With the federal government all but ignoring the numerous ways food companies deceive shoppers with dubious health claims, the courts are becoming a more popular alternative for action.

As you may recall from civics class, we have three branches of government, and when two of them – the executive and the legislative – have essentially checked out, that leaves only one place to turn for a legal remedy: the judiciary. Despite years of brainwashing by the right wing about the evils of trial lawyers, litigation is a critical and yet underutilized tool for obtaining justice under a broken and compromised political system.

Under both federal and state law, it’s illegal to engage in deceptive marketing. This is a broad concept that applies to any entity that advertises. The idea is that consumers should not be swindled into buying a product; they deserve the straight facts to make informed purchasing decisions. And while such laws do help deter shady activities, deceptive marketing statutes get violated all the time, mostly due to lack of enforcement.

It may be unsettling to realize that on grocery store shelves right now are likely hundreds of food products that contain illegal deceptive claims. While the federal government does have specific definitions for some phrases such as “low fat” or “low salt,” otherwise almost anything goes on the front of a food package because the feds have turned a blind eye. Without proper government oversight, the only recourse is for private law firms to set these companies straight.

Here are some examples of deceptive food marketing cases currently gaining traction. (Full disclosure, I am a consultant for Reese Richman, one of the law firms bringing such cases.)

Natural Claims

The Food and Drug Administration is unwilling to provide useful guidance on the definition of “natural,” resulting in ubiquitous use of the word by marketers, no matter how nutritionally deficient the product. Factor in the growing interest in organic along with consumer confusion over that label’s meaning and you have a marketing bonanza in “natural” food.

Some lawsuits are being filed over products sporting the natural label that contain genetically-engineered ingredients. Two such examples are ConAgra’s line of Wesson cooking oils and Frito-Lay’s snack products. To back up their claims, lawyers are even relying on Monsanto’s own definition of genetically-modified organisms: “Plants or animals that have had their genetic makeup altered to exhibit traits that are not naturally theirs.”

In a positive development in the ConAgra case last November, the judge found that that the plaintiffs adequately described “why genetically-modified products cannot be considered natural” and “they understood that the phrase ‘100% Natural’ meant that Wesson Oil was not made from genetically modified organisms, and that they purchased the product based on this false understanding.” This is a huge step forward for these types of cases.

In a similar action against Frito-Lay, the court recently made a preliminary ruling in favor of the plaintiff allowing the case to move forward. In its defense, Frito-Lay argued that no reasonable consumer would expect the phrase “all natural” to actually refer to all of the ingredients in the product. The court disagreed, since a reasonable consumer could interpret “all natural” to mean, um, all natural.

Such cases have tremendous potential to rock the processed food world, given how many products containing GMO ingredients are currently touting the meaningless natural label. Moreover, with increasing calls for mandatory GMO labeling at both the federal and state levels, along with voluntary retailer actions from the likes of Whole Foods, this issue is not going away anytime soon.

Other cases challenging the natural label are over products containing ingredients that are obviously not natural. One such lawsuit is against the Kellogg-owned Kashi GoLean brand of products. From the complaint:

For example, Kashi’s ‘All Natural’ GoLean Shakes are composed almost entirely of synthetic and unnaturally processed ingredients, including sodium molybdate, phytonadione, sodium selenite, magnesium phosphate, niacinamide, calcium carbonate, calcium phosphate, calcium pantothenate, pyridoxine hydrochloride, thiamin hydrochloride, potassium iodide, and other substances that have been declared to be synthetic substances by federal regulations.

Not sounding very natural. The judge has allowed this case to move forward.

Products Aimed at Children

Marketing to children qualifies as illegal deception because a child cannot understand how marketing works. What could be more deceptive than taking advantage of a child’s emotional vulnerability? Unfortunately, we have zero enforcement of this obvious legal violation due to weak-kneed government officials, once again leaving it up to the court system.

To date only one lawsuit has been filed directly challenging marketing to children— against McDonald’s over Happy Meals—an obvious target. The case was brought by the Center for Science in the Public Interest, the only nutrition advocacy group with a litigation department. (This helps explain why this tool is so underutilized.) Unfortunately, the judge dismissed the case last year. While suing over marketing to children does face certain procedural challenges, with the right venue and strategy, I am hopeful we can gain traction in time.

In lieu of directly challenging food makers for targeting children, another strategy emerging is suing over child-oriented products that make deceptive health claims. One such example is the General Mills’ product, Fruit Roll-Ups.

