Fast food: Oppression through poor nutrition

California Law Review

Volumn 95, Issue 6, 2007, Pages 2221-2259

  Freeman, Andrea ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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[No Author keywords available]

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EID: 41949122419     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (294)

1. Food-related diseases and deaths include heart disease, stroke, diabetes, sleep apnea, and obesity.
2. For the purpose of this paper I have grouped African Americans and Latinos together, despite their many differences, to simplify discussion of food and health issues affecting both communities.
3. MICHAEL K. BROWN, ET AL., WHITEWASHING RACE: THE MYTH OF A COLOR-BLIND SOCIETY 24 (2003).
4. Iris Young provides an insightful definition of oppression based on five interconnected elements: exploitation, marginalization, powerlessness, cultural imperialism, and violence. IRIS YOUNG, JUSTICE AND THE POLITICS OF DIFFERENCE 40 (1990).
5. See BROWN, supra note 3, at 6 (explaining how "racial realists" such as Dihesh D'Souza, Jim Sleeper, Tamar Jacoby, Shelby Steele and Stephen and Abigail Thernstrom view the current state of racial politics in the United States).
6. For interesting new work on the current state of the food industry, see MICHAEL POLLAN, THE OMNIVORE'S DILEMMA: A NATURAL HISTORY OF FOUR MEALS (2006).
7. See also MARION NESTLE, FOOD POLITICS: HOW THE FOOD INDUSTRY INFLUENCES NUTRITION AND HEALTH (2002).
8. For an example of race-targeted marketing, see McDonald's "I am Asian" web page, http://www.i-am-asian.com/ (last visited June 20, 2007).
9. See generally ERIC SCHLOSSER, FAST FOOD NATION (2001) for a thorough and fascinating history of fast food and its effects.
10. Id. at 3.
11. Id. at 42.
12. Id.
13. As of 2004, McDonald's had 28,700 outlets in 120 countries. Id. Carefully manufactured chemicals ensure global taste consistency. Id. at 111-131.
14. Merriam-Webster's Online Dictionary, available at http://www.m-w.com/dictionary/fast%20food (last visited Aug. 19, 2007).
15. Answers.com, Word Origin: Fast Food, http://www.answers.com/topic/fast- food (last visited June 25, 2007) (citing America in So Many Words: Words That Have Shaped America, http://www.pbs.org/speak/words/trackthatword/ttw/?i=1006 (last visited June 25, 2007)).
16. In 2005, McDonald's made $25,643 million. Burger King at number 2, made $7,717 million. QSRMagazine.com, QSR 50 Segment Sales: Burgers, http://www.qsrmagazine.com/reports/qsr50/2006/charts/burgers.phtml (last visited August 4, 2007).
17. SCHLOSSER, supra note 8, at 31-59 (2001) (discussing Ray Kroc's life and successes).
18. QSRMagazine.com, The QSR 50: Service and Fast-Casual Restaurant Rankings, http://www.qsrmagazine.com/reports/qsr50/2006/charts/qsr50.phtml (last visited August 4, 2007).
19. CNNMoney.com, Report: McDonald's Admits to Fattier Fries, Feb. 8. 2006, http://money.cnn.com/2006/02/08/news/companies/mcdonalds_fat_fries/index. htm (last visited June 25, 2007).
20. There is some controversy about the utility of the glycemic index to health and nutrition. See David S. Ludwig & Robert H. Eckel, The Glycemic index at 20 y, 76 AM. J. OF CLINICAL NUTRITION 264S-265S (July 2002) (offering scientific perspectives on the controversy).
21. SCHLOSSER, supra note 8, at 111-33.
22. In February 2006, contrary to promises to reduce trans fats in their cooking oil as part of a settlement with public interest group BanTransFats.com, McDonald's announced that the oil actually contained one third more trans fat than previously reported. CNNMoney.com, Report: McDonald's Admits to Fattier Fries, supra note 18.
23. SCHLOSSER, supra note 8, at 193-222.
24. CRAIG SAMS, THE LITTLE FOOD BOOK 110-11 (2004).
25. SCHLOSSER, supra note 8, at 140.
26. Gilbert M. Gaul, Sarah Cohen & Dan Morgan, Federal Subsidies Turn Farms Into Big Business, WASH. POST, Dec. 21, 2006, at A01.
27. SAMS, supra note 23, at 47;
28. see also Gaul et al., supra note 25, at A01.
29. While fast food has also had a significant impact on other countries, the topic is beyond the scope of this paper.
30. SCHLOSSER, supra note 8, at 24.
31. Id.
32. McDonald's pioneered this method in the 1980s using Quintillion, one of the first geographic information systems available for business analysis. Jacob Ward, Better Directions: Digital Maps Are Changing How We Navigate Our Lives, WIRED MAG., Oct. 2005.
33. Chanjin Chung & Samuel Myers, Do the Poor Pay More for Food? An Analysis of Grocery Store Availability and Food Price Disparities, 33 J. CONSUMER AFF. 276-96 (1999).
34. Jane Kolodinsky & Michele Cranwell, The Poor Pay More? Now They Don't Even Have a Store to Choose From: Bringing a Supermarket Back to the City, 46 CONSUMER INTERESTS ANN. 1-2 (2000).
35. Shiriki Kumanyika & Sonya Grier, Targeting Interventions for Ethnic Minority and Low-Income Populations, 16 FUTURE CHILD 187, 194 (Spring 2006)
36. (citing J.P. Block et al., Fast Food, Race/Ethnicity and Income, 27 AM. J. PREVENTIVE MED., 211-17 (2004)).
37. See also L.B. Lewis et al., African Americans' Access to Healthy Food Options in South Los Angeles Restaurants, 95 AM. J. PUB. HEALTH 668-73 (2005).
38. Fruit and vegetable consumption are inversely associated with distance from home to supermarket. See Donald Rose and Rickelle Richards, Food Store Access and Household Fruit and Vegetable Use Among Participants in the US Food Stamp Program, 7 PUB. HEALTH NUTRITION 1081-88 (Dec. 2004);
39. see also Kumanyika & Grier, supra, at 193
40. (citing S.N. Zenk et al., Fruit and Vegetable Intake in African Americans: Income and Store Characteristics, 29 AM. J. PREVENTIVE MED. 1-9 (2005)).
