“Given that a 2003 Gallup Poll found that 89 percent of Americans don’t believe in blaming the fast-food industry for obesity, you’d think the bill is unnecessary. I take this vote as Washington’s way of recognizing that in America, a bad idea, given enough time, will gain support, take root and become law.” (Debra Saunders, “If you are what you eat, then sue”, San Francisco Chronicle, Mar. 12). “Victor Schwartz, a leading expert on tort law who has been advising the National Restaurant Association, says these lawsuits still face formidable obstacles. He thinks a greater danger to the industry is that at some point state attorneys general will start filing lawsuits demanding compensation for Medicaid expenses, as they did with tobacco.” (Jacob Sullum, “Fast Food Damnation”, syndicated/Reason, Mar. 5). Blogger Kevin Drum (Calpundit) is torn and, he says, open to argument: “On the one hand, I don’t think much of using civil damage suits aimed at a specific industry as a way of changing social policy. Down that road lies madness. But at the same time, I also don’t think much of Congress exempting specific industries from the civil justice system. That can lead to some madness of its own.” (Mar. 11). Vice Squad (Mar. 11) has links on various topics including McDonald’s elimination of its Supersize offerings and developments in the U.K. on food regulation. The roll call on Wednesday’s vote is here. (See Mar. 11 and links from there.) More: in a commentary for Knight-Ridder, Fort Worth editorialist Linda P. Campbell defends the suits (“A helping of tort with your fast food”, Nov. 12, 2003). Restaurants are feeling the heat (Kim Severson, “Make it a super size, then call your lawyer”, San Francisco Chronicle, Oct. 12, 2003).
Updating Wisconsin’s tempest in a cable box (see Jan. 7): “A man who blamed a cable TV company for his television addiction and his wife’s 50-pound weight gain said Thursday he won’t follow through with a threat to sue the cable operator. In an unusual news conference held in the basement of his West Bend home,” Timothy Dumouchel insisted that cable TV provider Charter was to blame for his family’s addiction to its televised fare, because it had failed to cut off service as requested, but said most of his dealings with the company had been pleasant and that he would not pursue legal action. Dumouchel also “said he never claimed his three children — ages 30, 23 and 16 — were lazy. He also said he knows people are snickering about him, and that his wife was angry about his statements on her weight gain.” (Lauria Lynch-German, Milwaukee Journal Sentinel, Jan. 9; “Man won?t sue over TV addiction”, AP/Appleton Post-Crescent, Jan. 9).
Parody, or just the next logical step? Timothy Dumouchel of West Bend, Wis. says he plans to sue cable TV provider Charter “because his cable connection remained intact four years after he tried to get it canceled. The result was that he and his family got free cable from August of 1999 to Dec. 23, 2003. ‘I believe that the reason I smoke and drink every day and my wife is overweight is because we watched TV every day for the last four years,’ Dumouchel stated in a written complaint against the company, included in a Fond du Lac police report.” (Lee Reinsch, “Man says he’s addicted to cable; wants to sue Charter”, Fond du Lac Reporter, Jan. 7) Update Jan. 13: he says he won’t sue.
Last week this site’s editor visited the Sooner State to speak to the Oklahoma Council of Public Affairs, in conjunction with which visit commentator/radio host Brandon Dutcher recorded this informal Q & A which touches on the tobacco and fast food litigation, the prophetic role of former Okla. Sen. Fred Harris, and more (“No Joke: Lawsuit Abuse Hurts Us All”, interview with Walter Olson, OCPA Perspective, August)
“A fast-food company like McDonald’s may not be responsible for the entire obesity epidemic,” litigious law prof John Banzhaf tells Time, “but let’s say they’re 5% responsible. Five percent of $117 billion is still an enormous amount of money.” Brian Murphy, a recent Rutgers law grad who attended this summer’s Northeastern U. let’s-sue-foodmakers confab, said: “It’s a very important and pressing issue, and its outcome will be with us for years to come. I’m hoping to be able to build a career out of this issue.”
However, even many anti-sweets activists gag at Banzhaf’s notion of suing school districts that enter vending-machine deals. “Brita Butler-Wall, executive director of Seattle-based Citizens’ Campaign for Commercial-Free Schools, has been lobbying the school board for more than a year to get rid of the Coca-Cola contract. Yet, as a parent of an eighth-grader in a local public school, she says, ‘I don’t want to see our district spending its money hiring more lawyers to fight a legal battle.’ Adam Drewnowski, director of the Center for Public Health Nutrition at the University of Washington, says, ‘If you want to influence the school board, you run for a seat on the board. Threatening a lawsuit is almost like blackmail. It’s just unconscionable.'” (Laura Bradford, “Fat Foods: Back in Court”, Time, Aug. 3).
