FOOD FASCISTS ATTACK ADVERTISING VIA THE COURTS

"Look!" exclaims my 3-year-old daughter, pointing excitedly at a box of cookies in the supermarket. "It's Dora! And Boots!" I nod and smile. "Yes, it is," I say, and we move on. I do not feel injured by this exchange. But according to the Center for Science in the Public Interest (CSPI), a D.C.-based health nanny group, if I lived in Massachusetts the incident would be worth at least $25 in statutory damages.

Using that sort of reasoning, CSPI, the Boston-based Campaign for a Commercial-Free Childhood, and two Massachusetts parents who would rather sue multinational corporations than stand up to their own children are seeking billions of dollars in damages from Viacom (which owns Nickelodeon, home of "Dora the Explorer" and Kellogg, maker of sugary breakfast cereals and other food products CSPI thinks your kids shouldn't eat. The plaintiffs say it's not about the money.

I believe them. This lawsuit, which CSPI and its allies plan to file under a Massachusetts consumer protection statute prohibiting "unfair or deceptive acts or practices," is really about censorship. By threatening onerous damages, CSPI aims to achieve through the courts what it has unsuccessfully demanded from legislators and regulators for decades: a ban on food advertising aimed at children.

The lawsuit argues that Viacom is on the hook for $25 "at a minimum" every time a kid in Massachusetts sees one of its characters attached to a "nutritionally poor" food product or sees an ad for such a product on Nickelodeon or in another Viacom outlet. By CSPI's reckoning, Kellogg owes $25 whenever a child sees one of its ads, so an Apple Jacks commercial on Nickelodeon is worth $50 per viewer every time it airs. "The injury continues ... each time a parent purchases one of these items," says CSPI in a letter announcing its intent to sue. So if a parent, helpless to resist a preschooler's demands, actually buys the Dora cookies or the Apple Jacks, that's another $25 in damages. You can see how the bill starts to add up.

But all the talk of injuries and damages is a charade. As obesity litigation advocate Richard Daynard notes in this month's American Journal of Preventive Medicine, one advantage of suing food companies under state consumer protection statutes is that it "avoids complicated causation issues." Most of these laws "do not require a showing that the defendant's misbehavior caused a specific illness," writes Daynard, a Northeastern University law professor who plans to join CSPI in using such statutes to stop soda manufacturers from selling their products in schools. Indeed, "many state consumer protection statutes do not require a showing that individual plaintiffs relied on the [defendant's] misrepresentations."

Under the theory pressed by CSPI in its suit against Viacom and Kellogg, you don't even have to show that the companies misrepresented anything. CSPI argues that children "are intrinsically deceived and abused by encouragement to eat unhealthy junk foods," and it's seeking an injunction to stop all such encouragement.

While I have no doubt that advertising encourages children to request certain products, what happens after that is up to their parents. Neither Viacom nor Kellogg has the power to dictate whether SpongeBob SquarePants Wild Bubble Berry Pop-Tarts are purchased, how often and in what quantities they're eaten, what else children eat or how much exercise they get.

"Nickelodeon and Kellogg engage in business practices that literally sicken our children," says CSPI Executive Director Michael Jacobson. Given the difficulty of demonstrating a causal connection between seeing Dora the Explorer on a box of cookies at age 3 and dying from obesity-related heart disease half a century later -- precisely the difficulty CSPI is trying to avoid by filing this kind of suit -- it would be more accurate to say these business practices figuratively sicken people like Michael Jacobson. The question is how much weight the law should give to Jacobson's queasy gut.

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