41. See Bruce Katz, Enough of the Small Stuff! Toward a New Urban Agenda, 18 BROOKINGS REVIEW 4, 5-6 (2000).
42. See Kennedy Smith, Wanted: Downtown Grocery Stores, 63 PLANNING COMMISSIONERS J. 11 (Summer 2006) (offering further analysis of the obstacles to locating modern grocery stores in urban centers).
43. Wal-Mart provides the perfect example of this new type of multi-service store, which has been popular in Europe (the hypermarket) for several decades.
44. The economics of modern large grocery stores may be prohibitive, but small grocery stores can seize the opportunity to pick up the slack. See PolicyLink.com, Healthy Food Retailing: How to Develop New Grocery Stores, http://www.policylink.org/EDTK/HealthyFoodRetailing/ NewStores.html (last visited June 25, 2007).
45. SCHLOSSER, supra note 8, at 83-87 (explaining the numerous risks associated with fast food outlets, particularly those located in high-crime areas).
46. Jonathan Goldman cites the following statistics in his article on similarities between the tobacco and fast food industries: Thirty percent of Burger King's 1998 sales were from African Americans and Hispanics. In the same year, '25 cents of every $1 spent at McDonald's' was spent by an African American or Hispanic consumer. This amounted to total sales of $ 469 million from African Americans and $279 million from Hispanics. Jonathan S. Goldman, Take That Tobacco Settlement And Super-Size It!: The Deep-Frying Of The Fast Food Industry?, 13 TEMP. POL. & CIV. RTS. L. REV. 113, 117 18 Fall 2003. "By contrast, in 1998, African Americans made up 12.7% of the United States population and Hispanics comprised 11.2% of the United States population such that African Americans and Hispanics taken together comprised 23.9% of the United States population." Id. at 117 n.32;
47. see M.A. Pereira et al., Fast Food Habits, Weight Gain, and Insulin Resistance (The CARDIA Study): 15-Year Prospective Analysis, 365 LANCET 36-42 (2005).
48. For example, the United States Department of Agriculture found that only five percent of African Americans have a good diet. Guadalupe T. Luna, The New Deal and Food Insecurity in the "Midst of Plenty, " 9 DRAKE J. AGRIC. L. 213, 219 (Summer 2004).
49. U.C. Davis Medicine, Measuring Societal Influences on Nutritional Choices, http://www.ucdmc.ucdavis.edu/ucdavismedicine/issues/summer2005/ features/7.html (last visited August 4, 2007).
50. UNEQUAL TREATMENT: CONFRONTING RACIAL AND ETHNIC DISPARITIES IN HEALTH CARE 1-27 (Brian Smedley, et al. eds., 2002).
51. Non-white Americans face numerous life-threatening conditions at frighteningly higher rates than white Americans. African Americans have a 26% greater incidence of cancer (36% greater for prostate cancer), while an African American woman is 67% more likely to die of breast cancer than her white counterparts. African Americans have a 40% higher incidence of hypertension. Hispanic women suffer from heart disease at twice the rate of white women, and African American and Mexican American women face a 45% greater incidence of obesity. Hispanic men are 53% more likely to suffer from diabetes; African American men, 69% more likely, and African American and Native American women face more than two and three times higher rates of diabetes than white women. John Robbins, Racism, Food and Health, http://www.foodrevolution.org/ racismfoodhealth.htm (last visited June 25, 2007).
52. Mary Ann Bobinski, Health Disparities and the Law: Wrongs in Search of a Right, 29 AM. J. L. MED. 363, 367 n.24
53. (citing V. Haynatzka et al., Racial and Ethnic Disparities in Infant Mortality Rate -60 Largest U.S. Cities, 1995-1998, 51 MORBIDITY MORTALITY WEEKLY REP. 329, 331 (2002)).
54. Id. at 365, 367 (citing a study of cardiac care and mortality rates documented in Unequal Treatment);
55. see also id. at 316-19 (finding African-Americans were eighteen percent more likely to die than whites).
56. African-Americans also have a seven hundred percent higher death rate from HIV/AIDS. Id. at 367 n.24.
57. Id. at 367
58. (citing Donna E. Shalala, Message from the Secretary: Healthy People 2010, 1 U.S. DEPT. HEALTH & HUMAN SERV. 12 (2000), available at http://www.health.gov/ healthypeople).
59. SAMS, supra note 23, at 39.
60. Id. at 40.
61. Id.
62. Id.
63. According to the Centers for Disease Control and Prevention, about 27% of Blacks and 21% of Hispanics are obese compared to 17% of whites. Moreover, black and Hispanic women become obese 2.1 times and 1.5 times faster, respectively, than white women, while Hispanic men become obese 2.5 faster than white men. Black and white men develop obesity at the same rate until age 28, after which black men become obese 2.2 times faster than their white counterparts, according to a 17-year study of 9,179 people. Ross D. Petty et al., Regulating Target Marketing And Other Race-Based Advertising Practices, 8 MICH. J. RACE & L. 335, 358 (Spring 2003).
64. Sixteen percent of whites earning $50,000 a year are obese, compared with 23% obesity rates for whites earning $15,000 a year; 22.5% of blacks who earn $50,000 a year are obese compared with a 34% obesity rate for blacks earning $15,000 a year. David Barboza, Rampant Obesity, a Debilitating Reality for the Urban Poor, N.Y. TIMES, Dec. 26, 2000, available at http://query.nytimes.com/gst/health/article- printpage.html?res=980CE3D81238F935A15751C1A9669C8B63.
65. Kumanyika & Grier, supra note 33, at 188.
66. Id.
67. (citing B. Sherry et al., Trends in State-Specific Prevalence of Overweight and Underweight in 2- through 4-Year-Old Children from Low-Income Families from 1989 through 2000, 158 ARCHIVES PEDIATRIC & ADOLESCENT MED. 1116-24 (1994).
68. Bobinski, supra note 44, at 364.
69. Jessie A. Satia, et al., Eating at Fast-food Restaurants Is Associated with Dietary Intake, Demographic, Psychosocial and Behavioral Factors Among African Americans in North Carolina, 7 PUB. HEALTH NUTRITION 1089-96 (July 2004).
