Are french fries the new Marlboros?

The law, lawyers, and the court.
Aug. 14 2003 10:44 AM

My Big Fattening Greek Salad

Are french fries the new Marlboros?

If the various lawsuits against "Big Food"—the teens suing McDonald's because they're obese or the guy who sued Kraft over too-yummy Oreos chock-full of trans fat—look familiar, they should. The suits have been organized, plotted, and launched by some of the same advocates who brought you those big tobacco suits in the 1980s and '90s. While none of these cases has yet found its way before a jury (the McDonald's complaint was dismissed in January with leave to file again), Big Food is scared. Kraft is downsizing its portions, McDonald's is said to be testing a Happy Meal with fresh fruit instead of fries, and Frito-Lay is cutting the evil trans fats from their Doritos.

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All this despite the fact that most Americans think the "fat suits" are silly. Then again, we thought the tobacco suits were silly once. Two of the main architects of the suits against unhealthy foods are veterans of the tobacco wars: Richard A. Daynard is a professor at Northeastern University School of Law and chairman of the Tobacco Products Liability Project. John F. Banzhaf III is a law professor at George Washington University and executive director of Action on Smoking and Health, or ASH. Both concede that the tobacco companies differ in crucial ways from Big Food. For one thing, people must eat to live, whereas no one needs to smoke. For another, there was compelling evidence that the tobacco companies knowingly torqued up the addictive content in their product and systematically lied about the dangers, whereas there is little evidence that Big Food did the same. (Of course, proponents of the fat suits contend that we won't know until the discovery phase of these trials what fast food companies really knew about their product or did to make it more dangerous.) Perhaps most vitally, most food companies maintain that, if used in tandem with exercise and a balanced diet, their (junk) foods are actually good for you.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

Opponents of the Big Food suits point out that since obesity clusters with other unhealthy behaviors—including lack of exercise and sedentary lifestyles—it's impossible to prove causation for liability purposes. And proving causation is doubly hard where, unlike smokers, who tend to show brand loyalty, junk-food addicts often eat at any number of unhealthy places—which is why the first (failed) McDonald's plaintiff, Caesar Barber, had to name Burger King, KFC, and Wendy's as defendants as well.

The inability to show causation or even ill will on the part of the food companies doesn't daunt the plaintiffs' lawyers, who contend that they will turn the tide of public opinion just as they did in the tobacco cases, which saw the tobacco companies settling with the various states for more than $240 billion. More profoundly, they argue, Ronald McDonald and friends can be prosecuted under simple product liability and consumer protection theories merely for failing to warn consumers that their products are dangerous. There need be no conspiracy, no backroom deals to spray yet more fat on the fries. It may be enough that the food is not healthy and carries no warnings. (Evidently in France Le McDonald's now carries signs suggesting that one indulge only once a week.)

Oh, but there are the wackier legal theories: Some anti-Big-Foodists contend not only that fast food is indeed addictive, like cigarettes, but that their purveyors similarly manipulate the ingredients to make them more so. Dr. Neal Barnard, a respected nutritionist, has recently argued that cheese contains a protein that breaks down into morphinelike compounds ("Gimme 30 cc's of gouda, stat") and other opiates that can create addictions. And Daynard and others argue that a steady diet of junk food leads one to crave more and larger portions just to feel sated.

In 2001, the surgeon general produced a report calling obesity an epidemic, claiming that it caused $117 billion in health-care costs and lost wages and killed 300,000 people a year. Banzhaf says that if there are demonstrable societal costs to obesity, then Big Food must pay: "A fast-food company like McDonald's may not be responsible for the entire obesity epidemic," he told Time magazine this week, "but let's say they're 5% responsible. Five percent of $117 billion is still an enormous amount of money." And believe it or not, the settlement in the Big Tobacco cases may have opened the door for precisely this sort of logic.

Ironically, it may well be that Big Alcohol escaped the fury of these reformers precisely because it's been willing to concede that its product was dangerous. Alcohol makers have successfully disseminated the message that their products, while fun in moderation, can be dangerously abused. Thus far, Big Food has not even been willing to concede this point in private. Then there's the fact that alcohol consumption is declining while obesity is rising alarmingly. Finally, it's much harder to persuade a jury that drinkers weren't warned of the dangers of alcohol.

Even if these lawyers can't prove Big Food is addictive or that Burger King—as opposed to Taco Bell—is responsible, these lawsuits may ultimately persuade jurors merely because of the effect of junk food on—surprise!—the children. By recently refocusing these cases on the effect on kids, lawyers can fudge the addiction issue. They'll argue that Big Food poured billions of dollars into commercials targeting children and that they knew in advance the ill effect their product would have on those impressionable minds.

There is something creepily paternalistic in the arguments put forth by the food nannies. They tend to say that while they are smart enough to read labels or look up fat contents on the Wendy's Web site, the poor, disadvantaged single mommies are not that sophisticated. One would hope that even the poorest single mom knows that eating McNuggets every day is unhealthy. And—since obesity doesn't happen in a day—one would hope that even the most unsophisticated parent would cut back on the KFC if her child started to split her Wranglers.

But there is something equally creepy in the efforts to stave off the Big Food suits either with ridicule or with legislative action—including the "Personal Responsibility in Food Consumption Act" now in markup, which would limit liability for food producers from obesity lawsuits.Even frivolous lawsuits deserve their day in court. That's why we have judges: to throw them out.

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