Sen. Mitch McConnell and Rep. Ric Keller have introduced legislation to bar obesity-related lawsuits against food manufacturers and sellers. (See “US Senator in bid to fry fast-food lawsuits,” ABC News Online, July 18). “Many Americans need to take greater care in what–and how much–they eat. But it is also time to curb the voracious appetite of the personal injury lawyers and put an end to this ridiculous and costly litigation before it gets out of hand,” said McConnell, who managed to work in references to The Onion and diet guru Richard Simmons during his remarks on the Senate floor. For the text of the bills, see S. 1428 and H.R. 339. Apparently undaunted, humorist and Cheez-Its addict Dave Barry says he has decided to “summon up my willpower and accept personal responsibility for filing a huge lawsuit against Big Food.” (“Fatal Attraction,” Washington Post, Aug. 3). See our archives for earlier commentary on fast-food suits – real and satirical.
In other obesity lawsuit-related news, The New York Times has a round-up of employment-discrimination lawsuits brought by obese workers. The newspaper reports that plaintiffs take two different approaches under the Americans With Disabilities Act: “Some claim that their employers should not discriminate against them because they are disabled. Others, using an argument that has had more success in the courts, insist that they are not disabled, and that employers unfairly assumed they could not do the job.” Washington defense lawyer Peter Petesch said: “There’s no magical mathematical formula to say this obese person has a disability and this other person doesn’t. … It’s an individualized assessment. Generally, to be fat or dumpy-looking or not as good-looking as the other applicant isn’t enough to prevail under the Americans With Disabilities Act.” (Steven Greenhouse, “Obese People Are Taking Their Bias Claims to Court,” N.Y. Times, Aug. 4).
Per a Gallup Poll conducted July 7-9, “nearly 9 in 10 Americans (89%) oppose holding the fast-food industry legally responsible for the diet-related health problems of people who eat that kind of food on a regular basis. Just 9% are in favor. Those who describe themselves as overweight are no more likely than others to blame the fast-food industry for obesity-related health problems, or to favor lawsuits against the industry.” (Lydia Saad, Gallup News Service, Jul. 21). Some opinion pieces: Kathleen Parker, “A ludicrous premise for a lawsuit: Obesity is the food’s fault”, Chicago Tribune, Jul. 16(“It’s hell living in a rich country with too much to eat, isn’t it? … The idea that restaurants are trying to make food taste better by combining sugar or fat to their protein, also known as ‘cooking,’ hardly qualifies as criminal conduct.”; Robert Tracinski, “Reductio ad Totalitarianism”, Ayn Rand Institute, Jun. 26 (quotes our editor)(“The problem with the ‘reductio ad absurdum’ argument, one of my philosophy teachers once warned me, is that your opponent may simply embrace the logical end result of his ideas — no matter how absurd it is. And that’s exactly what is happening now.”); Patti Waldmeir, “In America it takes lawsuits to change lives”, Financial Times, Jul. 21 (“the point is publicity, not liability. … My children have never seen a McDonald’s advert: they know instinctively that fat is good”). Yet more: James Justin Wilson, “Battling the Fat Suits”, National Review Online, Jul. 21; John Stossel, “Give Me a Break!: Food Fight”, ABC News, Jul. 18.
The first lawsuits against fatty-food sellers were justifiably the subject of parody, but a few months later, without plaintiffs having won a single case, a USA Today front-page article treats the idea of big damages awards as a near-inevitable outcome, quoting two plaintiffs’ lawyers, and without a single quote from anyone suggesting that such lawsuits may not be good public policy. Such coverage has a tendency, of course, to be a self-fulfilling prophecy.
From an interview aired in Australia with the plaintiff in the McDonald’s obesity lawsuit:
CAESAR BARBER: I’m saying that McDonald’s affected my health. Yes, I am saying that.
RICHARD CARLETON: So what do you want in return?
CAESAR BARBER: I want compensation for pain and suffering.
RICHARD CARLETON: But how much money do you want?
CAESAR BARBER: I don’t know ? maybe $1 million. That’s not a lot of money now.