70. SCHLOSSER, supra note 8, at 20 (quoting John F. Love, company historian for McDonald's Famous Hamburgers).
71. Ironically, fast food actually costs more in poor neighborhoods than in wealthier ones. See Kathryn Graddy, Do Fast-Food Chains Discriminate on the Race and Income Characteristics of an Area?, 15 J. BUS. & ECON. STATS. 391, 401 (1997) (finding that meal prices in fast food restaurants rise approximately 5% for a 50% increase in the black population within a zip code area).
72. Regina Austin outlines many of these democratic characteristics of fast food chains in her insightful article on African Americans as employees and customers in the fast food industry. See Regina Austin, "Bad For Business": Contextual Analysis, Race Discrimination, And Fast Food," 34 J. MARSHALL L. REV. 207 (1999).
73. Although an African American customer has sued for being served after the white people in line behind him, this appears to be an extraordinary situation. See Robertson v. Burger King, 848 F. Supp. 78 (E.D. La. 1994).
74. Even though African Americans will often pay more for their fast food as compared to identical restaurants in other areas, prices within a store remain uniform among customers. Austin, supra note 60, at 228.
75. These measures also have disadvantages. They add to the cost of doing business in an urban neighborhood, and that cost may be passed on to the consumers who patronize that individual store, instead of being spread out among all customers generally; measures such as bulletproof Plexiglas partitions may serve to alienate rather than welcome customers; and implementing security measures may absolve fast food restaurants from liability for crimes occurring on their property even when the chosen measures prove inadequate. See, e.g., Godfrey v. Boddie-Noell Enterprises, Inc., 843 F. Supp. 114 (E.D. Va. 1994) (finding that the fact that a restaurant is located in a high-crime area or that similar crimes have occurred at the restaurant in the past is insufficient to create a duty to protect customers because Hardee's "method of business" does not attract or provide a climate for assault crimes). The Godfrey court equated crime with minorities, declaring that a rule designating responsibility for crime to business owners "would make it nearly impossible to operate a business in an area which might be populated predominantly by minorities or poor people."
76. Id. at 123. The considerable number of cases involving violent crimes at fast food restaurants suggests that this is a serious problem.
77. Consumers have successfully sued a number of pizza chains for refusing to deliver to certain neighborhoods based on unsubstantiated safety concerns. The threat of litigation led Domino's Pizza to enter into an agreement with the Department of Justice to implement policies ensuring geographic restrictions on deliveries would not be based on race or any other illegal criteria. Angry customers have also successfully attacked Denny's, a casual-style family restaurant classified as a step up from fast food, for engaging in discriminatory business practices. Austin, supra note 60, at 237, 239-40.
78. The downside of franchises' presence in urban neighborhoods is that their prices are higher than their corporate-owned counterparts. Francine LaFontaine, Pricing Decisions in Franchised Chains: A Look at the Restaurant and Fast Food Industry, Working Paper 5247, National Bureau of Economic Research (September 1995).
79. Slaves Made Map to Wellness, SACRAMENTO OBSERVER, Apr. 13, 2005, available at http://www.sacobserver. com/health/042505/slaves_wellness.shtml (last visited Sept. 3, 2007).
80. See, e.g., JESSICA B. HARRIS, THE WELCOME TABLE: AFRICAN-AMERICAN HERITAGE COOKING (1996);
81. see also PHOEBE BAILEY, AN AFRICAN AMERICAN COOKBOOK: LIVING THE EXPERIENCE (2002).
82. LEROI JONES, HOME: SOCIAL ESSAYS, Soul Food, 101-04 (1962).
83. Tracey N. Poe, The Origins of Soul Food in Black Urban Identity: Chicago, 1915-1947, in CAROLE M. COUHNIHAN, FOOD IN THE USA 92 (2002)
84. (citing ALEX HALEY & MALCOLM X, AUTOBIOGRAPHY OF MALCOLM X 59 (1964)).
85. Amiri Baraka distinguishes between soul food, which includes chitlins, potlikker, hoppin' John, and hushpuppies, and Southern cooking, which is limited to fried chicken, sweet potato pie, collard greens, and barbecue. Nonetheless, many people equate the two food traditions. Poe, supra note 69, at 92.
86. Marya Annette McQuirter & Tracye L. McQuirter, Red, Black and Greens: The Politics of Soul Food in the 1960s, www.blackvegetarians.org/ features/newfeature.htm.
87. ELIJAH MUHAMMED, HOW TO EAT TO LIVE (1967).
88. DICK GREGORY, CALLUS ON MY SOUL: A MEMOIR (2000).
89. M. Christina F. Garces & Lisa A Sutherland, Origins of the African American Diet: The Aftereffects of Slavery, http://www.faqs.org/nutrition/ A-Ap/African-Americans-Diet-of.html (last visited Aug. 19, 2007).
90. Id.
91. Other factors include the high cost of fruits, vegetables and lean meats and the greater availability and affordability of packaged and processed foods. Id.
92. Acculturation to the United States is significantly associated with greater fast food consumption that creates a risk of obesity in adolescents. Jennifer B. Unger et al., Acculturation, Physical Activity, and Fast-Food Consumption Among Asian-American and Hispanic Adolescents, 29 J. COMMUNITY HEALTH 467 (Dec. 2004).
93. Virginia S. Hinshaw, Measuring Societal Influences on Nutritional Choices, U.C. DAVIS MEDICINE, Summer 2005, available at http://www.ucdmc.ucdavis.edu/ucdavismedicine/features/7.html.
94. Id.
95. Theresa Braine, Latino Diet Changes Deemed Health Crisis, http://www.hacer.org/current/US181.php (last visited June 26, 2007).
96. Ross D. Petty et al., Regulating Target Marketing and Other Race-Based Advertising Practices, 8 MICH. J. RACE & L. 335, 342 (2003).
