that the causation required in a traditional product liability case can be virtually impossible to prove, according to Gottlieb.
The use of consumer protection laws to prevent obesity can be much more effective, suggested Gottlieb. “State consumer protection laws offer a real opportunity to change practices around misleading, deceptive, and unfair marketing practices [for] food and beverages, particularly as they affect children,” he said. Such laws complement the authority of the Federal Trade Commission (FTC) by giving state attorneys general and, often, private parties rights of action to prevent unfair and deceptive practices in sales and marketing at the state level. In some cases and in some states, class actions are also available, so many consumers who were deceived can bring a single case.
Every state prohibits deceptive practices, and some also use language such as “unfair” or “unconscionable” practices. There are differences among the 50 states’ consumer protection laws that usually hinge on courts’ interpretation of what is deceptive, whether a victim relied on a particular misrepresentation, and what sorts of damages are available. Despite these differences, Gottlieb explained, all states prohibit representations that may mislead or deceive consumers.
Several recently decided cases in California used consumer protection laws in an effort to protect child health. In 2008, the case McKinniss v. General Mills targeted the makers of Trix Yogurt, Sunny Delight, and Froot Loops for deceptively implying the presence of fruit in their products. However, the court ruled that a reasonable consumer would never expect real fruit to be in these products. In 2008, the case Williams v. Gerber produced the same result, but the decision was reversed on appeal when the Ninth Circuit Court ruled that a consumer should not have to check the Food and Drug Administration (FDA)-mandated Nutrition Facts panel to verify front-of-package representations. If the McKinniss case had been appealed to the Ninth Circuit Court, said Gottlieb, that earlier decision might also have been overturned, suggesting that further cases of this type could be successful.
Food companies market both to parents and to children. Children can pressure their parents to buy something and also are the direct target of advertising. They spend billions of dollars on their own each year, and their primary spending category is sweets, snacks, and beverages. Adolescents spend almost $100 a week, although not all on food. “Marketing directly to youth is a very powerful tool for the industry, because so much money is getting spent directly by youth,” said Gottlieb. He noted that consumer protection laws protect the target of the marketing, whether children or parents.
The use of state consumer protection law requires understanding whether the purchaser was misled or deceived. Parents are adults and are held to a “reasonable consumer” standard—that is, they should act as a reasonably prudent consumer would act under similar circumstances. Children, on the