JOHN F. BANZHAF III Banzhaf@main.nlc.gwu.edu
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Testimony of Law Professor
JOHN F. BANZHAF III
in OPPOSITION to H.R. 339, the misnamed
“Personal Responsibility in Food Consumption Act”
before the House Judiciary Committee,
Subcom. on Commercial and Administrative Law,
Thursday, June 19, 2004 at 10:00 AM
Rayburn HOB, Room 2141
I strongly oppose this virtually-unprecedented falsely-promoted industry-sponsored bailout bill for many reasons:
1. It appears to be based upon the faulty premise that the sudden dramatic increase in obesity and in obesity-related diseases is caused primarily by a sharp decline in personal responsibility, and that the fast food industry - with its misleading advertising, failure to clearly and conspicuously disclose nutritional information (as all other foods do) and/or provide any warnings of the type common to many other products which present risks which are less serious but even better known - is such an insignificant cause of obesity in all cases (including regarding children) that it deserves absolute immunity. Neither proposition can be seriously advanced, much less proven.
2. If, as the industry repeatedly claims, these fat law suits are truly frivolous, the industry needs no Congressional protection from law suits which are “of no consequence” and therefore will be thrown out by trial judges and, if need be, appellate judges. But if they are not frivolous and instead raise serious issues - as suggested by McDonald’s willingness to pay over $12 million to settle a fat law suit it once termed frivolous, and by the highly successful tobacco litigation - then these important issues should first be decided by the courts.
3. This bill prematurely purports to pre-determine that in no conceivable situation should food companies have any liability even if juries and judges (including appellate ones) should find that they should applying existing statutory or common law. It also departs from the 200-year old tradition of letting courts first decide new cases as they arise and then stepping in to “correct” the process only if the results prove to be clearly contrary to the public interest. It is so over-broad that it provides immunity even where most would think liability would be appropriate.
4. Numerous articles and reports show that the threat of fat law suits has already forced many food companies to begin making significant changes likely to reduce obesity such as healthier menu alternatives, better ingredient disclosure, appropriate warnings, etc. During this time, Congress has done nothing of any consequence to address this ballooning problem. Congress should have the decency and common sense not to interfere with a process which is working until it is prepared to adopt comprehensive legislation to truly address this problem. If it ain’t broke, don’t fix it certainly applies here where no one can point to one verdict or judicial opinion which significantly harms the industry, much less one most people would agree is clearly contrary to the public interest.
5. The bill unreasonably and unnecessarily interferes with the rights of states to have their courts decide these issues, and is so broad that seems to affect matters which have no relationship to “interstate commerce.”
Fortunately, this bill is so ill considered that it does not take into account some potential law suits of this type which the industry presumably would be opposed to, and therefore contains hidden loopholes.
In 2001 the U.S. Surgeon General
issued a report showing that the
However, since I first proposed
that legal action could be a powerful weapon against the public health problem
of obesity, just as I had suggested - and then helped prove - that it could
be a powerful weapon against the public health problem of smoking, three
fat law suits have been won, two are poised to be won, and one is going to
court later this month. More importantly, numerous
articles and reports have noted that the threats of law suits have already
prompted many food companies to take steps likely to reduce obesity.[2]
Yet some Members, not content to
simply shirk Congress’ responsibility to do something meaningful and effective
about
This bill is based upon two faulty
assumptions. The FIRST is that the
problem is caused by a lack of personal responsibility. But
virtually everyone agrees that this epidemic rise in obesity and in obesity-related
diseases[5]
occurred largely within the past 15-20 years, and there is no evidence that
there has been a corresponding drop in personal and/or parental responsibility.[6]
The SECOND faulty assumption is
that, contrary to virtually every serious study, the fast food industry -
with its misleading advertising,[7]
failure to clearly and conspicuously disclose nutritional information (as
all other foods do)[8]
and/or to provide any warnings of the type common to many other products
which present risks which are less serious but even better known[9]
- is such an insignificant cause of obesity in all cases (including those
regarding children)[10]
that it deserves unprecedented absolute immunity from all liability.[11]
Neither proposition can be seriously
advanced, much less proven, and the public seemingly is rejecting them and
is prepared to hold the industry liable in law suits.[12]
The industry and its spokesmen claim
that all such law suits are frivolous, but industries do not need protection
against law suits which are truly frivolous,[13]
only those law suits which judges, juries, and appellate courts are likely
to take seriously. In this regard note that the smoker
law suits, the non-smoker law suits, and the law suits by the states against
the tobacco industry, all were initially called frivolous.[14] But they have all proven their worth, and helped to make
a significant dent in the public health problem of smoking.[15]
In this bill Congress assumes that
it can pre-determine that in no set of facts involving food litigation should
any company be held liable, even for its fair share of the resulting costs.[16] This is presumptuous as well as preposterous, since the
bill covers many situations in which most would agree that there should be
liability. It also departs from the 200-year old tradition
of letting courts first decide new cases as they arise, and then stepping
in to “correct” the process only if the results prove to be clearly contrary
to the public interest.
