First they came for the beef and cheese nachos. Now they have come for Cold Stone Creamery’s Mud Pie Mojo. In a development that was as predictable as it is absurd, the killjoy cranks over at CSPI, the Center for Science in the Public Interest, have issued a report denouncing ice-cream shops for hawking “coronaries in cones.” Well, no surprise there. Writing in the July issue of Reason magazine, Jacob Sullum describes how the center (despite its name, it has nothing do with either science or the public interest) has a menu of menaces that must not be allowed anywhere near a dining room. These include fried mozzarella sticks (“just say no”), double cheeseburgers (“a coronary by-pass special”), and even fettuccine Alfredo (“a heart attack on a plate”). Hold the salt on those fries (Hypertension!), in fact, hold the fries too (Acrylamide! Cancer!), fly from buffalo wings, peel away from crispy orange beef and put down that “culinary equivalent of a loaded pistol,” a baked potato with butter, sour cream, bacon bits and cheese.
Danger doesn’t end with the main course. Desserts, such as the Cheesecake Factory’s notorious carrot cake, have also come in for stern criticism: It was, clearly, only a matter of time before Ben & Jerry’s, Haagen-Dazs, and even poor, bland, TCBY heard the knock on the door.
But does it matter? CSPI immodestly describes its researchers (even that seems too generous a word) as “food sleuths,” but for now, these self-appointed calorie cops have no warrant. This does not mean that their critics can relax. The center may peddle hysteria, half-truths, and the guilty pleasures of self-denial, but they have a way with the media and in the lunatic world of the gathering “war against obesity” theirs is likely to be an influential voice. For that reason, if no other, their crusade against cones is worth a closer look.
Let’s start with the hype. No campaign of this type is complete without a crisis. The Greens make Chicken-Licken look like an optimist, the gun-control crowd never cease to amaze with their tales of carnage and then, of course, there’s “passive smoking.” The junk-food jihadists are no less melodramatic. Sound the alarm! There’s an “obesity epidemic”! Why call it an epidemic? Well, epidemics demand a tough response. If Americans can be convinced that they are in peril from a plague of pudginess, there’s no saying what they won’t agree to.
CSPI’s ice-cream screed is a reminder that the center is a master of hyperbole, if not of science. Those “coronaries in cones” are capped by the warning that a Baskin-Robbins large Vanilla shake is “worse for your heart” than “drinking three Quarter Pounders,” a disgusting image that should not be allowed to obscure the fact that no food as such is bad for your heart. What matters is the overall composition of your diet, the amount of exercise you do, and so on. This report won’t tell you that. Instead CSPI’s propagandists prefer to pursue their morbid rhetoric of heart disease (“you’ll need… cholesterol-lowering …drugs” to cope with a Friendly’s Caramel Fudge Brownie Sundae) and death (a “super” version of one of Friendly’s Candy Shop Sundaes is for the “self-destructive”). Oh, please.
Hand in hand with the hype (indeed it’s a corollary of it) is the assumption that Americans are not responsible for what they eat. This gives the fat police an excuse (if people can’t control their eating then someone — usually government — must step in to do it for them) and the overweight an alibi — thus its appeal. At its most extreme this line of thinking manifests itself in the ludicrous claim that fast food is somehow addictive, but generally the girth Gestapo confine themselves to behaving as if the man at the lunch counter is not much more intelligent than the cow that went into his sandwich. He is, it seems, a dull, helpless dolt, unable to take a rational decision for himself, a clueless creature, powerless before the might of a well-crafted commercial.
This is the idea that underpins remarks by Jayne Hurley, a “senior nutritionist” for CSPI, that it is “as if these ice cream shops were competing with each other to see who could inflict the greatest toll on…arteries and waistlines.” That’s a good sound bite, but like a CSPI-approved diet, there’s not a lot to it. In reality, the only people “competing” to put on the pounds are the vanilla-chasing ruminants who choose (and that’s the word) to dine there. They may not know the exact number of calories involved (a key CSPI complaint), but, believe me, Jayne, the customers who opt for a Ben & Jerry’s Chunky Monkey in a chocolate-dipped waffle cone understand that it ain’t no health food.
The third, all too familiar, element in this drama is the feeble response of the food industry. In particular, management at Kraft Foods appears to have learnt nothing from the tobacco fiasco — despite sharing a parent company with Philip Morris. An essential part of any successful litigation against Kraft will be to show that the company owed a “duty” to protect its customers from their own greed. That’s an argument that is laughable, but it’s also lethal. The moment that the food companies concede that there’s something to it, they are in deep, deep trouble. Needless to say, this is exactly what Kraft has done. The company’s stock has fallen sharply, and deservedly so, since it made the announcement (about reducing portion sizes and calorie content) that will be a key building block in any case against it. Lemmings, of course, plunge in packs. PepsiCo and McDonald’s are amongst the other food giants busily making the same mistake.
There are early signs that the ice-cream chains may turn out to be just as misguided. The correct response to CSPI-style criticism is to say that consumers — and consumers alone — are responsible for the results of their overindulgence. Period. No more discussion. Pass the creamy peanut-butter sauce. Instead, there was, so to speak, a touch of waffle in the response from the Cold Stone Creamery. This included the observation that “lower calorie options for our customers…are also made available in all our stores.” So what? Even if the only treat on offer was regular sweet-cream ice cream with a Reese’s Peanut Butter Cup, roasted almonds, and hot fudge in a chocolate-dipped waffle cone (1,400 calories!), that shouldn’t matter. No one is forced to buy it, and if you do, the consequences are yours and yours alone.
But if we have a leaner future ahead of us, the same is not true of trial lawyers. They may well have a very rich feast to look forward to. There is one obstacle they will have to watch out for, however. Tobacco litigation was in one sense relatively straightforward. If some wheezing patient could be shown to have puffed away at a certain brand of cigarettes for years, the first steps of a case against the manufacturer of those smokes could then be taken. Imagine, though, the difficulty faced by a lawyer confronted by the potential junk-food plaintiff who has just waddled in through his door. The fees could be as large as the litigant, but who to sue? To be sure, there are trenchermen who confine their eating to just one spot, but most do not. Apportioning the blame for super-sized portions won’t be easy. Did the pizzas cause the damage or was it the pies, the pralines, the penne or, heaven forbid, the plaintiffs themselves? CSPI’s executive director has acknowledged as much. The ice-cream extravaganza, he says, has “something to do with the size of Americans’ pants,” but “no one disputes that the obesity epidemic has many causes.” True enough, and that simple fact could greatly complicate any litigation.
The best way for trial lawyers to avoid such difficulties will be to follow the precedent of that piece of extortion better known as the tobacco “settlement.” Rather than have to prove the cases of individual plaintiffs, with those tricky facts and awkward questions of causation, it will be far easier to claim that obesity has “cost” state and federal governments countless billions of dollars. Rapacious and unprincipled governments (that’s all of them, in case you wondered) will play along. It will be argued that the bill for obesity should be paid by the industry that allegedly created the problem. There will be dark talk of “misleading” advertising, “irresponsible” marketing and “dangerous” ingredients. As their legal expenses mount, companies will slim down menus, various tasty ingredients will disappear, and countless “advisory councils” on nutrition will be hired. It will do no good. Confronted by the power of big government and the greed of big law, big food will, so to speak, chicken out and negotiate a pay-off.
Get your Toffee Coffee Cappuccino Chiller while there’s still time.
— Mr. Stuttaford is a writer living in New York.