When it comes to food, everybody’s got an opinion. Same goes for parenting. Mix the two together and you’ve got the makings of a culture war. Witness the recent scuffle between Sarah Palin and Michelle Obama over the White House’s rather tame Let’s Move campaign aimed at ending childhood obesity.

So last month, when the Center for Science in the Public Interest announced it was filing a class action lawsuit to stop McDonald’s from using Happy Meal toys to market to children, the fierce and ugly backlash against the mother of two who was brave enough to attach her name to the case was predictable.

But I am not interested in debating good or bad parenting. Nor am I interested in arguing over whether this lawsuit is a good idea. How many calories are in a Happy Meal and whether you can ask for carrots instead of fries is irrelevant to me. I am not even going to give you all the scary data about how America’s kids are getting fatter and sicker. Nor do I care whether the cause is fast food or video games.

That’s all been done. Instead, let’s talk law. Because that minor detail seems to have eluded most of the national conversation about how food companies market to children.

Our legal system does not allow marketers to advertise just as they wish, either to children or adults. We have consumer protection laws because marketers aren’t exactly trustworthy. From time to time, they’ve been known to stretch the truth.

That’s why both at the federal and state levels, the law requires that advertisers not engage in deceptive marketing. Otherwise, they would have an unfair advantage over consumers. In other words, the law aims to provide a level playing field between the two parties. The key legal terms here are “deceptive” and “unfair.” Bear with me; I am saving you three years of law school and a grueling bar exam, not to mention years of debt.

Now, what about marketing to children? Ample science, along with statements by various professional organizations tells us that marketing to young children is both deceptive and unfair. Why? Because young children simply do not have the cognitive capacity to understand that they are being marketed to; they cannot comprehend “persuasive intent,” the linchpin of advertising. Here’s how the nation’s trade group for kids’ doctors puts it: “The American Academy of Pediatrics considers advertising directly to young children to be inherently deceptive, and exploits children under the age of 8 years.”

So, if advertising to young children is inherently deceptive, and deceptive advertising is illegal under federal law and in most states, how is it even happening? And doesn’t this mean that not just food, but all marketing to young children is currently illegal? I get this question a lot. The answer is yes.

It may seem unsettling to imagine so much illegal activity going on every single day, but it’s really not that unusual. The marketplace is chock-full of deceptive advertising that goes unchallenged–aimed at both adults and children. It’s the reality of a free marketplace and a government that lacks both the political will and resources to properly enforce the law. That’s why we sometimes need lawsuits to fill the void left by government agencies.

Now I am sure you legal eagles are just waiting to throw the First Amendment in my face. You’re thinking, but doesn’t free speech protect McDonald’s right to advertise? Yes and no. When it comes to kids, mostly no.

While the food industry likes to wrap itself in the Constitution, the truth is that the free speech clause under the First Amendment is not a blank check to advertise anywhere, anytime, or to anybody. Free speech protection must be balanced against other considerations, such as deceptive advertising. We have plenty of examples of the federal government stepping in to stop shady marketing claims, such as skin patches causing weight loss. Marketers cannot lie: that is not free speech. Thus, if advertising to small children is “inherently deceptive” it cannot be protected under the First Amendment.

Lest you think I am just some crazy activist lawyer who’s making up her own legal theories, I am not alone. In 2005, I coordinated a legal symposium on food marketing to children. Angela Campbell, professor of law at Georgetown University Law Center, wrote a compelling article in which she called on Congress to prohibit product placement and cartoon characters to market junk food to children. She argued that the First Amendment would not be a barrier to such a law because it does not protect deceptive marketing.

Last year, Jennifer Pomeranz, director of legal initiatives at the Rudd Center for Food Policy and Obesity at Yale University, published an article making a similar argument calling on the Federal Trade Commission to protect children from food marketing.

But if you still think that protecting kids is all up to parents because they are actually purchasing the Happy Meals, I asked Steve Gardner, litigation director at the Center for Science in the Public Interest and architect of the lawsuit, to respond to this argument.

His answer was simple and elegant: “Just because it’s possible for a parent to intervene doesn’t change the fact that what McDonald’s is doing is illegal.” In other words, there are often many ways that parents can act to protect their children but that doesn’t make it OK for others to break the law.

And that is exactly what McDonald’s is doing, until someone stops them.

Originally published on Grist

In 2004, Morgan Spurlock‘s documentary film Super Size Me debuted. In it, Spurlock eats McDonald’s food for 30 days straight. This extreme experiment sought to document the adverse health effects of the all-to-common practice of over-eating fast food, using himself as test subject. Indeed, Spurlock gained weight, scared his doctors when his liver went south, felt depressed, lost sexual function and more. But the film also became a sort of watershed moment, shocking general audiences and thereby playing a big role in spurring growth of the food movement. I met Spurlock recently while picking up my weekly farm share (we belong to the same local CSA), and he kindly agreed to talk about the food movement, changes in the fast food industry, and how his McDonald’s binge has affected his long-term health.

McDonald’s has gotten a lot of heat since Super Size Me came out. I thought it was amazing, for example, how much media attention that non-decomposing Happy Meal photography project recently got. Do you think your movie inspired people to be more brazen in taking on fast food companies?

I think people were already questioning them. Maybe it gave them reason to know they would not get sued afterward! I do think the film did open people’s eyes, and at least opened the door to an even bigger conversation.

Are you surprised at how the interest in food and agriculture has grown since you made Super Size Me?

Yeah, I think there’s a big trend, which I am also joining. Community Supported Agriculture (CSA), locally grown produce, whole farmshares and landshares are happening now. It seems like there has been, even a post-Slow Food movement–people wanting to get a healthier, better, more sustainable way of eating and living, which I think is fantastic.

You were an early pioneer of the food documentary. Do you ever consider making others?

There are great films that are out there that deal with food, [and] I think if there’s a way I can help champion some of those other filmmakers, I’d rather do that than go into making another food movie. For me, movies have to be something that if you don’t [make them], then you are going to go crazy. If you don’t tell this story, if you don’t put it on a page, if you don’t put it on film, then it is literally going to effect your brain from this moment forward. There may be something that comes along that kind of strikes me in that way, and if it does, I’ll have to tell it.

In what ways did making Super Size Me change the way you eat?

It was really after the film that I decided that I wanted to become part of a CSA, I wanted to support this whole locally grown movement. I think the biggest thing that happened after that movie was that it really turned me into someone who reads labels. It made me a really conscious consumer in a way I never had been, and I think that’s the greatest thing that could happen. I’m not going to tell anybody, hey, don’t eat fast food. I’m somebody who still loves to have a good burger, but I’m not eating a burger everyday. I may have a burger once a month.

Do you still eat fast food?

Never. [laughs]. When I am in California, I go to an In-and-Out Burger, and that is a fast food chain. But its a much smaller, and even more sustainable fast food chain. The meat when it comes in is still in a patty form, the french fries are still potatoes. There is a process of actually cooking food that happens at In-and-Out Burger. Part of the blessing of living in New York City, is that we can get all kinds of food fast. We can get good Italian food fast, we can get good Mexican food fast, I can get great Chinese food fast from a little mom-and-pop shop around the corner.

Have there been any long-term health effects following your McDonald’s binge?

I think the biggest thing is my ability to gain weight. Ever since making the movie, I can put on four or five pounds in a weekend so easily. Its incredible how my body has kind of lost its resiliency. Part of that comes with age, but it also comes with your body having all these additional fat cells that weren’t in your body before. As you create fat cells to store fat and you lose weight and those fat cells get smaller, they don’t magically vanish. They are still in your body, still swimming around waiting for you to overeat so they can store more fat.

For those of us who will never conduct such an experiment–Could you describe in one word how you felt physically after a month of eating only McDonald’s food?

Nauseous.

What do you think about the regulation of Happy Meal toys in San Francisco?

I think toys do make kids want to go to these places. But I think parents need to be brave enough to tell kids no. Parents need to claim some responsibility.

What needs to happen for fast food companies’ role to change in our society?

One of the things that is already happening is they are making companies put the calories and the fat content right up on the menus, which I think is a great idea. I think the more you can arm consumers with information, the more you start to leave the choice in their hands. In the movie we were trying to find the nutrition information [in McDonald's stores], and it was behind a door or in the basement. They didn’t even have it out. Its almost like they don’t even want you to know how bad the food is. [I think they should] let people know. Are people going to stop suddenly eating fast food? No. I mean, people haven’t stopped smoking cigarettes. That’s a product [that] when used correctly will kill you. So I think we need to arm people with as much information as possible and then ultimately let them make that choice.

You are from West Virginia. What did you think of Jaime Oliver’s Food Revolution?

I love Jaime Oliver and I loved his show. [But] I think that there were people, even people I’ve spoken to, who were turned off by the fact that there was a Brit in America kind of telling them what to do. I think that threw off audiences quite a bit and made it less accessible than it should have been. I know they are getting ready to do another version of the show, and what I think would be great in this next season is to really empower people to grow their own food. Go into these schools and build community gardens, like Alice Waters did. Get the kids hands in the dirt, get the community’s hands in the dirt. Let them do things that not only support their schools but support their local communities.

What would be your last meal on Earth?

A home-cooked meal by my mom. She is such a great cook. I would have mom cook up some pepper steak, mashed potatoes and green beans. And I am a big pie fan, but I love her chocolate cake. I’d probably have her make a three-layer chocolate cake with white icing.

Last Tuesday, 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.

Photo: Breakmould. via Flickr

Tonight in Washington, DC, a provocative ad tying fast food consumption to heart disease produced by the organization Physicians Committee for Responsible Medicine (PCRM) will air during The Daily Show and the local news. The spot features a woman crying over a dead man in a morgue, and in his hand is a hamburger. “I was lovin’ it,” appears on the screen, a play on McDonald’s slogan, and the voice over says, “High cholesterol, high blood pressure, heart attacks. Tonight, make it vegetarian.”

According to the PCRM, the city has the second-highest death rate in the nation from heart disease, killing 1,500 annually. In addition, DC has more fast food restaurants per square mile than eight other similarly sized cities. The group hopes to leverage these facts to push for a moratorium on the building of new fast food restaurants in DC.

After tonight’s debut, the group hopes to air the ad in cities like Chicago, Detroit, Houston, Los Angeles, Miami and Memphis. Take a look:

Walk into any McDonald’s in the UK, order an Egg McMuffin, and you’ll be served a cage-free egg. And by next year, all of the whole eggs sold in every McDonald’s in the European Union will come from cage-free hens.

On this side of the Atlantic, however, the story is a bit different. At present, every single egg McDonald’s sells in the U.S. comes from a hen confined in a battery cage—a barren enclosure so tiny, the birds can barely move an inch their entire lives. In fact, according to McDonald’s own U.S. egg supplier guidelines, each bird need have only a mere 72 square inches of cage space—less than a single sheet of paper.

McDonald’s-U.S. isn’t only lagging behind its European counterparts, it’s also lagging behind its own domestic competitors. Burger King started using cage-free eggs in the U.S. two years ago, and retailers such as Quiznos, Denny’s, Hardee’s and Carl’s Jr. also use cage-free eggs.

McDonald’s shareholders will soon receive proxies asking them to vote on The Humane Society of the United States’ resolution urging the fast-food chain to move in the right direction on this issue. Only time will tell what they may decide, but if recent history on the battery cage issue is a guide, there’s at least some reason for optimism.

Indeed, even McDonald’s own U.S. Animal Welfare Council member Diane Halverson opposes battery cages, recently writing, “The standard industry practice of confining laying hens in battery cages is an institutionalized cruelty that must be abolished.”

As well, in a landslide November vote, in a voter initiative, Californians approved the Prevention of Farm Animal Cruelty Act — also known as Prop 2 — a new law making it a criminal offense (with a phase-out period) to confine hens in battery cages, pigs in gestation crates and calves in veal crates. California is the top agricultural state, McDonald’s birthplace and home to hundreds of McDonald’s locations.

The momentum is certainly on the side of emptying the cages. This progress allows laying hens at least the mere ability to walk around, lay their eggs in nests, and engage in other very basic behaviors denied to battery hens. Hopefully McDonald’s will see the writing on the wall and take a more responsible approach to animal welfare. The company may be lagging behind its competitors on this issue, but it’s always better late than never when it comes to reducing the suffering of animals from whom we take so much.

You can tell McDonald’s what you think. Email them here, or call 1-800-244-6227

Photo: above Pork with Bones, below what battery hen cages (the kind raising eggs for McDonald’s) really look like.