This is especially egregious here
because the bill unreasonably and unnecessarily interferes with the rights
of states to have their courts decide these issues, at least initially, and
is so broad that it seems to affect matters having no relationship to “interstate
commerce” and therefore may be, as the U.S. Supreme Court has recently reminded
us, beyond Congress’ ability to legislate.
For all of these and other reasons,
it is respectfully suggested that it is premature - if not presumptuous and
preposterous - for Congress at this time to conclude that the one weapon
against the war on obesity which appears to be having an impact should be
eliminated; that it can decide without waiting for state court trial and
appellate judges to consider the myriad of factual situations, legal arguments,
and still-undiscovered evidence which may be presented in these trials that
no such plaintiffs should even have their day in court; and that an industry
should be given unprecedented immunity from all liability without any showing
of harm or even serious danger.
Instead, Congress should consider comprehensive legislation aimed at America’s epidemic of obesity [see next page], wait to see what the effect of the legislative remedies and of fat litigation may be, and then and only then even consider some form of limited immunity. Fortunately, this bill is so ill-considered that it contains several unintended loopholes.
Both the author and those involved
in the movement to use legal action as a weapon against obesity have frequently
stated that legislation is far preferable to litigation.
Legislation can accomplish more, be applied fairly across the board,
and affect many practices that litigation cannot reach. Here are only a few proposals which
Congress may wish to consider before it abdicates its own responsibility
to regulate, and simply grants the industry unnecessary blanket immunity:
A. Require that all fast food restaurants display information
about the calories and fat in their menu items at the point of purchase when
patrons are considering their choices while standing on line, not buried
on a web site or on a hard-to find pamphlet or back wall.
Several state bills to require this have been introduced, and Congressional
action would avoid confusion due to lack of uniformity.
B. Require that all fast food restaurants provide appropriate
warnings about the danger of eating fattening fast food too often. PepsiCo has promised to do this, and McDonald’s is already
doing it in France.
C. Require that all fast food restaurants provide more nutritious
alternative menu choices for people who find it inconvenient to eat elsewhere
and who want to avoid the many fattening foods which all too frequently are
their only choices.
D. Require that all food items intended for young children
- e.g., Mighty Kids Meals, Lunchables, etc.- provide information about fat
and calorie content not only in terms of adult nutritional requirements but
also in terms of the vastly lower requirements for young children so that
parents can knowledgeably exercise the parental responsibility they are urged
to.
Should the fast food restaurants do these things – either voluntarily or as a result of uniform legislation - it would appear that they would largely insulate themselves from potential liability. This is a far better approach than simply granting them unearned immunity.
[2] See generally, http://banzhaf.net/obesitylinks See also page 6 infra.
[3]
“The National Restaurant Association is leading the effort
to build support for this bill [H.R. 339] on Capitol Hill. See if your lawmaker
is a cosponsor of H.R. 339 and take action to encourage them to sign on if
they haven't already.” See:
http://www.restaurant.org/government/issues/lawsuits_food.cfm
[4]
Fast food companies are responsible for more than 65% of the rise in American
obesity, and for more than $50 billion of the annual health care costs obesity
imposes on taxpayers, according to a new study for the National Bureau of
Economic Statistics. As the New York Times reported:
“In analyzing the relationship of weight to incomes, food prices, restaurants, workforce participation and other variables, the economists concluded that the growth of fast food accounted for 68 percent of the rise in American obesity.” Belt-Loosening in the Work Force, New York Times [3/2/03].
