Magazine | March 10, 2014, Issue

Suing the Hand That Feeds You

State attorneys general contemplate a fast-food shakedown

It has long been observed that some laws serve as unhappy bellwethers, demonstrating that what was once commonsensical is now in need of codification. We do not, for example, have legislation that prohibits coprophagia because we presume that coprophagia is so unthinkable that legal interdiction is unnecessary. For the same reason have we traditionally avoided formalizing our opposition to marrying stepdaughters or to putting sweaters on pit bulls.

It is thus a rather depressing thing that anyone should have to remind the public, as Representative Lamar Smith of Texas did in 2005, that they are responsible for the consequences of their own decisions, and that government should not be in the business of encouraging “lawsuits that blame others for our own choices and could bankrupt an entire industry.” Back then, Smith was trying to rally support for the Personal Responsibility in Food Consumption Act, a measure that had become increasingly necessary during the first part of the decade as the number of frivolous lawsuits that obese Americans brought against food manufacturers piled up. Lamar’s bill failed twice — passing the House on two occasions but dying in the Senate.

It has not been resurrected since, which is a shame, for it is arguably needed now more than ever. Whatever reasonable libertarian objections there might be to the state’s interposing itself between private entities or declaring a particular area of litigation off limits, all free-marketeers can presumably agree that the government itself should be blocked from indulging nonsense lawsuits. And yet in a majority of states it is not — a fact that hasn’t gone unnoticed by the nation’s trial lawyers, who, Politico revealed in February, have begun to descend on state capitals and pitch to state attorneys general the preposterous idea that they should use the power of their office to sue the food industry into helping them close up the holes in their health-care budgets. “I believe,” said the ironically named Paul McDonald, a partner at the law firm that is pushing the tactic, “that this is the most promising strategy to lighten the economic burden of obesity on states and taxpayers and to negotiate broader public-health policy objectives.”

All of the usual objections about the role of personal responsibility and the appalling instincts of trial lawyers to one side, McDonald’s openness is as refreshing as it is alarming. As he inadvertently confirms, the play here has much less to do with any brave notions of “justice” than with taxation without representation — or, worse perhaps, with the government’s bypassing the political system in order to achieve by extortion a political and economic end for which it is unable to garner the votes.

The few commentators who have considered the proposal have correctly recognized that, tactically, it is the direct descendant of the successful Big Tobacco takedown of the late 1990s. Few, though, have observed that this is to its eternal discredit. In that execrable settlement, 46 states came together to bully more than $200 billion from the four big tobacco companies (which together controlled 97 percent of the market) in exchange for future protection from private lawsuits. It was, in other words, a classic shakedown. Ostensibly, the litigants were holding to account companies that had lied about their products, and replenishing the coffers of the governments that had been left paying for the medical care of the companies’ victims. In reality, the alleged mendacities were wildly overstated, and much of the money that was raised has been spent well outside its intended sphere. Regardless of one’s attitude toward smoking, the settlement was not exactly a picture of good government, nor is it a model that anyone should seek to emulate.

#page#Indeed, even if one has some sympathy with the means by which Big Tobacco was coerced, it seems reasonably clear that, there being no claims of trickery, fast food is another matter altogether. Mercifully, the courts seem reflexively to agree. Thus far, at least, every attempt to hold restaurants liable for the obesity of their patrons has failed. Sometimes, these endeavors have been almost comical. In 2002, a Bronx resident named Caesar Barber sought compensation from Wendy’s, McDonald’s, KFC, and Burger King after two heart attacks, diabetes, high blood pressure, dangerous cholesterol levels, and the acquisition of an extra hundred pounds or two prompted him to inquire whether the food in which he daily indulged might, in fact, be hurting him.

“I always thought it was good for you,” he told the BBC. “I never thought there was anything wrong with it.” Barber’s lawyer went one step farther, telling the Associated Press that his client was not merely ignorant but also was suffering from the mendacity of a rapacious industry. There’s a “direct deception,” he argued, “when someone omits telling people food digested is detrimental to their health.”

This, naturally, is an absurd standard. Are we really to presume that any seller who fails to explain the commonly understood downsides to the product that he sells is engaged in cozenage? One suspects not, and neither, ultimately, did Barber, who withdrew his suit after being roundly mocked. In a similar case filed that year, in which the parents of two obese teenage girls sued McDonald’s over their daughters’ health probems, the judge agreed with the roughly 90 percent of respondents in a Gallup poll who opposed “holding the fast food industry legally responsible for the diet-related health problems of people who eat fast food on a regular basis.” Dismissing the case, the justice asked aloud, “Where should the line be drawn between an individual’s own responsibility to take care of herself and society’s responsibility to ensure others shield her?” The complaint, he concluded, “fails to allege the McDonald’s products consumed by the plaintiffs were dangerous in any way other than that which was open and obvious to a reasonable consumer.”

This was a sensible outcome to a senseless suit, and the prologue to a story that was told many times over during what was, thankfully, a brief craze. Nevertheless, as the country’s most unscrupulous litigators like to remind their would-be clients, past performance is not a sure indication of future results. Certainly, all such cases have been thrown out up until now. But then attempts to take down the tobacco companies had been, too. And ugly precedents have been set elsewhere. In Brazil, in 2010, a former McDonald’s manager succeeded in extracting $17,500 from the company after he convinced a judge that his weight was the fault of his former employer’s having given him free lunches. (He had put on 65 pounds over the course of twelve years, or 5.4 pounds per year — hardly a monstrous amount.)

So often in life, one wishes that one had only had a little more time to prepare. Events take us by surprise and, before long, we sit around saying, “If only we’d known.” In this case, the legal profession is making clear what it intends to do. The consequences would be deleterious — both for the principle of individual responsibility and for the capacity of private enterprise to offer its services without fear of capricious shakedowns. Will Congress heed the warning?

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