(Richard Carleton, “Food fight”, 60 Minutes (Australia), Sept. 25, 2002). Only three years ago the possibility of suits blaming food companies for obesity furnished The Onion with material for humor (Aug. 3, 2000). “The parody has become reality.” (James Glassman, “From parody to reality”, TechCentralStation, May 21; Michael I. Krauss, “Today’s Tort Suits Are Stranger Than Fiction”, Virginia Viewpoint (Virginia Institute), May). A House panel heard testimony yesterday on a bill that would stop such lawsuits in their tracks (Maggie Fox, “Is It Your Fault I’m Fat? Congress Hears Debate”, Reuters, Jun. 19; Bruce Horovitz, “Fast-food restaurants told to warn of addiction”, USA Today, Jun. 17). A CNBC poll, with 2000 votes as of midnight Friday morning, was running 92 to 8 percent against holding fast-food restaurants responsible for expanding waistlines.
Food, 2003: “Give me my million“, Jun. 20-22; “Lawsuit’s demand: stop selling Oreos to kids“, May 13 (& update May 16-18: suit dropped); “Fast-food opinion roundup“, Mar. 25-30; “They’ll be back for seconds“, Feb. 19; “Claim: marriage impaired by tough bagel“, Feb. 3; “Judge tosses McDonald’s obesity case“, Jan. 23 (& Jan. 27-28); “U.K.: coercive campaign to constrain Cadbury“, Jan. 20; “Anti-diet activist hopes to sue Weight Watchers“, Jan. 13-14.
2002: “California’s hazardous holiday” (acrylamide), Dec. 27-29; “Scourge of the Super-Size order“, Nov. 7; “WHO demands pretzel de-salting by law“, Nov. 1-3; Letter to the editor, Oct. 23; “Personal responsibility roundup“, Sept. 12; “Fat suits, cont’d“, Jul. 26-28; “‘Ailing man sues fast-food firms’“, Jul. 25; “Sin-suit city“, Jun. 10; “McArdle on food as next-tobacco“, May 27 (& Jun. 3-4); “Nader credibility watch” (calls fast-food restaurants “weapons of mass destruction”), May 24-26; “The mystery of the transgenic corn“, May 14-15; “‘Targeting “big food”‘“, Apr. 29-30; “‘Woman sues snack food company for spoiling diet’“, Apr. 23-24; “No more restaurant doggie bags“, Mar. 20-21; “Fast-food roundup“, Mar. 11; “King Cake figurine menace averted“, Feb. 1-3; “McMouse story looking dubious“, Jan. 25-27; “Life imitates parody: ‘Whose Fault Is Fat?‘”, Jan. 23-24. “‘Hot-dog choking prompts lawsuit’“, Jan. 2-3.
2001: “There’ll always be a California” (chocolate and Prop 65), Dec. 4; Letter to the editor (Wisc. exempts lutefisk from toxic-substance status), Nov. 29; “Disposable turkey pan litigation“, Nov. 23-25; “‘Diabetic German judge sues Coca-Cola for his health condition’” (candy bars too), Nov. 18; “‘Baskin-Robbins lawsuit puts family in dis-flavor’“, Aug. 2; “‘Couple sues over flaming Pop-Tart’“, July 30; “Feeling queasy?” (E. coli), July 27-29; “‘Man sues Rite Aid over stale jelly bean’“, July 20-22; “By reader acclaim: ‘Vegetarian sues McDonald’s over meaty fries“, May 4-6; “Woman settles hot pickle suit with McDonald’s“, April 16 (& Oct. 10, 2000); “Putting the ‘special’ in special sauce” (alleged rat in Big Mac), March 29.
2000: “You deserve a beak today” (McDonald’s chicken case), Dec. 6.
1999: “Are they kidding, or not-kidding?” (proposal for suits against makers of fattening foods), Nov. 15; “Toffee maker sued for tooth irritation“, Nov. 5-7; “More things you can’t have” (unpasteurized cider), Sept. 27; “Not just our imagination” (calls for class actions against fast food, meat industry), Sept. 25-26; “Taco Bell not liable for Ganges purification pilgrimage“, Aug. 30.
Beverages: “Litigation good for the country?” (Carl T. Bogus), Aug. 19, 2002; “British judge rejects hot-drink suits“, Mar. 29-31, 2002 (& Aug. 10, 2000); “‘Diabetic German judge sues Coca-Cola for his health condition’“, Nov. 18, 2001; “‘Group sues Starbucks over tea ingredient’“, Sept. 10; “By reader acclaim” (maker of cup holder), Jan. 11, 2001; “‘Court says warning about hot coffee unnecessary’” (Nevada Supreme Court), July 18, 2000; “Now it’s hot chocolate“, April 4; “Next on the class-action agenda: liquor?“, March 22, 2000; & see Sept. 10, 2001. For burns from hot beverages that were under the control of the complainant, see also personal responsibility page.