[5] Although some have tried to argue that the huge increase in obesity was caused merely by a change in the definition of “obesity,” there has also been a corresponding very large increase in obesity-related diseases such as Type 2 Diabetes - a fact-based phenomena which obviously was not caused by a mere change in definitions.
[6] If there were some kind of precipitous decline in personal responsibility (or in parental responsibility) during the past 15-20 years, one would also expect to see it manifested in a huge increase in other risky personal behaviors such as the use of illicit drugs, the failure to use seat belts, boating and rafting accidents, accidental gun shot injuries , drunk driving accidents, etc. But this has not occurred. Thus one is asked to believe that this relatively-recent epidemic of obesity was caused by a dramatic decline in personal and/or parental responsibility for which there is no evidence, and which does not appear to manifest itself with regard to other risky personal choice behaviors.
[7]
See, e.g., Judge Sweet’s initial opinion in Pelman v. McDonald’s:
http://banzhaf.net/docs/sweet1
[8]
The fast food industry lobbied vigorously and successfully to be virtually
excluded from the statute which requires all foods sold in stores to provide
prospective consumers with nutritional information, including the amount
of calories, fat, and saturated fat. Thus, as Judge
Sweet himself pointed out, potential consumers may well be deceived into
believing that chicken dishes have less fat than beef entrees, and many customers
are totally unaware of the large amounts of fat which are increasingly being
found in dishes which purport to be “healthful.” [see
Ibid.]
As the business-oriented Wall Street Journal recently noted in “That Veggie Wrap You Just Chowed Down Is More Fattening Than a Ham Sandwich” [1/14/03]: “HERE'S A FAST-FOOD nutrition quiz. Which has the fewest calories: a McDonald's Quarter Pounder with Cheese, Panera's Smoked Ham and Swiss sandwich, or Baja Fresh's grilled chicken salad? Surprisingly, it's a Quarter Pounder. The answer is likely to shock diners who are flocking to trendy new eateries such as Fresh City, Baja Fresh Mexican Grill and Panera Bread, all of which promise fresh, nonfried and healthy- sounding fare. . . . the truth is that these and other wraps, salads and sandwiches being hyped as a healthy alternative to fast food are loaded with calories and fat. . . . While the restaurant chains don't make any specific claims about the healthfulness or calorie content of their menu items, they nonetheless give consumers the impression that they are offering healthier food. . . . But consumers are being fooled. . . . But making the healthy choice can be tough. Most restaurants don't display nutrition information inside the restaurant, and the menu offerings often are deceptive.. . . Nutritionists argue that calorie information should be available at the ordering counter.” [emphasis added]
[9]
Courts have held that step ladder manufacturers can be held liable not only
for failing to provide warnings about falling off the top step - a danger
even clearer and more clearly common knowledge than the danger of eating
too much fattening food - but even for failing to provide adequate warnings. Similarly, failure to warn about the danger of electrocution
from reaching into the back of the television set, or using an electric hair
dryer around ground pipes, or of infants eating lead-based paint, have all
been held to create potential liability.
Warnings, after all, are not designed only for the best and brightest, but also for those with less education; less wisdom, judgment or maturity; and those who may be momentarily forgetful.
[10]
It is impossible to argue that young children should be held fully responsible
for their own lack of judgment or immaturity. Even
the simplest contracts they enter into are void or voidable, and girls under
the age of consent (often 18) cannot validly consent to engage in sexual
intercourse because we conclusively presume that they cannot understand the
consequences of their acts. Yet it appears that most
girls of 17 understand the consequences of having sex far better than they
understand the consequences of eating out often at fast food restaurants.