97. See generally NAOMI KLEIN, NO LOGO 87-105 (2000).
98. Jason P. Block et. al., Fast Food, Race/Ethnicity, and Income: A Geographic Analysis, 27 AM. J. PREVENTATIVE MED. 211, 214 (2004) (noting that "[f]or an average-sized neighborhood shopping area, predominantly black neighborhoods were exposed to six more fast food restaurants than predominantly white neighborhoods.").
99. See infra Part II.A.4.
100. Dina L.G. Borzekowski & Thomas N. Robinson, The 30-Second Effect: An Experiment Revealing the Impact of Television Commercials on Food Preferences of Preschoolers, 101 J. AM. DIETETIC ASS'N 30, 42-6 (2001).
101. See N. Chatterjee et al., Perspectives on Obesity and Barriers to Control from Workers at a Community Center Serving Low-income Hispanic Children and Families, 22 J. COMMUNITY HEALTH NURSING 23 (2005) (finding lack of safe places for walking and playing outside are a major obstacle to exercise).
102. Bryn Austin et al., Clustering of Fast Food Restaurants Around Schools: A Novel Application of Spatial Statistics to the Study of Food Environments, 95 AM. J. PUB. HEALTH 1575, 1578 (2005).
103. KLEIN, supra note 82, at 88-89.
104. Lisa Craypo et al., Fast Food Sales on High School Campuses: Results form the 2000 California High School Fast Food Survey, 72 J. SCH. HEALTH 78, 80 (2002).
105. KLEIN, supra note 82, at 89.
106. Id.
107. Id. at 91.
108. Low-income students who avoid consuming these brands at school either because the fast food companies do not accept federal vouchers or because they simply charge too much eat school-provided lunches of equally questionable nutrition. Happily, the problem of the lack of nutrition in school lunches has received more attention lately. The famous "naked chef Jamie Oliver has a program on the Food Channel where he attempts to revolutionize school lunches, and community groups have organized to provide nutritious lunches to students in underserved areas on a small scale. Id. at 90.
109. The Oakland school district banned soda and candy from its vending machines and New York City has banned junk food from its school vending machines. Anna Lappé, The PushPull of the Food Movement, Oct. 2003, http://www.consciouschoice.com/2003/cc1610/foodmovement1610.html (last visited June 26, 2007).
110. Craypo, supra note 89, at 80.
111. Id. at 78.
112. See Mary Story, Karen M. Kaphingst & Simone French, The Role of Schools in Obesity Prevention, 16 FUTURE CHILD. 109, Childhood Obesity Volume, Number 1 (2006), for a thorough analysis of the role of schools in child obesity.
113. Kumanyika & Grier, supra note 33, at 191
114. (citing D.F. Roberts, U.G. Foehr, & V.J. Rideout, Kids and Media at the New Millennium, Kaiser Family Foundation (1999)).
115. See also E.H. Woodward IV & N. Gridina, Media on the Home, 2000: The Fifth Annual Survey of Parents and Children, Annenberg Public Policy Center of the University of Pennsylvania (2000);
116. D.F. ROBERTS ET AL., KIDS AND MEDIA IN AMERICA, (2004).
117. African American girls currently consume more fast food and therefore more calories, fat, and sodium than white girls. Marcia Schmidt et. al., Fast Food Intake and Diet Quality in Black and White Girls, 159 PEDIATRIC ADOLESCENT MED. 626, 629 (2005).
118. Id. See also Barboza, supra note 53, at F5 (quoting Dr. Ross E. Andersen of Johns Hopkins University). Dr. Ross Andersen's study revealed that forty-two percent of black children, as opposed to twenty-six percent of white children, watched more than four hours of television daily.
119. Id.
120. Id.
121. Kumanyika & Grier, supra note 33, at 192
122. (citing L.F. ALWITT & T.D. DONLEY, THE LOW INCOME CONSUMER: ADJUSTING THE BALANCE OF EXCHANGE (1996)).
123. Id. at 198
124. (citing D.F. Roberts, U.G. Foehr & V. Rideout, Generation M: Media in the Lives of 8-18 Year Olds, Kaiser Family Foundation (2005)).
125. Id.
126. Robbins, supra note 43.
127. Lappé, supra note 94.
128. Barboza, supra note 53, at n.51.
129. Kumanyika & Grier, supra note 33, at 192
130. (citing D.L.G. Borzekowski & T.N. Robinson, The 30-Second Effect: An Experiment Revealing the Impact of Television Commercials on Food Preferences of Preschoolers, 101 J. AM. DIETETIC ASS'N 42-26 (2001)).
131. See also D.L.G. Borzekowski & A.F. Poussaint, Latino American Preschoolers and the Media, Annenberg Public Policy Center (1998);
132. G. Gorn & M.E. Goldberg, Behavioral Evidence on the Effects of Televised Food Messages on Children, 9 J. CONSUMER RESEARCH: INTERDISCIPLINARY QUARTERLY 200-05 (1982);
133. G. Hastings et al, Review of Research on the Effects of Food Promotion to Children Final Report Prepared for the Food Standards Agency, Centre for Social Marketing, University of Strathclyde (Sept. 22, 2003).
134. SAMS, supra note 23, at 163.
135. In the fall of 1999, these shows were Moesha, Malcolm and Eddie, Jamie Foxx and The Parkers. Manasi A. Tirodkar & Anjali Jain, Food Messages on African American Television Shows, 93 AM. J. PUBLIC HEALTH 439 (2003).
136. Id.
137. Id. at 441;
138. see also Kumanyika & Grier, supra note 33, at 192
139. (citing V.R. Henderson & B. Kelly, Food Advertising in the Age of Obesity: Content Analysis of Food Advertising on General Market and African American Television, 37 J. NUTRITION EDUC. BEHAVIOR 191-96 (2005)).
140. Id.
141. Id.
142. Barboza, supra note 53, at F5 (quoting Dr. Ross E. Andersen of Johns Hopkins University).
143. See also S.A. French et al., Fast Food Restaurant Use Among Adolescents: Associations with Nutrient Intake, Food Choices and Behavioral and Psychosocial Variables, 25 INT'L J. OBESITY 1823, 1851 (2001).
144. Kumanyika & Grier, supra note 33, at 198
145. (citing S.W. McNutt et al., A Longitudinal Study of the Dietary Practices of Black and White Girls 9 and 10 Years Old at Enrollment: The NHLBI Growth and Health Study, 20 J. ADOLESCENT HEALTH 27-37 (1997)).
