FAST FOOD ON TRIAL, National Public Radio [08/08/02] 

This is TALK OF THE NATION. I'm Neal Conan in Washington.  The former surgeon general, David Satcher, spoke about an epidemic of obesity before he left office. By his calculations, 61 percent of adults are overweight, and more and more kids are, too. It is a serious problem, but except for those of us genetically disposed to obesity, there's a simple solution: eat less, exercise more. Simple maybe, but much easier said than done.

Now some lawyers and activists want to try a different approach: to sue the fast-food industry and the companies that make snack foods and bottled soda. The same tactics that worked against big tobacco, they say, might just work against McDonald's, Burger King, KFC and the others. There are some interesting legal arguments involved, and we'll be talking about them, but two issues: Is this the best way to fight against obesity? And is Ronald McDonald really the moral equivalent of Joe Camel? Can people be sued for selling a perfectly legal product when their customers can choose a salad instead of a Big Mac or go to a vegetarian restaurant if they want, or just eat at home? Is Colonel Sanders responsible for the extra weight you're carrying around?

Our telephone number is (800) 989-8255. That's (800) 989-TALK. Our e-mail address is  And joining us now is John Banzhaf. He's professor of public interest law at George Washington University. He's with us here in Studio 3A.  And welcome to TALK OF THE NATION.

Professor JOHN BANZHAF (George Washington University): Thank you, sir.

CONAN: Also with us, John Doyle here in the studio. He's a co-founder of the Center for Consumer Freedom, a coalition of more than 30,000 restaurant and tavern operators.  And thanks for joining us.

Mr. JOHN DOYLE (Co-founder, Center for Consumer Freedom): Pleasure to be here.

CONAN: Professor Banzhaf, I understand you're considering suing the fast-food industry. What is the case against Ronald McDonald?

 Prof. BANZHAF: Well, Neal, we're not considering doing it. This is a growing movement. There are already four or five different suits. The first one actually grew out of a classroom project at my law school, and several students put together a lawsuit against McDonald's for failing to disclose that its french fries contain beef fat. Everybody said the suit was crazy when we filed it, but McDonald's didn't think so. They've agreed to make the disclosure. They paid $12.5 million to settle.

 There's another one down in Florida because there was a wrongful disclosure, much lower disclosure, of fat and calories in a so-called diet ice cream. That one is about to settle. There are three others--or two others which are still too early to tell.

 CONAN: Well, those are...

 Prof. BANZHAF: Now you asked the question at the beginning of the hour: Is this the best way to go? And my answer to you would be no. No. But the problem is, the remedies that you proposed--exercise, moderation in eating--and what some others propose--parental responsibility, individual responsibility, education--aren't working, 'cause over the past 15 or 20 years, as the surgeon general documented, we've had a sudden explosion of obesity. We would much prefer--I think my colleagues and I would much prefer appropriate legislation, but as in the tobacco area, where the legislatures did not act, we were forced to litigate, and we were able to use that weapon very successfully. So here we're using litigation, hoping, however, that the legislatures will legislate.

 CONAN: Well, the two lawsuits that you specifically mentioned seem pretty clear on their faces as cases of mislabeling or misidentification, right?

 Prof. BANZHAF: No. The McDonald's case, in fact, didn't involve mislabeling or misidentification, because nothing they said was false. We sued them, as Pizza Hut is now being sued by another attorney, for failing to disclose what lawyers call a material fact. The material fact is something which would be of interest to a purchaser. In that basic theory, a failure to disclose could apply potentially to a failure to make a clear and conspicuous disclosure of calorie or fat content, or under other theories, for example, failure to provide an adequate warning. There are many products today which have warnings, many about things which are, you know, pretty commonsensical: Don't stand on the top step of a ladder, don't put your hand on the back of a television set. And yet, failure to provide those warnings had given rise to lawsuits. So we've got lots of different legal theories.

 We're also now looking at going after schools and school boards and even school board members which enter into contracts with fast-food companies and soft-drink companies to peddle their stuff in the school, actually provide a bounty to the school for every fatburger or sugary soft drink which is sold.

 CONAN: John Doyle, the Center for Consumer Freedom--I guess we're casting you in the role of the defense attorney here--what's your response?