For those who then argue that food companies
should escape all liability because children’s obesity is caused solely by
a lack of parental responsibility, the simple answer is that the law does
not blame children for the lack of care of their parents, so long as the
harm was reasonably foreseeable by the defendant. For
example, when McDonald’s gives out tiny action figures with its children’s
meals, it is very careful to warn in big letters of the choking danger present
if the toys are given to infants - even though that danger is clearly common
knowledge. McDonald’s knows that, if a child choked
on a part from the toy and suffered brain damage, McDonald’s would be held
liable for its fair share of the medical costs - despite the clear negligence
of the parents - provided that it could have foreseen that this would happen.
With regard to meals served to children, and even meals like Happy Meals and Mighty Kids Meals intended solely for children, McDonald’s provides no warnings whatsoever.
[11] Congress wisely denied just such immunity to the tobacco industry, even after several multi-million dollar verdicts. The only other instances of industry immunity - shielding gun makers from lawsuits for "harm caused by the criminal or unlawful misuse" of a firearm, limiting the liability of airlines if armed pilots accidentally shoot a crew member or passenger; and limiting the nuclear industry's liability in the event of a catastrophic accident - are all clearly distinguishable.
[12] One recent survey shows that almost half of the public
already blame fast food companies for contributing to the current epidemic
of obesity, and another says that jurors are almost as likely to vote against
defendants in fat suits as against defendants in tobacco suits. See: http://banzhaf.net/obesitymediareleases#Jurors_Support_Fat_Suits
[13]
“Frivolous” has been defined as “Unworthy of serious attention; trivial.” But these law suits and the threat of future suits are
being taken very seriously by many major business and general interest publications (including one new publication, Obesity Policy
Report, devoted primarily to this topic) http://www.obesitypolicy.com/ The law suits are also being taken very seriously by
industry and stock analysts. See generally http://banzhaf.net/obesitylinks
The industry itself has paid for full-page ads in national magazines attacking the suits, and has written Op-Ed pieces opposing them. But their very concern and attention to these legal actions clearly belies any suggestion that the industry regards them as merely frivolous.
[14]
Indeed, one of the panelists today, Victor Schwartz, once appeared on television
with the author and confidently predicted that no
smoker law suit against a cigarette maker would even get to trial, much less
produce a verdict for plaintiff.
Even the lawyers who represented smokers in
such suits were reluctant to represent NONsmokers in suits against
the tobacco industry, believing that such suits had little if any chance
of success. But one husband-and-wife team has already
won $300 million in the first round of a class action nonsmoker law suit,
and individual nonsmoking plaintiffs are beginning to win also.
Finally, even anti-tobacco lawyers were so sure
that state law suits against the industry could not possibly succeed that
most refused to take them on, and the few that did were called “crazy.” Today, of course, we call them multi-millionaires, since
these law suits - likewise termed “frivolous” in their day - have now resulted
in a settlement of over $240 BILLION dollars.
As one reporter, after talking to many legal experts of all sides of the issue put it: “All the legal experts I talked to agreed on one thing: After tobacco overturned years of legal precedent, you can't say any lawsuit is impossible.” Can We Sue Our Own Fat Asses Off?: http://salon.com/tech/feature/2002/05/24/fastfoodlaw/index.html
[15]
See, e.g., Where the Public Good Prevailed, The American Prospect [04/01].
Many articles and reports have suggested that more progress has been made regarding the problem of smoking than any other major public health problem: e.g, abuse of alcohol, illicit drug use, teenage pregnancies, etc.. Clearly this is due in large part to the effective use of a wide variety of different kinds of legal actions - exactly what is being planned now with regard to obesity.
[16] It should be noted that plaintiffs in fat suits - like plaintiffs in tobacco suits - do not necessarily contend that they bear no responsibility, and/or that the defendant is solely responsible and should pay all of the costs. Instead, plaintiffs in the fat suits - like plaintiffs in the tobacco suits - simply argue that the defendants’ failure to clearly and conspicuously provide necessary information, or to provide appropriate warnings, etc., was at least in some part a cause of the resulting medical problem, and that the defendant therefore should bear its fair share of the costs.