146. Id.
147. (citing G. P. Sylvester et al., Food and Nutrition Messages in Film, 699 ANNALS N.Y. ACADEMY SCIENCES 294-95 (1993)).
148. Id. at 192
149. (citing S.A. Grier & A.M. Brumbaugh, Noticing Cultural Differences: Ad Meanings Created by Target and Non-target Markets, J. ADVERTISING 79-93 (Spring 1999)).
150. See also J.L. Aaker, A.M. Brumbaugh & S.A. Grier, Nontarget Markets and Viewer Distinctiveness: The Impact of Target Marketing on Advertising, 9 J. CONSUMER PSYCHOLOGY 127-40 (2000);
151. S.A. Grier & A.M. Brumbaugh, Consumer Distinctiveness and Advertising Persuasion, in Diversity in Advertising (Jerome D. Williams, Wei-Na Lee & Curtis P. Haugtveldt eds., 2004).
152. The documentary film McLibel shows some very striking footage of McDonald's advertisements featuring African American tennis stars Venus and Serena Williams and other spots conveying the message that regular consumption of McDonald's food leads to better health. MCLIBEL (Spanner Films Ltd. 2005).
153. Goldman, supra note 39, at 118.
154. Kumanyika & Grier, supra note 33, at 194 (citing G. X. Ayala et al., Restaurant and Food Shopping Selections Among Latino Women in Southern California, 105 J. AM. DIETETIC ASS'N 38-45 (2005)).
155. Lauren Swann, Better Living for Latinos, Jan. 1, 2006, http://www.preparedfoods.com/CDA/Articles/Feature_Article/ 810566cf40ad8010VgnVCM100000f932a8c0.
156. Kumanyika & Grier, supra note 33, at 192
157. (citing O. Appiah, Black, White, Hispanic, and Asian American Adolescents' Responses to Culturally Embedded Ads, 12 HOW. J. COMM. 29-48 (2001)).
158. See also O. Appiah, Ethnic Identification on Adolescents' Evaluations of Advertisements, J. ADVERTISING RESEARCH 7-22 (Sept.-Oct. 2001);
159. O. Appiah, It Must Be the Cues: Racial Differences in Adolescents ' Responses to Culturally Embedded Ads, in Diversity in Advertising (Williams, Lee & Haugtvedt eds., 2004).
160. Kumanyika & Grier, supra note 33, at 192
161. (citing C.A. Pratt & C.B. Pratt, Comparative Content Analysis of Food and Nutrition Advertisements in Ebony, Essence, and Ladies ' Home Journal, 27 J. NUTRITION EDUC. 11-18 (1995)).
162. See also C.A. Pratt & C.B. Pratt, Nutrition Advertisements in Consumer Magazines: Health Implications for African Americans, 26 J. BLACK STUDIES 504-23 (1996);
163. S.C. Duerksen et al., Health Disparities and Advertising Content of Women's Magazines: A Cross-Sectional Study, 5 BMC PUBLIC HEALTH 85 (2005).
164. For an example of activism around this issue, see Fact Sheet: Menthol Civil Rights Lawsuit, available at http://www.tcsg.org/tobacco/ minorities/menthfs.htm (last visited Sept. 3, 2007).
165. Ross D. Petty, et al., Regulating Target Marketing And Other Race-Based Advertising Practices, 8 MICH. J. RACE & L. 335, 352-53 (2003);
166. see also Fact Sheet: Menthol Civil Rights Lawsuit, supra note 125.
167. Fact Sheet: Menthol Civil Rights Lawsuit, supra note 125.
168. African American smokers suffer the highest rates of tobacco-related deaths and diseases. Heart disease, a tobacco-related condition and the leading cause of death in the United States, was thirty-eight percent higher in African American men than in white men and eightythree percent greater than for all men during 1990-1992. See Bruce Allen, African Americans and Mentholated Cigarettes, http://www.trdrp.org/research/PageGrant.asp?grant_id=1648 (last visited June 26, 2007).
169. For example, according to the Northeast Sustainable Agricultural Working Group, the total number of farms in the Northeast decreased by more than fifty percent between 1964 and 1997. Brian Braiker, Beets Not Burgers, NEWSWEEK, June 25, 2003, available at http://www.b-healthy.org/ Newsweek/.
170. African American land ownership has decreased from over 15 million acres in 1910 to less than 2.3 million in 2005 and it continues to erode. Denied access to markets and conventional lending institutions, African American farmers by necessity adopted sustainable agricultural practices before they became widespread. Mo'Better Food, http://www.mobetterfood.com/table.html (last visited June 26, 2007) (quoting The Federation of Southern Cooperatives Land Assistance Fund).
171. Kumanyika & Grier, supra note 33, at 193
172. (citing K. Morland et al., Neighborhood Characteristics Associated with the Location of Food Stores and Food Service Places, 22 AM. J. PREVENTIVE MED. 23-29 (2002)).
173. See also C.R. Horowitz et al., Barriers to Buying healthy Foods for People with Diabetes: Evidence of Environmental Disparities, 94 AM. J. PUBLIC HEALTH 1549-54 (2004);
174. Rodolpho M. Nayga Jr. & Zy Weinberg, Supermarket Access in the Inner Cities, 6 J. RETAILING CONSUMER SERVICES 141-45 (1999).
175. One study found that stores charged more for low-fat than regular milk. Kumanyika & Grier, supra note 33, at 193
176. (citing H. Wechsler et al., The Availability of Low-Fat Milk in an Inner-City Latino Community: Implications for Nutrition Education, 85 AM. J. PUBLIC HEALTH 1690-92 (1995)).
177. Healthy People 2010, What is Healthy People?, http://www. healthypeople.gov/About/whatis.htm (last visited June 26, 2007).
178. Healthy People 2010, What Are Its Goals?, http://www. healthypeople.gov/About/goals.htm (last visited June 26, 2007).
179. Shalala, supra note 47.
180. See Sandra Soo-Jin Lee et al., The Meanings of "Race" in the New Genomics: Implications for Health Disparities Research, 1 YALE J. HEALTH POL'Y L. & ETHICS 33 (2001).
181. This neglect resembles other political decisions that have had catastrophic effects on poor African Americans, such as the government failure to respond adequately to Hurricane Katrina.
182. Heart Healthy Home Cooking African American Style, http://www.nhlbi.nih. gov/health/public/heart/other/chdblack/cooking.htm (last visited June 26, 2007).
183. Id.
184. Id. at 2 (Introduction).
185. SAMS, supra note 23, at 42-43.
186. Large farms receive 54% of government subsidies even though they represent only 7% of American farms. Gilbert M. Gaul, Sarah Cohen & Dan Morgan, Federal Subsidies Turn Farms Into Big Business, WASH. POST, Dec. 21, 2006, at A01, available at http://www. washingtonpost.com/wp-dyn/content/article/2006/12/20/AR2006122001591.html.
187. SAMS, supra note 23, at 43.
188. Milk poses a particular danger to the general population from the injection of bovine growth hormone (BGH) into American dairy cows. The members of the European Union have banned the use of this hormone, while other countries, such as Canada, have refused to approve it. In the United States, the Food and Drug Administration approved the use of BGH at the insistence of the powerful multinational agricultural corporation Monsanto. Although some labeling requirements exist, they are confusing and ineffective at informing consumers of the grave health problems associated with human consumption of the hormone. Reporters' efforts to educate the public about BGH and its effects met with strong resistance from a local Florida Fox news affiliate, who buried the story then fired the reporters. The court upheld Fox's actions. New World Communications of Tampa, Inc. v. Akre, 866 So. 2d 1231 (Fla. 2 Dist. Ct. App.) (2003); see also Hidden Danger in Your Milk?, http://www.foxbghsuit.com/ home.htm (last visited June 26, 2007).
189. The Department of Agriculture provides loans to producers of barley, corn, wheat, peanuts, grain sorghum, oats, soybeans, and rice that enables them to store harvested production instead of selling it on the market when prices are low. United States General Accounting Office: GAO Report to the Ranking Minority Member, Nov. 23, 1999, www.gao.gov/cgi-bin/getrpt?GAO/RCED-00-9.
190. Edward A Chadd, Manifest Subsidy: How Congress Pays Industry-with Federal Tax Dollars-to Deplete and Destroy the Nation's Natural Resources, COMMON CAUSE NATIONAL MAGAZINE (Fall 1995), available at http://www.ccsi.com/~comcause/news/chadd.html
191. Id.
192. Id.
193. Id.
194. Even fast food that appears to be wheat and dairy free may not be: in February 2006 McDonald's announced that, contrary to its previous claims about its french fries, the fries actually contained wheat gluten and milk products. The revelation has exposed McDonald's to several lawsuits from customers who suffered allergic reactions to the fries. Christian Nordqvist, Fury at Milk and Wheat in McDonalds' French Fries, MED. NEW TODAY, Feb. 20, 2006, available at http://www.medicalnewstoday. com/healthnews.php?newsid=38082.
195. WebMD.com, Allergies: Living with a Wheat Allergy, http://www.webmd.com/ allergies/guide/wheat-allergy (last visited August 4, 2007).
196. Id. Health professionals have suggested a change in terminology to reflect these percentages, eliminating the label "lactose intolerant" and referring to adults who can tolerate milk as "lactose persistent." See Foodintol: Dairy - Lactose Intolerance and Milk / Casein Allergy, http://www.foodintol.com/dairy.asp (last visited June 26, 2007);
197. see also Milton Mills & Merlene Alicia Vassall, Biased Food Guidelines Ignore African Americans, Healthy School Lunches, http://www.healthyschoollunches.org/legislative/guidelines.html (last visited June 26, 2007).
198. Growth hormones in milk also create health problems for the general population. See U.C. Davis Medicine, supra note 41.
199. Chris Edwards, Empowering Citizens to Monitor Federal Spending, Cato Institute: Tax & Budget Bulletin (July 2006), http://www.cato.org/pubs/ tbb/tbb_0718-38.pdf (citing www.census.gov/govs/www/faads.html).
200. United State Department of Agriculture, MyPyramid Plan, http://www.mypyramid.gov/mypyramid/index.aspx (last visited June 26, 2007). On the Internet, the government site recommends portions of these food groups according to the age, sex and amount of daily physical activity the user indicates.
201. Mills & Vassall, supra note 152.
202. See also Salim Muwakkil, Food Pyramid Scheme, IN THESE TIMES, (2000), http://www.karlloren.com/diet/p38.htm (last visited Aug. 19, 2007).
203. Id.
204. U.S. Dept. of Agriculture, supra note 155.
205. Id.
206. Robbins, supra note 43 (quoting Milton Mills, M.D. of Physicians Committee for Responsible Medicine).
207. Muwakkil, supra note 156.
208. Many food advocates also hold this overlap responsible for the government's promotion of genetically modified foods. For informative exposés on links between the government, the food industry, and the corporations manufacturing and promoting genetically modified foods, see FED UP! THE FUTURE OF FOOD (Lily Films 2004);
209. see also FED UP! GENETIC ENGINEERING, INDUSTRIAL AGRICULTURE AND SUSTAINABLE ALTERNATIVES (Wholesome Goodness Productions 2002).
210. Robbins, supra note 43.
211. Children's Defense Fund, 13 Million Children Face Food Insecurity (June 2 2004), www.childrensdefense.org/site/DocServer/foodinsecurity2005.pdf? docID=482.
212. Mark Feinberg, Starving for Good PR: Corporations Force-Feed the Poor, BUS SOC'Y REV. 36 (Summer 1989), for commentary on the ineffectiveness of food banks.
213. Fast food companies give an overwhelming proportion of their donations to Republicans. In the 2000 election, McDonald's gave $ 479,537 to politicians, seventy-nine percent of which went to Republicans. Burger King gave $150,725 with ninety-seven percent going to Republicans. Tricon Global Restaurants, a conglomerate including Pizza Hut, KFC, and Taco Bell, gave $201,579, with eighty-six percent to Republicans. Goldman, supra note 39, at 128.