Also filed by Center for Science in the Public Interest, this case took the company to task for its claims their products were “fruit flavored,” “naturally flavored,” a “good source of vitamin C,” and low in calories, fat, and gluten. (Seriously, low in gluten?) In December, this case was settled when General Mills agreed to stop using the most egregious practices; for example, no longer putting images of strawberries on a product that contained none. Duh.

Chutzpah Claims

Taking the prize in the chutzpah line of cases is Coca-Cola’s vitaminwater brand. This lawsuit alleges deceptive marketing for positioning the product as a health tonic, when some varieties contain a whopping 33 grams of sugar (in 20 ounces), among other unhealthful ingredients such as dyes. That case has also been allowed to move forward, despite Coca-Cola’s desperate argument that “no consumer could reasonably be misled into thinking vitaminwater was a healthy beverage,’ a claim that was skillfully ripped apart by John Robbins and as well as hilariously pilloried by Stephen Colbert.

Another product deserving a chutzpah award is Chobani yogurt, a brand that has taken on near-iconic status in the most health-washed category of all. Chobani is being sued over its “all-natural” claim (among other statutory violations) because the label lists “evaporated cane juice,” which is just a fancy way of saying sugar. This, despite the FDA’s explicit warning to food makers not to use the phrase because the accurate description of the ingredient is actually “dried cane syrup.” But juice sounds so much more “natural” than syrup.

In a recent Twitter exchange, I had some fun with the poor social media person at Chobani. Despite the lawsuit, the company continues to use the phrase “evaporate cane juice.” When I asked why not just call it sugar, the reply was: “It’s specifically the form we use. Not all sugars are created equal.” But I got no response when I next tried to ask exactly how their sweetener was any different from sugar. (Maybe the lawyers got hold of the Twitter account.)

Rounding out the chutzpah category is Nutella, which got in legal trouble for advertising its dessert-like product as healthy breakfast. Although the case was settled for $3 million, it was also the subject of some ridicule by those who thought it was obvious that Nutella is a treat. But that critique misses the point: Under the law, companies are not allowed to market its junk food products as healthful. In a seminal case against Gerber for deceptively marketing children’s “fruit snacks,” the company tried to use the Nutrition Facts label as a defense, since the ingredients and amount of sugar are clearly listed there. But the judge explained that information being available elsewhere (like on the back of the package) does not make it OK for a company to deceive consumers in other ways, such as on the front of the package or in ads.

Litigation Challenges

While litigation represents an important tool for holding food companies responsible, there are also numerous challenges. For example, the strategy requires targeting one product or line of products at a time, which is not the most efficient approach for sweeping change. However, strategic selection of the worst (and largest) offenders can send a strong message to an entire industry.

Another limitation is how long the court process can take: often several years just to get through the preliminary phase. And, corporate defense lawyers are skillful at dragging out the process in hopes the plaintiffs will give up. Finally, the results are sometimes less than ideal. Most cases end in settlement because they are too costly to bring to trial, and negotiation necessitates compromise.

But given the widespread health-washing by a desperate food industry at a time when the American public is starting to realize that actual fruit may be a healthier option than Fruit Loops, litigation is a critical, if imperfect, tool.

Why Get Involved in Litigation?

Advocacy groups engaged in the good food movement should take notice. While major foundations may be too skittish to fund litigation, organizations can still team up with private lawyers to bring more of these sorts of cases. Nonprofits can play different roles such as: 1) offering specific expertise as consultants; 2) asking their members to serve as plaintiffs; 3) being a named plaintiff themselves in certain types of actions; or 4) serving as co-counsel.

Perhaps the best motivator for a nonprofit group to get involved in litigation is the potential for being awarded part of a “cy pres” fund: money set aside in a settlement for nonprofits doing good work that is sufficiently related to the case. Several good projects got their start with cy pres money, including a California-based group called CANFIT, which works with adolescents around health and nutrition. That settlement fund was from a deceptive marketing case against Kraft Foods, and some 20 years later the group is still going strong.

We have our work cut out for us with so much deception in the marketplace, but with better coordination and teamwork, we can make real progress through the legal system. It’s a shame that we have to turn to the courts at all, but that’s the political reality right now. Someone has to hold the food industry accountable.

On election day, while most of the nation was distracted with the mid-term election, another vote was taking place in San Francisco City Hall. The Board of Supervisors approved an ordinance to place limits—based on specific nutrition criteria—on how toys are marketed by restaurants in the city and county of San Francisco.

Most media accounts got the story wrong. The Los Angeles Times for example, called it a “Happy Meal ban.” (It’s true that, according to McDonald’s, none of the current Happy Meals meet the criteria, but that’s fixable.) The real story is, how did McDonald’s—the nation’s most beloved fast food brand—get so beat up?

