Fat City for Trial Lawyers

August 28, 2002 • Commentary

The race for the next litigation jackpot has officially begun — driven by trial lawyers exploiting billions of dollars in resources freshly extorted from hapless smokers. Caesar Barber, a 272‐​pounder, has sued the major fast‐​food chains because he is obese. “They said, ‘100% beef,’ ” Barber whined. “I thought that meant it was good for you. Those people in the advertisements don’t really tell you what’s in the food. It’s all fat, fat and more fat.”

Barber’s case is just the beginning. Pretty soon, the states will be suing to recover obesity‐​related Medicaid expenditures — more claims based on bogus legal theories contrived by clever private attorneys working as subcontractors to the state for a percentage of the loot. The entire scheme will be eagerly and greedily embraced by pals of the trial lawyers in state government. Contingency fee contracts will be awarded, mostly without competitive bidding, to law firms who bankroll state political campaigns.

Paranoia? Not at all. The Physicians Committee for Responsible Medicine warns that meat consumption is responsible for $61 billion each year in U.S. medical costs. “It’s time we [held] the meat producers and fast‐​food outlets legally accountable. Without their powerful influence, America would have a healthier diet and a healthier national treasury.” This fall, Northeastern University law professor Richard Daynard is holding a strategy session for nearly 100 lawyers interested in suing “Big Food.” There’s not much question what Daynard will be promoting: another shakedown without any concern for personal accountability, sanctioned by a nanny state with an insatiable appetite for social engineering.

If a corpulent plaintiff can prove that he was defrauded, that he relied on deceptive advertising despite an avalanche of contrary nutritional information, and that fatty foods caused his weight‐​related problems, then he might have a chance in court. But time‐​honored principles of tort law suggest that these lawsuits are frivolous, shamelessly designed to blackmail deep‐​pocketed companies. For starters, there are non‐​diet factors — heredity and lack of exercise, among others — inextricably linked to obesity. And further, there’s the raging debate over which foods are harmful.

When I was a kid, the nutritional gurus were pushing lots of steak and eggs. That regimen was overturned by supposedly wiser authorities, who substituted potatoes and pasta. Now we’re told that high doses of carbohydrates in today’s government‐​recommended diets may be the cause of recent waistline distention across America. So whom to sue: Dr. Atkins or the Pritikin Center? Kansas beef cattlemen or Idaho potato growers? Burger King or the Thai Rice Restaurant? Naturally, the lawyers have a ready response: Sue ‘em all.

That’s fine, for those who have little respect for the rule of law. Otherwise, here’s the governing principle: If a consumer elects to gorge on foods known to be high‐​calorie, then he is accountable for the consequences. He cannot hold food companies responsible, least of all on a retroactive basis. By condoning these ridiculous lawsuits, we will send our children messages far more destructive than Big Macs. First, it’s okay to change the rules after the game has begun. Second, you can engage in risky behavior, then force someone else to pay the bills.

If fatty foods are so injurious, let’s make sales to kids illegal. Require proof‐​of‐​age at retail stores. Prosecute retailers who break the law. Prohibit vending machine sales where underage consumers congregate — like schools and arcades. For good reasons, those proposals are unlikely to attract wide support. Nor are proposals to restrict advertising. After all, the First Amendment protects Klan speech, flag burning, and gangsta rap, which is targeted directly at teenagers. Surely, if Tiger Woods shows up in a fried chicken ad, the boot of government need not descend on Colonel Sanders’ neck.

Five years ago I predicted, without much risk of being wrong, that tobacco lawyers would soon be attacking other products deemed by our moral overseers to be bad for us. There would be no shortage of candidates, but the immediate target would probably be the food industry -sugar, dairy products, red meat and French fries — because obesity allegedly causes 300,000 deaths each year. The anti‐​tobacco crowd laughed off the slippery slope argument, but now we know the risk is real and imminent. Yesterday it was tobacco, today it’s fatty foods, tomorrow it could be skis, motorcycles, cars, you name it. “Our choices may be foolish or self‐​destructive,” said George McGovern, “but we cannot micro‐​manage each other’s lives.” When we no longer hold people responsible for their choices, civility and common sense will be diminished.

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