Dismissal of McDonald’s Obesity Law Suit
Was Expected
Four Wins, One Loss, and Several Legal
Theories Yet to Go
The dismissal of a law suit charging McDonald’s with contributing to
the obesity of minors in New York City was expected and will not deter
the filing of additional law suits, says public interest law professor
John Banzhaf, who served as an informal advisor on the suit.
Indeed, the judge’s original opinion spelled out at least two
winnable legal theories under which such law suits could be brought
and, since they were not included in the law suit which was just
dismissed, they remain for use in subsequent legal actions, says
Banzhaf.
These included arguments that McDonald’s failed to advise customers of
risks which were not common knowledge - such as the dangers of eating a
“McFrankenstein” chicken mcnugget - and the failure to warn that eating
fattening foods can cause addictive-like effects similar to nicotine.
Banzhaf also noted that four fat law suits have already been
successful. Collectively, they won over $15 million, provided for
additional disclosures, helped kick sugary soft drink and other
fattening foods out of New York City school and trans fat our of Oreo
cookies, and helped generate public support for more such suits.
Banzhaf also noted many other recent developments suggesting that these
law suits already are - and will remain - a potent weapon in the war
against obesity.
Fat Law Suits Boost Insurance Premiums - Insurers Losing Appetite for
Junk Food
Restaurants - especially fast food chains - are facing increases in
insurance premiums because of fear of law suits filed by customers who
become obese and suffer obesity-related health problems. This, as
well as the fear of the law suits themselves, the pre-trial discovery
of documents in the law suits, and the publicity and public concern
they are already generating, could continue to spur the major chains to
continue to make beneficial changes to reduce their potential liability.
Public liability insurance, which insures companies against claims from
the general public, has already risen by as much as 35% over the past
year, and many are predicting dramatic increases for the food
industry - traditionally regarded as low risks by insurance companies.
Zurich London, which insures restaurants, says if underwriters fear
there may be a rise in claims, they will increase premiums
further. They may also seek to limit their liability for certain
kinds of claims - e.g., fat suits - by applying exclusions to withdraw
cover for known risks. John Inwood, head of the public liability
section, said: "We are urging the food and drink sector to revisit
their risk management policies, as insurers will be looking more
closely than ever before at what the food and drink sector is doing to
demonstrate that they are being socially responsible."
The Association of British Insurers said it will soon publish a report
recommending ways that insurance liability premiums can be linked to
good health and safety standards within the catering/food
industry.
One of the major reasons for this new trend, says the London Daily
Telegraph [9/1], is the growing movement to use legal action as a
weapon against obesity, just as litigation was used so effectively
against smoking. For example, the Telegraph notes that:
"following a number of high profile cases, insurers fear the sector
will face more claims. In June, class-action lawyer John Banzhaf wrote
to fast-food restaurants, including McDonald's, Burger King, Kentucky
Fried Chicken and Pizza Hut, telling them to warn customers scientific
studies show fast food can be addictive or they may face litigation."
New Survey Shows Most American Blame Fast Food Companies For Obesity
A new ACNielson survey found that 60% of Americans now say that fast
food restaurants are a cause of the current epidemic of obesity; up
from 41% in another survey only several months ago.
Although survey respondents were more likely to fault parents for a
child's obesity than fast food restaurants [86% vs. 60%], that's
largely irrelevant from a legal point of view, says public interest law
professor John Banzhaf of George Washington University Law School.
"Since the law provides that children can't sue their parents for
permitting or even for encouraging them to overeat, and a parent's
negligence does not bar a child's law suit against a third party like a
restaurant which is also a cause of the obesity, children remain free
to sue to sue fast food outlets even if the jury finds after hearing
all the evidence that the parent's responsibility is greater than that
of the defendant third party."
For example, if McDonald's gave the parents of a small child an action
figure or other toy, and the parents in turn negligently permitted an
infant to play with it, McDonald's would clearly be liable if the child
choked on a small part and suffered brain damage, especially if the
company didn't provide a clear warning, says Banzhaf. That's why
McDonald's is so careful to provide a clear and very conspicuous
warning when giving out such toys, even though the danger of an infant
choking on a small part is at least as well known as the dangers of
eating fattening fast foods.
But, unlike with the toys - or literally hundreds of other products
like step ladders and electric hair dryers which have risks which are
at least as obvious - fast food restaurants in the U.S. do not provide
any warnings about fattening foods and/or eating out too frequently at
fast food restaurants. Notable, McDonald's in France does provide
just such a warning [http://banzhaf.net/mcad.html].
This McDonald's ad shows, says Banzhaf , that a major fast food company
recognizes that not all of its patrons know about or remember the
dangers of eating fast foods too frequently, and that it is appropriate
if not necessary for fast food companies to provide them with this
information. "The fact that a sister company in France does
provide such warnings should be very effective in persuading an
American jury that McDonald's should do the same in the U.S.," says
Banzhaf.
Another food company - PepsiCo - has also begun telling people that it
is not a good idea to eat their snack [junk?] foods too frequently, and
they plan to provide similar appropriate informational messages on all
of their snack foods in the future.
A defendant need not be the sole cause of a harm to be held liable,
says Banzhaf, citing multi-car automobile accidents in which each
driver can be held responsible for the proportion of the injury which
he caused, even if another driver. This is true, he says, even if
the injured plaintiff was even more at fault than the other driver, and
this is especially true if the plaintiff is a child.
"Children injured in rollover accidents involving Ford Explorer
vehicles and Firestone tires are certainly entitled to recover even if
Daddy was driving too fast when the rollover was triggered, and even
though he should have known that four-wheel drive SUVs are far more
prone to tipping over. Similarly, children in such cases can also
sue even though Mommy should have known that under-inflated tires can
be dangerous, and negligently failed to insure that the tires were
inflated to the recommended pressure," notes Banzhaf.
Jurors Increasingly Ready to Vote For Plaintiffs in Obesity Law Suits.
In another recent survey, prospective jurors said that they were almost
as likely to vote for a fat plaintiff in a law suit against a fast food
company as for a smoker in a law suit against a tobacco company.
This is astonishing and very encouraging, says Banzhaf, because more
than 30-years of litigation, literally tons of widely-reported
incriminating documents, and the propensity of modern juries to find
for tobacco plaintiffs in often astronomical amounts, should make
jurors far more disposed to vote against cigarette manufacturers than
against fast food companies. When you add to these factors that
juries are less likely to hold young children liable for their own
actions than the adult plaintiffs in the tobacco law suits, there
is every reason to believe that fat law suits - four of which have
already been won - will continue to prove effective.
Also encouraging, says Banzhaf, is that more than 75% of those surveyed
said that they believed that the sale of unhealthy foods like sugary
soft drinks should be completely banned in schools. "This should
help us persuade school board members that they have a moral as well as
a legal obligation not to continue to renew so-called 'pouring rights'
or 'Cokes For Kickbacks' contracts under which fattening soft drinks
are sold in schools, and the schools get a commission which some have
likened to a bribe or kickback.
These arguments were recently successful in dissuading the Seattle
School Board from automatically renewing a five-year fixed-term
contract with Coke to sell its products in schools. Under the
substantially modified contract which was finally adopted by the
narrowest of margins, the vending machines must be turned off during
the schools day in middle schools and during the lunch periods in high
schools, nutritious beverages must be offered in each machine, and the
contract can be terminated at any time.
PROFESSOR JOHN F. BANZHAF III
Professor of Public Interest Law
George Washington University Law School
2000 H Street, NW, Washington, DC 200006, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net http://banzhaf.net/obesitylinks