It’s easy to dismiss this victory as just another liberal law passed in “wacko” San Francisco. While the majority of the Board of Supervisors do lean to the left, passing this bill was by no means a slam dunk. To the contrary, it took months of organizing and coalition-building to get the job done. Along the way, proponents faced numerous obstacles, including underhanded lobbying, deceptive polling, and more.

How did they do it? According to Judy Grant, Value [the] Meal campaign director for Corporate Accountability International (CAI), the lead organizing group on the ground, “the old-fashioned way – we hit the phones and the pavement.” [full disclosure: I'm on the advisory board of CAI's Value [the] Meal campaign.] Once the bill was introduced by Supervisor Eric Mar, CAI quickly realized the industry would defeat it without a solid grassroots voice. Grant explains:

We worked with Mar’s office to form a coalition from every corner of the City. Many San Franciscans felt the time for this law had come, so it was easy to find many residents in support. We took local activists to farmers’ markets and food-related events to get their fellow San Franciscans involved.

Many other organizations also played an important role, including the California Center for Public Health Advocacy, Prevention Institute, and the Campaign for a Commercial-Free Childhood, whose mailing lists and resources were critical to garnering support.

Testimony from doctors at the University of California, San Francisco was also key. Pediatricians told heartbreaking stories about how the children they see suffer.

Another critical organizing group was the Bayview Food Guardians, based in the low-income San Francisco neighborhood of Bayview / Hunters Point. Here is an excerpt from Food Guardian Jameela Toups’ powerful testimony:

The youth in my community are getting diet-related diseases like diabetes and hypertension at younger and younger ages. This is largely because of an unhealthy food environment that lacks fresh, affordable food and instead has an overabundance of fast food and relentless fast food marketing, including these toy incentives.

We at Food Guardians have helped some folks in our neighborhood change the way they eat. But we can’t reach everyone. There are hundreds of others that we have not been able to talk to yet. To reach everyone, we would need millions more in funding.

But the fast food industry has those millions. They can reach pretty much everyone, almost 24-7, and their message is counter to what we want our neighbors – particularly our youth – to hear. We try to reach youth before their habits are set, but far too often the industry has gotten to them first.

All of this organizing and testimony was needed to go up against a full-court press counter-lobbing effort by McDonald’s and the California Restaurant Association, the industry’s powerful statewide lobbying arm.

At the bill’s very first hearing, dozens of local supporters showed up while McDonald’s flew lobbyists in from corporate headquarters to testify, including the company’s “director of nutrition.” But the hearing got really bizarre when a parade of Mandarin-speaking individuals testified against the bill, each with similar talking points. One of these speakers was even seen consulting a script in the hallway.

Given that most Chinese people in San Francisco speak Cantonese and not Mandarin, were these alleged McDonald’s supporters even locals? “We were not able to confirm that they were from San Francisco, though we got the sense they were not,” said Supervisor Mar in a statement. “We’re also not able to confirm their connection to the fast-food industry. It’s all very suspicious.”

Another underhanded move involved expensive polling conducted by the California Restaurant Association that allegedly showed San Franciscans were largely opposed to the bill. But the survey questions were so biased that the tactic actually backfired. For example, the lobbyists asked, do you agree or disagree that “It should be up to parents, not city politicians, to decide what to feed their children,” and, “A working parent coming home after a tough day should have the option of occasionally purchasing a meal with a toy for their child.” Not exactly objective scientific survey methods.

While San Francisco Mayor Gavin Newsom (who was just elected lieutenant governor of California) has promised to veto the bill, organizers were able to secure a veto-proof majority, which was a tremendous effort in itself, requiring hundreds of phone calls and hours of meetings to get the key swing vote to come on board.

So how much money did McDonald’s and friends spend on lobbying against the measure? According to Deborah Lapidus, senior organizer for Corporate Accountability’s Value [the] Meal, at least tens of thousands, maybe even hundreds of thousands of dollars. But no amount of corporate cash was enough to overcome the passion of a few hundred community leaders and residents who said enough is enough. As San Francisco is often a national leader on health issues, other cities are sure to follow. McDonald’s may have to start loading up a few more buses.

We have a long history of working with responsible NGOs who are interested in serious dialogue and meaningful engagement; and we are open to constructive feedback.

Really? Like how McDonald’s worked with those two activists in the UK by suing them for libel in the 1990s for putting out a simple brochure? The case (dubbed McLibel) spawned a book and a movie and became notorious for being the longest English trial ever, not to mention the stupidest public relations move short of New Coke.

Skinner continues to dig his own grave:

Ronald McDonald also serves as an ambassador for children’s well-being, promoting messages around physical activity and living a balanced, active lifestyle.

