Denny's Going the Way of Philip Morris

Ali Savino runs the food site www.GastroNomalies.com.

Late last week, Center for Science in the Public Interest announced they were filing a lawsuit against Denny's on behalf of a New Jersey man.  The suit alleges that Denny's endangered its customers by not disclosing the astronomically high amount of sodium in their food:

The suit contends that many of the meals at Denny’s contain more in the one meal than is recommended for an entire day. An example is Denny’s double cheeseburger which contains 3,880 milligrams. The lawsuit is asking the court to order to order Denny's to list the sodium content of its food on the menu.

Another meal heavy in sodium is the Meat Lover's Scramble which contains 5,690 milligrams. This meal includes eggs scrambled with cheese,, bacon, diced ham and sausage that comes with more meat on the side plus hash browns and pancakes.

The recommended daily allowance of sodium is 2300 milligrams.  For those at risk of heart disease and hypertension, the acceptable level drops to 1500 milligrams. The Meat Lover's Scramble has 2 and 1/2 days worth of sodium in one sitting. Of course, Denny's is taking one out of the McDonald's playbook, calling the suit ridiculous and frivolous.  McDonald's has been sued more than once going back as far as 10 years for causing health problems in their diners, and so far McDonald's has managed to win in the courts:

NEW YORK (CNN) - A lawsuit alleging food from McDonald's restaurants is responsible for making people obese got thrown out by a federal judge Wednesday.

The landmark legal action was the first of its kind against a fast-food chain to make its way into a U.S. courtroom.

McDonald's spokesman Walt Riker said that common sense had prevailed in the suit. "We said from the beginning that this was a frivolous lawsuit. Today's ruling confirms that fact."

The Denny's lawsuit will be a very hard case to make.  However, as the Obama campaign has shown, its important to take a long ball strategy to public perception.  The long history of tobacco litigation is instructive here.

The first tobacco lawsuits were filed in the 1950s, but almost always failed. The tobacco companies argued that the harmful effects of smoking had been recognized for decades; people choose to smoke and so are personally responsible if they suffer ill effects. Slate: A Tobacco Lawsuit Primer (April 25, 2000)

In the late 1990s, plaintiffs began introducing scientific documentation of the chemical dependency generated by smoking—and proof that the tobacco companies were well aware of its addictive properties. Slate: A Tobacco Lawsuit Primer (April 25, 2000) The first successful tobacco lawsuit was awarded in February 2000, when a California jury ordered Philip Morris to pay $51.5 million to a California smoker with inoperable lung cancer. Slate: A Tobacco Lawsuit Primer (April 25, 2000)

It took 40+ years to start seeing results from the tobacco suits.  However, in the end it worked, and within the law community it is widely acknowledged that the courts were able to do what legislation and regulation could not (pdf):

Where legislative and regulatory approaches fail, courts successfully have offered an alternative means of addressing the harm caused by cigarette manufacturers.  Successful product liability lawsuits against cigarette manufacturers shift health and productivity costs of smoking from families and third-party payers back to cigarette companies, forcing increases in cigarette prices.  These price increases reduce smoking rates, especially among children and teenagers.  Litigation thus has proven to be an effective public health strategy for reducing smoking.

There is hope yet.  It will most likely be a long protracted fight that may take a generation or more.  At the end of the day there's a good chance that the Big Mac will go the way of the ashtray.

But if the campaign against smoking provides a model, it’s in the effort to label restaurant foods and expose the tactics of Big Food. It’s also recasting the folks who bring us bigger food as obesity dealers. As Kessler writes, “The greatest power rests in our ability to change the definition of reasonable behavior. That’s what happened with tobacco - the attitudes that created the social acceptability of smoking shifted.’’ Are we the addicted dupes of the Frappuccino?

The honchos at McDonald’s may never confess how the Big Mac made us bigger, and the food scientists at Frito-Lay may not explain why we “can’t eat just one’’ potato chip. But maybe this will be the year when an entree of chicken quesadillas with bacon, mixed cheese, ranch dressing, and sour cream - 1,750 calories - begins to look just a little bit more like an ashtray.