Activists look to sue over cartoons in cereal ads

Saying Massachusetts could become a legal battleground in the war over childhood obesity, a Washington, D.C., nutrition group yesterday threatened a lawsuit here against the Nickelodeon cable network and Kellogg Co. for using cartoon characters like SpongeBob SquarePants and Tony the Tiger to sell junk food to children.

The Center for Science in the Public Interest gave the two companies 30 days to curb their junk food advertising to children under 8 or face a lawsuit under the Massachusetts consumer protection act that could trigger penalties in excess of $2 billion.

Michael F. Jacobson, executive director of the nutrition group, said the junk food advertising is a deceptive practice under the state law because children under 8 lack the capacity to differentiate between advertising and programming, particularly when cartoon characters like SpongeBob appear in both places.

''They think SpongeBob and all those cartoony characters are their friends," Jacobson said.

Kellogg, which makes Frosted Flakes and Froot Loops, declined to comment on the lawsuit but said it was ''proud of its products and the contributions they make to a healthy diet." Officials at Nickelodeon and the cable channel's corporate parent, Viacom Inc., did not return phone calls.

The Center for Science in the Public Interest, known primarily in the past for pestering government officials about nutrition issues and documenting the fat content of foods such as kung pao chicken and microwave popcorn, has taken its nutrition agenda to the courts more recently.

The group has won a few minor victories, but more recently it has pushed higher-profile cases in Massachusetts, where until this week the state's consumer protection act had been broadly interpreted by the Supreme Judicial Court.

The SJC has held that a violation of any consumer statute automatically triggered a violation of the consumer protection act and its penalties of $25 per incident. The court had allowed cases to proceed even when the plaintiffs suffered no direct loss.

But in a 5-2 decision this week in a case called Hershenow vs. Enterprise Rent-A-Car Co., the SJC appeared to retreat from its earlier positions. The court, in an opinion written by Chief Justice Margaret H. Marshall, held that Barry Hershenow could not sue Enterprise under the state's consumer protection act for violating numerous laws covering collision damage waivers unless he directly suffered a loss because of those violations.

Other similar cases are pending. If the court continues to rule as it did in Hershenow, it could make it tougher for the Center for Science in the Public Interest to prevail in cases it is preparing to file in Massachusetts.

Two weeks ago, the nutrition group notified Frito-Lay that it intended to sue the company in Massachusetts for failing to post warning labels on its reduced-fat chips containing olestra. It has also made no secret of its plans to sue soft drink companies here for selling sugared drinks in schools.

The planned lawsuit over junk food advertising aimed at children comes on the heels of a December report from the Institute of Medicine, a scientific group that advises Congress, which urged the food industry to spend its marketing dollars promoting nutritious foods. The report noted that evidence was limited on whether television advertising directly causes obesity in children.

Some companies have already responded. Kraft Inc. no longer runs ads for Oreos and Kool-Aid during shows watched primarily by children. Coca-Cola no longer advertises on shows with audiences predominantly younger than 12.

In preparation for its lawsuit against Kellogg and Nickelodeon, the Center for Science in the Public Interest said it analyzed 168 ads for food that appeared on Nickelodeon in September and October. The nutrition group said 148, or 88 percent, were for foods of poor nutritional quality.

The nutrition group also said it reviewed 27.5 hours of Saturday morning TV programs and found 54 commercials for Kellogg products, 98 percent of which were for foods of poor nutritional quality.

The nutrition group defined foods of poor nutritional quality as foods with either 35 percent or more of their calories from total fat, more than 10 percent of their calories from saturated and trans fats, more than 35 percent added sugars by weight, or high sodium concentrations.

Jacobson said parents have primary responsibility for making sure their children eat healthy foods, but he said they need help.

''They need some protection from these predators," he said. ''What kid isn't going to fall victim to this advertising and demand they eat the products. Maybe the parent will say no the first time or the first 20 times, but they don't want to always be saying no to their children."

Sherri Carlson, a Wakefield mother of three, said she agreed to be a plaintiff in the case because her children watch television and routinely ask for the junk foods they see advertised.

''I try to be firm, but I do have to compromise a lot and make exceptions," she said. ''I try to make unhealthy foods a treat rather than part of a regular diet."

Bruce Mohl can be reached at mohl@globe.com.