 Mr. DOYLE: Well, we have to start with the lawsuits. It's very important. Neal, John talked of four lawsuits. McDonald's and Pizza Hut--those two suits have to do with beef fat, and they were animal-rights suits. They had nothing, nil, to do with obesity. And John's implication that they had is misleading on the face. Now the...

 CONAN: Well, that may have been his overarching purpose, but if it's...

 Mr. DOYLE: Well, and it has been for the last six months, and it's important to get it on the record because they are not obesity cases. They have to deal with animal-rights issues and vegetarian issues. That leaves two more, the ice cream suit and the so-called Pirate's Booty, two products that were mislabeled out of over 320,000 products. Neither one of those, by the way, is a restaurant. Now what we have on this fifth case is where this attorney Hirsch is suing, with first client Barber, the McDonald's and the fast food, and Mr. Banzhaf has sought to attach himself to this case. There is no groundswell of a legal movement to sue restaurants. There is a groundswell to make it look like there's a groundswell, and that's all we're dealing with here.

 CONAN: Well...

 Prof. BANZHAF: Well, Neal, it'll be very interesting, if there's no groundswell, to find out why it is that the restaurant association has set up and is funding the Consumer Freedom organization, why they're paying for attack ads, why they are settling suits and why they are also, indeed, at this very moment, running some of the kind of ads we'd like to see them run. They're running them in France, they're running them in a couple of cities here, warning people about the dangers of overeating, warning people about eating out too often at fast food--now apparently, they take them seriously.

 CONAN: Well, Professor Banzhaf, if you would describe for us, I mean, the set of tactics that worked against the tobacco companies. These were involving lawsuits similar to the ones that you're describing now, and eventually you got the state attorneys general to go along in these suits, and that made a tremendous difference eventually. And the settlement that came down was to provide money to the states to, you know, make up for the costs that they had for people from smoking, and to also provide for education against smoking.

 Prof. BANZHAF: Indeed. And every time we brought one of these suits, people said they were ridiculous, frivolous, they wouldn't go anywhere. When I first proposed that smokers would sue, two of the leading legal experts in the country sat across on a television program from me and said we'd never get one of those cases to a jury. When we got it to a jury, they said, 'Well, you'd never get a verdict.' We got a verdict. They said, 'It'll never stand on appeal.' When it stood on appeal, they said we'd never get punitive damages. We got it. When we proposed non-smoker lawsuits under different legal theories, they laughed again. We've won $310 million so far and still going on that one.

 Then when we proposed that the states would sue for the cost of health care for lung cancer, heart attack and so on, people thought the lawyers bringing those suits were crazy. They called them crazy. Today we call them something else. We call them multimillionaires 'cause, as you know, they won over $250 billion.

 CONAN: Well...

 Prof. BANZHAF: So the fact that some people think these suits aren't going anywhere--deja vu all over again.

 CONAN: And given that, John Doyle...

 Mr. DOYLE: That...

 CONAN: ...have to take it seriously.

 Mr. DOYLE: Well, everyone would take it seriously when we're dealing with trial lawyers. And I think Mr. Banzhaf couldn't have been more honest. The millionaire comment is what this is all about. This is a money grab. But there's an important distinction. Food is not tobacco. It is neither harmful nor addictive, and that is going to be a big hurdle to Mr. Banzhaf's case, although he's not--right now what he's talking about is a PR campaign, is to have these comments on NPR and across the nation to start to frighten people about food consumption.

 Take the Barber case in New York. This fellow claims to have eaten fast food four or five times a week. Well, that leaves, at the very minimum, 16 other meals. Where were those meals consumed? At home? Would we be suing him for feeding himself? The concept of personal responsibility has to be part of this debate, cannot be left aside. And when we are debating what people can put in their mouths and whether or not they're responsible for feeding their own children, we've come to a very interesting time in our society. We need to really ask ourselves: Is this the kind of debate we want to have?

 CONAN: Our tele...

 Prof. BANZHAF: And I would agree, by the way, that personal responsibility plays a large role in this. And nobody would doubt that the smokers should have been primarily responsible for their lung cancers, and the people who are obese and get heart attacks should bear primary responsibility. But as we successfully argued with tobacco and I think we'll be able to successfully argue here, it's not a sole 100 percent responsibility, that those who promote the product, those who do not provide complete disclosure, those who do not provide adequate warnings should bear at least some of the responsibility.

