Growing up in a Grimus high chair in the industrial hinterlands of Quebec, I was the perfect McDonald's mini-consumer. My little brother and I belted out their jingles and squealed at the sight of the Golden Arches. Soon chunky, sedentary, with a fierce appetite for bacon double cheeseburgers and hot fudge sundaes, I was being checked for cholesterol by the time I was 11, the year after my dad was told to choose between fried foods and a pulse, and four years before half my family went vegetarian. But in my greasy-cheeked heyday I would have been the perfect poster child for the storm of controversy that's now swirling around the fast food industry, threatening the supremacy of multinational greasy spoons. With obesity officially labelled the latest health epidemic south of the border and the recent release of a World Health Organization report stating that the world is getting chubby (yes, even here in Canada) thanks to, among other things, fatty, salty super-sized food, lawyers down south started sharpening their pencils.
Just last month, a conference of barristers, doctors and health advocates, led by the legal eagle who spearheaded the assault on Big Tobacco, John Banzhaf, gathered in Boston to hone their collective courtroom techniques against Big Food. When the first flurry of fast food lawsuits began last year (McDonald's faced two suits, accused of making two teens and one middle- aged man fat), many media pundits laughed at the possibility of blaming your drive-through for your spare tire. When the case of the Brooklyn teens, which alleged that McDonald's failed to make its nutritional information adequately available and made false claims of being healthy, was initially thrown out of court this past winter for being too vague, the ridicule of fat lawsuits reached a new peak.
"I wouldn't worry," says Banzhaf. "I was told authoritatively many years ago that we would never get one of our smokers even into a courtroom. It took us over 800 cases before we won with tobacco. And now we've won, as you know, billions of dollars."
Banzhaf has also just sent off legal notices to McDonald's, Burger King, KFC and others, demanding that they post labels warning consumers that tacos and burgers can be highly addictive. He buttresses his demands with references to what he says is a growing body of evidence indicating that fats and sugars can trigger heroin- and nicotine-like fits in the brain. "We'll give them six to nine months and see if they do put up the warnings. If they don't, then they may face a lawsuit," says Banzhaf.
"The whole premise is ridiculous and fuels disinformation about a very important subject," counters McDonald's spokesperson Anna Rozenich. "Consumers are very savvy and can discern the difference between legitimate science and this publicity ploy."
Despite such downplaying, threats of litigation have rattled industry on both sides of the border.
But even before all the legal drama, traditional burger and fry joints started loosing their sizzle. In early 2002, Fortune magazine labelled Mickey D's - whose stocks were down 42 per cent at the time - the "fallen arches." After half a century of aggressive expansion, the world was starting to have its fill of the chain, and the Big Mac mogul actually shut over 700 of its locations, pulling out throughout South America and the Middle East. With individual store sales down for the first time ever on both sides of the border (and around the world), McDonald's was finally dethroned by small-town sleeper hit Tim Hortons as this year's number-one food joint in Canada, beating out all the usual fast food heavyweights.
"We're really not just a donut shop any more," says Patti Jameson, VP of communications for the Oakville-based TDL Group (the company that oversees Tim's franchises across the continent), trying to explain their surprise rise. "We sell one out of every two bagels sold in food service, and we are the largest seller of soups in Canada. I think we present a very nice alternative (to burgers and fries) at a very reasonable price." Obviously, more and more Canadians agree.
But along with McDonald's, the rest of the fast food Big Boys have been suffering a slump. "For whatever reason, people are visiting quick-service restaurants a little less frequently than they were a year ago," says Jim Robinson, VP of NDP Group, a food service market research company. "That's the first time we've seen a decline in quick service on a 12-month basis in 10 years."
According to Robinson, since 9/11, young families and older baby boomers have grown tired of the quick slice and the drive-through dinner. Canadians in general have been breaking more bread in full-service casual restaurants with family and friends. They're even going so far as to eat - gasp - in their own homes. Another nail in the greasy fast food coffin?
Salads just might be Big Food's only hope. Profits, it seems, are up ever since Mickey D's introduced its lighter, lower-fat menu last summer with a massive marketing blitz. That's not to say that tossed salads account for a significant proportion of sales, but offering veggies has negated the veto power of that one family member who may deter a whole household from chowing down at the fast food giant.
Playing up the healthy card has helped the Subway chain skyrocket up the charts both in the U.S. and Canada, nipping at the heels of major players in decline. "When we ask young people to define what the healthiest fast food is, Subway's number one, followed by Tim Hortons," says Max Valiquette, president of Youthography, a Toronto-based marketing agency. "What I find interesting is that they know it's the healthiest and are choosing it as an option. They've made people like McDonald's sit up and take notice."
Whether or not these menus are actually healthy is questionable (would you like a donut with your mayo-laden sandwich?), but the impression of health is salvaging sales and legal costs.
Banzhaf sees the addition of salads, baked potatoes and veggie burgers to otherwise coronary-clogging menus as a clear sign that the industry is taking the threat of litigation seriously. Big Food has been lobbying Congress to support a bill that would outlaw any further lawsuits blaming restaurants for obesity. Banzhaf says this would be a shame, considering how effective such legal manoeuvring has already been at bettering public health. For instance, one California lawsuit was enough to push Kraft to announce just last week that it would start slicing back the fat content and portion sizes of all its products.
Canadian lawyers insist there's little chance of fast food lawsuits flying here. "The prospects for successful cases here are very low," says commercial law professor Michael Trebilcock, who adds that no tabacco suits have yet succeeded in this country. "The States has a more accommodating regime for plaintiffs, who could succeed by proving that a product is defective even though there is no negligence."
Meanwhile, Banzhaf says the dismissed McDonald's suit has been revised and is awaiting a new verdict. "If people want to scoff (at fast food lawsuits), fine. But this is déjà vu all over again," says the lawyer, referring to his now historic victories against the tobacco industry.