these
changes."
But the Association of National Advertisers describes the call for Congressional
action "a dangerous precedent."
The Center for Science in the Public Interest, an advocacy group that is often
critical of the food industry, said in a statement that industry efforts, so far,
were minor improvements. It said it viewed the report as a "milestone that
marks the beginning of the end of junk food marketing to kids."
Copyright 2005 The New York Times