 And although food is not technically addictive in the medical sense that nicotine is, that wasn't the heart of all of our cases. Many smokers are not addicted. Many smokers, of course, who were addicted managed to quit. And although food is technically not addictive, there is growing evidence that people who are made fat as kids, for example, by being lured in by a Big Mac and so on may become what they call...

 CONAN: Or...

 Prof. BANZHAF: ...biologically predisposed to be fat as adults. So all those...

 CONAN: So should they sue McDonald's or their mothers?

 Prof. BANZHAF: No, they're going to be suing McDonald's rather than their mothers. Who took them there?

 Mr. DOYLE: Two-thirds of the meals...

 Prof. BANZHAF: Who took them there?

 Mr. DOYLE: John...

 Prof. BANZHAF: But do the mothers get the information? When those mothers look up and look at that board and are deciding between meal number one and meal number five, they do not get adequate information. Let me give you a very positive example.

 Mr. DOYLE: The information is in every restaurant.

 CONAN: Wait, wait, wait, wait. One at a time, please.

 Prof. BANZHAF: I'll give you a very simple example.

 CONAN: Let him finish, then go back to you.

 Prof. BANZHAF: McDonald's is now promoting a Mighty Kids Meal for kids who are a little bit older than a Happy Meal but still want to get that little toy. Well, one of those meals has more saturated fat than is healthy for me, as a large adult to have in two-thirds of my day. What is it compared for an eight-year-old kid who may weigh a third or a fourth of what I do? McDonald's isn't telling you. They're comparing it to an adult's.

 CONAN: Let's hear from John Doyle now.

 Mr. DOYLE: John, despite the fact you're trying to push a case, you have to deal with facts. Two-thirds of all meals are consumed at home. That fact alone puts a huge hole in your case. The other issue is information at McDonald's. You can go into any fast-food restaurant in this country and see the information either on the wall or on a pamphlet or, frankly, on the Internet. There is no lack of information. What we're dealing--and that kids' meal, by the way--no meal in any fast-food restaurant, on its face, is harmful at all. That meal, if consumed as part of a moderate, balanced diet, which would include healthful exercise, would be perfectly acceptable, as would candy bars and ice cream cones and soft drinks.

 CONAN: Our telephone number, (800) 989-8255, (800) 989-TALK. Our e-mail address, Our first caller is Catherine from Oakland, California.

 CATHERINE (Caller): Hi. Thanks. I'm a schoolteacher in a large inner-city school, and I just wanted to say that I think this is a really good idea, because the lunch program that we provide for our students--free lunch as well as the ones that kids pay for--essentially is the same types of food that a fast-food restaurant would provide: very high in fat and low in essential nutrients. And I've noticed that the majority of the children are obese, the majority of the children are African-American, and a lot of them are now coming down with the Type II diabetes and other types of health problems. And I think that if we don't start addressing this now, we're going to have a very serious problem in the near future.

 CONAN: Couldn't you address that to the school board?

 CATHERINE: Me, myself and I?

 CONAN: Yeah.

 CATHERINE: I doubt it. These things are very large and the free lunch programs are provided federal--I'm sorry, they're controlled by the federal government. And as far as I can tell, there doesn't seem to be any individual control. In fact, when I did complain about them giving french fries to disabled children on a daily basis, they stopped giving the children french fries and didn't give them anything to replace...

 Prof. BANZHAF: Neal, let me give you one of the problems here, is that some of the fast-food companies and the soft-drink companies are entering into contracts with school boards and actually...

 CONAN: Yes.

 Prof. BANZHAF: ...serving their stuff in the schools, paying a bounty to the school. Now in report after report, the school boards and the representatives are saying, 'Well, yes, we recognize it's not good for the kids. It might be bad. But we need the money.' Well, we have a name for people who do things they think is wrong for money. It's called prostitution. And that's why...

 Mr. DOYLE: And a...

 Prof. BANZHAF: ...we're prepared to sue the schools and the school boards for entering into contracts whereby they get paid for every fatburger and sugary soft drink they sell to kids.

 CONAN: John.

 Mr. DOYLE: Patently false on the face of it. There has been no quote from any school administrator saying, 'We know it's bad, but we need the money.' These foods we're talking about, by the way, were featured on the cover story of The New York Times Magazine on July 7th as suggesting maybe the theory that fat is the culprit is completely and 100 percent wrong. Now would John, then, after we learn that the science has been wrong and that fat is an important part of any diet, turn around and sue the fat-free product makers? This is about money. This is about having picked clean tobacco and now going after the next big target. And John's decided to make a case about food.

 Prof. BANZHAF: John, I certainly hope that they'll adopt your theory, they'll bring you into court as an expert, and if their major defense is 'It's healthy to serve kids lots of fatburgers and empty calories and sugary cola'...

 Mr. DOYLE: John, that's not what I said.

 Prof. BANZHAF: ...we will win hands down.

 CONAN: Whoop, whoop! Both of you, one at a time. We don't yell here. Please.

 Let's go to an e-mail we got from Ryan in Boulder, Colorado. Catherine, by the way, thank you very much for the phone call. We appreciate it.

 CATHERINE: Thanks, Ray.

 CONAN: 'You know, suing fast-food'--well, let's--this is--we'll raise this e-mail here and we'll address it after we come back from the break. 'You know, suing fast-food companies for serving unhealthy food sounds like a great idea. Our next priority should be finding a way to extinguish the sun because of all of those harmful rays it bombards people that just might sunbathe. People, please, take some responsibility for yourself.' That from Ryan in Boulder, Colorado.

 We're talking about lawsuits against the fast-food industry, and after the break we'll be taking more of your calls. (800) 989-TALK. Are fast-food companies responsible for our health habits? You can send us e-mail. The address is And when we come back from the break, we'll also be discussing the trend to supersize.

 I'm Neal Conan. This is TALK OF THE NATION from NPR News.

 (Soundbite of music)

 CONAN: This is TALK OF THE NATION. I'm Neal Conan in Washington.

 We're talking about fighting fat by suing the fast-food industry. Our guests are John Banzhaf, a professor of public interest law at George Washington University, and John Doyle, co-founder of the Center for Consumer Freedom, a coalition of more than 30,000 restaurant and tavern operators. Of course, you're invited to join the discussion, (800) 989-8255. That's (800) 989-TALK. Our e-mail address is

 And, John Doyle, before the break, we heard an e-mail from one listener who suggested that personal responsibility was a key element in this.

 Mr. DOYLE: Neal, it's a valid point. Trial attorneys have changed the face of America. They've given us the lukewarm coffee, they've taken away diving boards from our pools, shortened the legs on swing sets. You can't even smoke a cigar in a cigar bar in California, if any still exist. It is time now for the nation, the public, to decide whether or not we should be responsible for what we put in our own mouths and what we feed our children. And I think it's time that we fight back against trial attorneys who are trying to make a buck off this scare campaign.

 Yes, children are getting overweight. Yes, it's a complex issue that involves as much energy output and exercise as it does food. But to oversimplify it and label some restaurants as the villains, the pariahs, the tobacco industry, if you will, of food is misguided, misleading and wrong, and it needs to be fought back.

 Prof. BANZHAF: And I would answer that, once again, we argue and accept the idea that the smoker and the overweight person should bear most of the responsibility, but as with tobacco, we're going to be arguing that the fast-food companies, and in other cases junk-food companies, should bear at least some of the responsibility. And individual responsibility is a good idea. The problem is, we don't have it today. John, you're not--I'm sorry. Neal, you're not obese, yet you pay far more in your federal taxes because of obese people and their costs under health care, under Medicare, Medicaid and so on. You pay far more for your health insurance, 'cause every health insurance company I know of charges obese people the same as non-obese.

 So we'd like to see that remedy. We'd like to see some of that huge cost removed from the backs of the people who are not obese. And again, I would say a much better way is through legislation. I'd like to see different rates for health insurance for people who are obese and people who are not obese. I'd like to see a tax placed upon the foods which have a great propensity to fatten people and use a small portion of that money to fund healthy eating messages to compete against the $30 billion that the food industry spends. But again, if the legislatures won't legislate, then the trial lawyers will litigate.

 CONAN: Let me ask you a question. When the tobacco suits were started--you talked about that earlier, Professor Banzhaf--you were quoted as saying that--you know, a lot of people brought up the 'Where does this stop?' the ad absurdum argument of maybe suing the sun for stopping those harmful rays. And you were quoted as saying, basically, "This is not a slippery slope," that 'