• by Karlene Lukovitz  @KLmarketdaily, December 15, 2010

Consumer group The Center for Science in the Public Interest (CSPI) has made good on its June warning that it would sue McDonald's if the QSR did not stop offering toy premiums with its children's Happy Meals.

The suit, which asks for class-action status, was filed Dec. 15 in California Superior Court in San Francisco on behalf of Monet Parham, a mother of two residing in Sacramento. The action is bound to raise the already high level of public debate about food marketing to children in the context of nutrition and obesity issues.

The suit charges that McDonald's is violating California's consumer protection laws because its giveaways of toys tied into movies and characters popular with children constitute unfair and deceptive marketing, and asks that the chain be prohibited from marketing meals with toys to children in the state. In addition to CSPI's litigation unit, Parham is represented by a private attorney, Richard Baker of Birmingham, Ala.

The suit does not ask for monetary damages. In a CSPI press teleconference announcing the suit, legal counsel said that the suit is "not about making money, it's about breaking state law," adding that it would be impractical to try to locate and dispense damages to fast-food purchasers if such damages were requested and awarded.

Parham, who described herself as a health educator working for the state, said she is concerned about her children's health and wants to limit their consumption of McDonald's food, but marketing of toys featuring popular children's characters puts her and other parents under heavy pressure to frequently have to say "no" to young children's requests to eat at the chain.

"What kids see as a fun toy, I now realize is a sophisticated, high-tech marketing scheme that's designed to put McDonald's between me and my daughters," Parham said in a statement.

CSPI cites FTC data from 2008 showing that fast-food companies spent over $520 million in 2006 on advertising and toys to market children's meals, with toys accounting for about two-thirds of that. It says that McDonald's is "far in the lead" in such spending, although it cannot quantify the chain's spending without gaining access to its records.

In response, McDonald's issued a statement saying that it is proud of its Happy Meals and intends to "vigorously" defend its brand, reputation and food. "We listen to our customers, and parents consistently tell us they approve of our Happy Meals," the statement said. "We are confident that parents understand and appreciate that Happy Meals are a fun treat, with quality, right-sized food choices for their children that can fit into a balanced diet."

In a letter responding to CSPI's June letter warning that it might sue, McDonald's CEO Jim Skinner said that CSPI "is wrong in its assertions and frivolous in its legal threats," adding that CSPI's "twisted characterization of McDonald's as 'the stranger in the playground handing out candy to children' is an insult to every one of our franchisees and employees around the world," Crain's Chicago Business reported at the time.

On Dec. 13, in an interview with Financial Times, Skinner responded to the recent vote by the San Francisco board of supervisors to prohibit restaurants from offering toy premiums with meals unless the meals meet specific calorie, fat, sodium and sugar limits. He characterized such groups as "food police" and said such restrictions take personal choice away from families "who are more than capable of making their own decisions." California's Santa Clara County passed a similar ordinance in regard to marketing children's meals with toys this past April.

In 2007, McDonald's released its pledge, as a member of the industry's voluntary Children's Food and Beverage Advertising Initiative, to direct 100% of national advertising to children under 12 to furthering the goal of "healthy dietary choices" on its menu (defined by the chain as those under 600 calories and no more than specified percentages of fat and sugar). McDonald's also pledged to limit use of licensed characters to the promotion of healthier choices.

The chain has introduced healthier kids' items: Its Happy Meals (hamburger, cheeseburger or Chicken McNuggets main selections) can be ordered with Apple Dippers and low-fat milk or apple juice, or with fries and soda. CSPI, however, says that in a study it conducted in 44 McDonald's outlets, fries were "automatically" included in Happy Meals 93% of the time, and soft drinks were the first choice offered to customers 78% of the time.

While acknowledging that "parents do bear much of the responsibility" for what their children consume, CSPI executive director Michael F. Jacobson, in a Marketing Daily interview in June, said that corporations "make parents' job nearly impossible by giving away toys and bombarding kids with slick advertising."

Marion Nestle, professor of nutrition, food studies and public health at New York University, sent this comment on the suit to Marketing Daily: "The current food environment did not get here by accident. It is deliberately designed to sell food products. Eating more and gaining weight as a result of this environment is just collateral damage. By now research demonstrates unequivocally that people cannot resist food marketing, kids especially. In my experience, parents want their kids to eat healthfully but don't want to fight with their kids about food. They would rather save the fights for other issues (sex, drugs, etc). So anything that can help change the environment to make it easier for parents to manage what their kids eat is a step in the right direction."

Needless to say, however, there continues to be substantial debate about the most effective means to reducing obesity in children and adults.

Commenting on the anticipated CSPI lawsuit on Dec. 9 in her alphabetofgoodhealth blog, Martha M. Grout, a physician and co-author of "An Alphabet of Good Health in A Sick World," noted that "many people feel that [regulations such as the toy marketing prohibition asked in the suit] this is an over-reach by the 'nanny state.' And it may be."

However, she added, this "begs the question: How do we intervene in the CDC projection that one in three people will have diabetes by the year 2050 unless something is done to curb unhealthy lifestyle trends in the United States?" Grout advocates a more well-informed discussion about complex dietary issues, and the role of "good" and "bad" fats in the diet, in particular.