Right. That must explain why an entire campaign was launched in March by Corporate Accountability International to Retire Ronald based on an investigation that showed how the clown’s main job is to promote McDonald’s unhealthy foods, in schools and just about anywhere children can be found.

And finally, Skinner asserts the company has “more choice and variety than ever before” in Happy Meals, and:

Furthermore, McDonald’s makes available in-depth, comprehensive nutrition information about our food to give parents the support they need to make appropriate choices for their children.

OK, now this is kind of true, and is where things get interesting. It appears that McDonald’s has already changed the nutrition facts on its website for Happy Meals. But only some Happy Meals, the ones that come with “Apple Dippers,” the healthy alternative to French fries.

In its June 22 press release about the potential lawsuit, CSPI complained that:

Of the 24 possible Happy Meal combinations that McDonald’s describes on its website, all exceed 430 calories (430 is one-third of the 1,300- calorie recommended daily intake for children 4 to 8 years old).

In documents provided by CSPI, here is what the nutrition listing looked like on the McDonald’s website as of June 15. If you compare these figures to this listing, which says is effective as of June 25, just 3 days after CSPI’s news release about the lawsuit, you will see for each of the Happy Meals that come with Apple Dippers, the number of calories has been reduced by exactly 70.

Could that be because McDonald’s has decided not to include the caramel dipping sauce in the total? Who knows? Any clever nutritionists out there want to help?

Not that this re-do really helps McDonald’s all that much, given that it only makes three of the 12 Happy Meal combinations with Apple Dippers below the 430 calorie level that CSPI says should be the cut-off. (And of course, all the others are still way over 430.) Never mind, CEO Jim Skinner has a retort to CSPI on that too:

On this point, it seems that you purposefully skewed your evaluation of our Happy Meals by putting them in the context of a highly conservative 1,300 calorie per day requirement. I’m sure you know this category generally applies to the youngest and most sedentary children.

The youngest? Ages 4-8 seems to fit squarely into McDonald’s Happy Meal demographic. The most sedentary? So now McDonald’s is saying as long as kids hop on the treadmill, Happy Meals full of chicken nuggets, fries, and soda is A-OK? You won’t find a health professional (not on Big Food’s payroll) to go along with that idea.

Also, as CSPI also pointed out, in 2007, McDonald’s pledged not to advertise to children meals that have more than 600 calories, and even with the revised calorie listings, 4 of the 24 combinations are still in violation of that pledge. Whatever the calories, it appears McDonald’s is headed to court. Here is Steve Gardner, CSPI’s litigation director, in response to the McDonald’s letter:

We’re encouraged to read that McDonald’s is signaling a willingness to make changes that are in the best interests of its customers. We hope that McDonald’s takes us up on our offer to negotiate an end to the practice of using toys to market unhealthful foods directly to children. If it doesn’t, that will all but guarantee that we will have to resort to litigation.

Stay tuned.

Update: Reporter Melanie Warner called McDonald’s to get an explanation for the calorie change. A spokesperson claimed they were just correcting a mistake. You can read her take at BNET.

McDonald’s practices are predatory and wrong. They are also illegal, because marketing to kids under eight is (1) inherently deceptive, because young kids are not developmentally advanced enough to understand the persuasive intent of marketing; and (2) unfair to parents, because marketing to children undermines parental authority and interferes with their ability to raise healthy children.

McDonald’s makes my job as a parent more difficult. They market cheap toys that appeal to kids and it works. My kids always want to go to McDonald’s because of the toys. I try my best to educate my kids about healthy eating but it’s hard when I am competing against the allure of a new Shrek toy.

McDonald’s practice of dangling toys in front of children is illegal, regardless of what meal the child eventually gets. Not only does the practice mobilize “pester power,” but it also imprints on developing minds brand loyalty for McDonald’s. Because most of the company’s options are of poor nutritional quality, eating Happy Meals promotes eating habits that are virtually assured to undermine children’s health.

Through the Children’s Food and Beverage Advertising Initiative of the Council of Better Business Bureaus, McDonald’s pledged to advertise only Happy Meals that meet McDonald’s nutrition standards for children. However, that pledge fails to address McDonald’s insidious use of toys to market its products to children. Regardless of the Happy Meal combinations shown in advertising, the vast majority of possible Happy Meals are nutritionally inappropriate for children.

I’m sure that industry’s defenders will blame parents for not saying ‘no’ to their children. Parents do bear much of the responsibility, but multi-billion-dollar corporations make parents’ job nearly impossible by giving away toys and bombarding kids with slick advertising.