Politics & Policy

Battling The Fat Suits

Congress poised to debate restricting food litigation.

We may have eventually won the first Battle of the Bulge, but in America’s war on fat, we are losing — or in this case, gaining — big time. Ever since then-Surgeon General David Satcher issued a call-to-arms in 2001, fighting obesity has become something of a national goal. Just this month (as Frances Smith wrote on NRO) Kraft Foods announced that it would limit serving sizes and improve product nutritional labeling in an effort to fight obesity. Kraft’s announcement follows a string of lawsuits targeting food producers, including a suit filed against Kraft’s Oreo cookies for containing allegedly harmful “trans fats.” If left unchecked, these lawsuits will cost the industry millions; the price tag will be passed on to consumers in the form of higher prices and lower quality.

With tobacco and asbestos settlements waning, trial lawyers are in search of their next buck. If it wasn’t already obvious that food was a good target, Satcher made it blatantly clear: “Overweight and obesity may soon cause as much preventable disease and death as cigarette smoking. People tend to think of overweight and obesity as strictly a personal matter, but there is much that communities can and should do to address these problems.”

John Banzhaf, a George Washington University public-interest law professor, trial lawyer, and “legal terrorist,” could not have said better himself. Banzhaf, who is still heady over his defeat of the tobacco industry, has found a new target for his jihad against personal responsibility: “Big Food.” Meanwhile, his colleagues on the bar smelled fresh meat.

Deciding who to blame has never been a problem for trial lawyers, because the answer is simple: Whoever has the most money. But according to a recent study by the U.S. Chamber Institute for Legal Reform, trial lawyers have missed the target — “Big Food” is not the culprit. The discrepancy is an issue of causation vs. correlation. Although the prevalence of fast food has increased in tandem with American obesity, this is by no means proof of causation. In fact, as fast food has grown healthier with the addition of salads and other healthier alternatives, Americans have continued to gain weight. That may be because during the same period, Americans have grown drastically more sedentary. Finally, the study suggests that with the loss of structured workdays, the rise of telecommuting, and increasingly hectic evenings, more Americans are forced to snack instead of eating full, healthy meals. Obesity is the result of an overall lifestyle change.

Of course the trial lawyers weren’t going to listen. Caesar Barber, a 272-pound maintenance worker from the Bronx, sued McDonald’s, Wendy’s, Burger King, and KFC for causing his two heart attacks and diabetes. Barber told Connie Chung that despite both heart attacks and warnings from his doctor, he continued to eat fast food on a daily basis. Barber, understandably, quickly became a p.r. nightmare and his lawyers realized that a full-grown man was not the best vessel to convince a jury to disregard personal responsibility. But they weren’t giving up. In a second attempt, they drafted a class-action lawsuit against McDonald’s; this time they named children as the defendants. Who could blame the children?

Since then, a number of lawsuits have implicated “Big Food” with responsibility for the country’s “obesity crisis” among other ills. So far, most of the suits have been dismissed, if not laughed out of the court. In one decision U.S. District Court Judge Robert Sweet wrote that: “If a person knows or should know that eating copious orders of supersized McDonalds’ products is unhealthy and may result in weight gain (and its concomitant problems) because of the high levels of cholesterol, fat, salt and sugar, it is not the place of the law to protect them from their own excesses. Nobody is forced to eat at McDonalds. (Except, perhaps, parents of small children who desire McDonalds’ food, toy promotions or playgrounds and demand their parents’ accompaniment.) Even more pertinent, nobody is forced to supersize their meal or choose less healthy options on the menu.”

Faced with a string of defeats, a group of trial lawyers met in Boston last month for the First Annual Conference on Legal Approaches to the Obesity Epidemic. During the conference they discussed potential strategies for filing successful lawsuits, including “gorilla lawsuits,” which use largely unconventional tactics to force companies to capitulate. The discussion led Michael Jacobson, executive director of the Center for Science in the Public Interest, to say that it was “going to take a whole lot of lawsuits to make a difference in public policy that will affect the dietary habits of the thousands that suffer obesity-related disease.”

Banzhaf believes the problem lies in the unforeseen: problems that can only be addressed through corrective litigation, not preventative legislation. For instance, he believes that many foods are physically addictive, leaving their victims helpless. His evidence: a lone article from the February 2003 issue of the New Scientist magazine that describes a few preliminary studies that indicate that foods like chocolate contain potentially addictive ingredients. In light of this, he believes that processed food and fat should be treated no differently than tobacco and other addictive substances.

The previous lawsuits were likely only the opening salvos in what will be a long, costly fight — unless Congress preempts these frivolous lawsuits and passes Florida Republican Rep. Ric Keller’s Personal Responsibility in Food Consumption Act. Keller’s bill, which is currently being marked up in the House Judiciary Committee, aims to limit or eliminate liability for food producers from obesity lawsuits.

Among congressional Republicans, Keller’s bill has received wide support. Most recently, Republican Sen. Mitch McConnell (Ky.) announced that he would pursue similar legislation in the Senate. Opponents of Keller’s bill — primarily trial lawyers and paternalistic consumer advocates — claim that it eliminates some of the only protections against harmful foods. Rep. Mel Watt, a North Carolina Democrat and a ranking member of the House Judiciary Committee, believes that the bill subverts the legal process and denies citizens the right to a day in court. But proponents point out that the bill only protects producers that operate within applicable safety guidelines. Any unsafe or harmful practices would remain liable. If Keller’s bill succeeds, it could lead the way to further specific tort reforms in other, less controversial, industries.

Keller’s bill stands to eliminate an arduous, frivolous, and costly legal battle that only the trial lawyers can win — regardless of the outcome. Without legal protection, Banzhaf and his colleagues will eventually find a sympathetic judge and jury to award an astronomical settlement. Along the way, the food industry will lose millions, settling the majority of suits in an attempt to avoid a potential p.r. nightmare. Keller’s bill embraces personal responsibility and consumer choice while still protecting consumers and the food industry. “It is only a matter of time until one of these lawsuits gets traction,” says Lee Culpepper of the National Restaurant Association. “We really have to take them seriously.”

James Justin Wilson is an NR intern.

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