214. See infra Parts IV.C.i, IV.C.ii.
215. WLWT.com, Bush Bashes Junk Lawsuits at Wendy's HQ (Feb. 15, 2006) http://www.channelcincinnati.com/news/7084797/detail.html.
216. Despite this exemption, in February 2006 McDonald's succumbed to pressure from health advocates and began nutrition labeling in four US test markets. McDonald's Unveils Nutrition Labeling, http://www.foodfacts.info/blog/ 2006/02/mcdonalds-unveils-nutrition-labeling.html (last visited August 18, 2007).
217. For example, in the name of social and shareholder responsibility, cigarette giant Philip Morris invests in youth smoking prevention programs and anti-smoking advertising campaigns aimed at children. Philip Morris International, Why We're Working to Stop Children From Smoking, http://www.philipmorrisinternational.com/PMINTL/pages/eng/ysp/YSP.asp (last visited June 26, 2007). For a critique of this ad campaign, see http://tobaccofreekids.org/research/factsheets/pdf/0010.pdf.
218. Many leaders in communities of color also emphasize agency and the American dream, teaching young people that the only obstacles to their achievements are self-made. In this context, this rhetoric can be empowering for youth who are denied access to external resources to accomplish their goals.
219. Dismissal of McDonald's Obesity Law Suit Was Expected: Four Wins, One Loss, and Several Legal Theories Yet to Go, http://banzhaf.net/docs/mcd2no.html (last visited June 26, 2007); see also Akin Gump Strauss Hauer & Feld LLP, Litigation Alert: Second Circuit Reinstates Obesity Claims Against McDonald's: What Does it Mean for Your Company?, www.akingump.com/docs/ publication/730.pdf (last visited June 26, 2007).
220. Pelman v. McDonald's Corp., 237 F. Supp. 2d 512, 543 (S.D.N.Y. 2003) ("Pelman I") (granting leave to amend).
221. Id.
222. In July 2002, a month before the Pelman suit, Caesar Barber sued several fast food companies alleging failure to disclose levels of fat and salt in their products that caused obesity and health problems when consumed in large quantities. Barber sought compensatory damages and structural relief. He dropped the suit several months later. Howard M. Wasserman, Fast Food Justice, (Oct. 6, 2005) http://writ.news.findlaw.com/commentary/ 20051006_wasserman.html (last visited Aug. 19, 2007).
223. Pelman v. McDonald's Corp., 396 F.3d 508, 510 (2nd Cir. 2005) ("Pelman IF).
224. Pelman II, 396 F.3d at 512.
225. Id.
226. Pelman I, 237 F. Supp. 2d at 516.
227. Id. at 516 n.2.
228. Id. at 522.
229. Pelman I, 237 F. Supp. 2d at 531-32.
230. RESTATEMENT (SECOND) OF TORTS, § 402A, cmt. i. n19 (1965).
231. Franklin E. Crawford, Fit For Its Ordinary Purpose? Tobacco, Fast Food and the Implied Warranty of Merchantability, 63 OHIO ST. L. J. 1165 (2002/2003)
232. Id. at 529.
233. McDonald's USA Nutrition Facts for Popular Menu Items, http://www.mcdonalds.com/app_controller.nutrition.indexl.html (last visited June 26, 2007).
234. See JOHN VIDAL, MCLIBEL: BURGER CULTURE ON TRIAL (1997).
235. Pelman I, 237 F. Supp. 2d at 533.
236. Professor John F. Banzhaf III Webpage, http://banzhaf.net/ (last visited June 26, 2007).
237. Goldman, supra note 39, at 133.
238. For an argument against food litigation, see Joseph P. McMenamin & Andrea D. Tiglio, Not the Next Tobacco: Defenses to Obesity Claims, 61 FOOD DRUG L.J. 445 (2006).
239. Goldman, supra note 39, at 147.
240. To the extent that this might contribute to hunger in certain communities, this would not in fact represent a positive outcome.
241. There has been some indication that forthcoming studies will prove a link between consumption of foods high in fat and sugar, neurochemical changes, and addictive behavior in rats. Michelle M. Mello et al., The McLawsuit: The Fast Food Industry and Legal Accountability for Obesity, 22 HEALTH AFF. 207, 211 (2003)
242. (citing J. Leake & A. Porter, Burgers Are as Addictive as Drugs, SUNDAY TIMES, July 13, 2003).
243. Society for Neuroscience, Brain Briefings: Sugar Addiction (Oct. 2003), http://www.sfn.org/index.cfm?pagename=brainBriefings_sugarAddiction (last visited Aug. 19, 2007).
244. Commentators have suggested that Pelman failed due to the weaknesses of the plaintiffs' attorneys, not the strength of the claims. See Caleb E. Mason, Doctrinal Considerations for Fast-Food Obesity Suits, 40 TORT & INS. L. J. 75 (2004) (proposing that attorneys base future fast-food suits on consumer expectations and negligent design theories).
245. See John J. Zefutie, Jr., From Butts to Big Macs - Can the Big Tobacco Litigation and Nation-wide Settlement with States' Attorneys General Serve as a Model for Attacking the Fast Food Industry?, 34 SETON HALL L. REV. 1383 (2004), for further analysis of the future of fast food litigation.
246. H.R. Res 339, 108th Cong. (2004).
247. Thomas J. Lueck & Kim Severson, New York Bans Most Trans Fats in Restaurants, N.Y. TIMES, Dec. 6, 2006, at Al.
248. Id.
249. Id.
250. The Campaign to Ban Partially Hydrogenated Oils, http://www.bantransfats. com (last visited June 27, 2007).
251. Associated Press, KFC, Taco Bell Complete Switch to Trans Fat-Free Foods, Apr. 20, 2007, http://www.foxnews.com/story/0,2933,269154,00.html.
252. For a fascinating article about the political implications of this film, see Regina Austin, Super Size Me and the Conundrum of Race/Ethnicity, Gender, and Class for the Contemporary Law-Genre Documentary Filmmaker, University of Pennsylvania Law School, Research Paper No. 07-24.
253. Internet Movie Database, Inc., Box Office / Business for Super Size Me (2004), http://www.imdb.com/title/tt0390521/business, for box office statistics.
254. See also Rotten Tomatoes, Super Size Me (2004), http://www.rottentomatoes.com/rn/super_size_me/numbers.php, for ranking statistics.
255. Defamer.com, MTV Won't Air Super Size Me Commercial (May 27, 2004), http://www.defamer.com/hollywood/movies/mtv-wont-air-super-size-me- commercial-009994.php. MTV denied this version of the events surrounding the commercial.
256. See Gregg Kilday, IDP Has Beef With MTV Over Super Size Me Ads, HOLLYWOOD REPORTER (May 27, 2004), available at http://hollywoodreporter.com/thr/article_display.jsp?vnu_content_id= 1000520016.
257. Wikipedia.org, Super Size Me, http://en.wikipedia.org/wiki/ Super_Size_Me (last visited June 28, 2007).
258. Defamer.com, MTV Won't Air Super Size Me Commercial (May 27, 2004), http://www.defamer.com/hollywood/movies/mtv-wont-air-super-size-me- commercial-009994.php.
259. Wikipedia.org, Super Size Me, http://en.wikipedia.org/wiki/ Super_Size_Me (last visited June 28, 2007).
260. DePauw University Webpage, Fast Food Nation Author Eric Schlosser to Deliver Ubben Lecture November 11, http://www.depauw.edu/news/index.asp?id= 12983.
261. Internet Movie Database, Taglines for Fast Food Nation (2006), http://imdb.com/title/tt0460792/taglines.
262. SCHLOSSER, supra note 8, ch. 9.
263. Id. atchs. 7-8, 10.
264. U.S. Department of Agriculture: National Agricultural Library, Community Supported Agriculture, http://www.nal.usda.gov/afsic/pubs/csa/ csa.shtml (last visited June 28, 2007).
265. Mo' Better Food: Connecting Black Farmers to the Urban Community, http://www.mobetterfood.com/table.html (last visited June 28, 2007).
266. Lappé, supra note 94.
267. Id.
268. People's Grocery: Healthy Food For Everyone!, http://www.peoplesgrocery. org/mission.html (last visited Sept. 3, 2007).
269. Id.
270. Id.
271. Gregory Dicum, Green: Produce to the People!, SFGate.com., Mar. 9, 2005, available at http://sfgate.com/cgi-bin/article.cgi?f=/g/a/2005/03/ 09/ gree.DTL&hw=dicum&sn=002&sc=987.
272. Brahm Amadi, Malaika Edwards, and Leander Sellers are the co-founders of People's Grocery.
273. Dicum, supra note 219.
274. Id.
275. Janine De Fao, Two Youths Work to Cure City of Fast Food Habit, S.F. CHRON., Aug. 1, 2004, at B-2.
276. Id.
277. Id.
278. Id.
279. Braiker, supra note 129.
280. Id.
281. Mark Winston Griffith, The "Food Justice " Movement: Trying to Break the Food Chains, BLACK COMMENTATOR, http://www.blackcommentator.com/70/70_foodjustice_pf.html (last visited June 28, 2007).
282. Id.
283. JustFood.org, Food Justice and the Public Good: A New York City Summit on Farms and Food, www.justfood.org/press/docs/ Just_Food_press_release_rev1-BR2.pdf (last visited June 28, 2007).
284. Larissa MacFarquhar, The Conciliator, NEW YORKER, May 7, 2007, at 2.
285. One innovative article proposes performance-based regulation of the food industry. Stephen D. Sugarman & Nirit Sandman, Fighting Childhood Obesity Through Performance-Based Regulation of the Food Industry, 56 DUKE L.J. 1403 (2007).
286. In May 2005, Detroit mayor Kwame Kilpatrick proposed a two percent tax on all items sold in fast food restaurants, with the proceeds going into the city budget. New York Assemblyman Felix Ortiz proposed a one percent tax on junk food, video games, and television commercials with the proceeds going to fund anti-obesity programs. Sarah Karush, Detroit Considers Fast Food Tax, CBS NEWS, May 9, 2005, http://www.cbsnews.com/stories/2005/05/09/politics/ main693793.shtml.
287. Yale Professor Kelly Brownell introduced the idea into the national consciousness in a 1994 New York Times editorial. Kelly Brownell, Get Slim With Higher Taxes, N.Y. TIMES, Dec. 15, 1994, at A29.
288. On the other hand, reducing the number of fast food restaurants in poor urban areas would adversely affect employment opportunities in those communities. A discussion of this problem and potential solutions is beyond the scope of this paper.
289. At the 2003 American Public Health Association Meeting, Public Health Institute attorney Ed Bolen called for minimum age requirements to buy certain junk foods. Center for Consumer Freedom, Public Health Activists vs. Consumer Freedom: Video Highlights, Dec. 4, 2003, http://www.consumerfreedom.com/ news_detail.cfrn/headline/2248.
290. Marice Ashe et al., Land Use Planning and the Control of Alcohol, Tobacco, Firearms, and Fast Food Restaurants, 93 AM. J. PUBLIC HEALTH 1404 (Sept. 2003).
291. The Elephant in The Room: Evolution, Behavioralism and Counteradvertising in the Coming War Against Obesity, 116 HARV. L. REV., 1161, 1180-84 (2003) (arguing that the line between commercial speech and fully protected speech will soon be so blurred so as to render advertising bans unconstitutional, and that counter-advertising of the same type and quality of private-sector advertising represents the most promising tool to undermine the fast food industry's power).
292. Merely posting nutrition information is unlikely to affect youth food choices. Julienne A. Yamamoto et al., Adolescent Fast Food and Restaurant Ordering Behavior With and Without Calorie and Fat Content Men Information, 37 J. ADOLESCENT HEALTH 397-402 (2005).
293. California now bans soft drinks in elementary, middle, and high schools, has a nutritional standard for vending machine snacks, and requires more fruits and vegetables in school lunch programming. Although not perfect, these laws are a step in the right direction. 2005 Cal. SB 12; 2005 Cal SB 965.
294. This type of legislation has already been implemented in several European countries. Anthony N. DeMaria, Of Fast Food and Franchises, 41 J. AM. COLLEGE CARDIOLOGY 1229 (Apr. 2003).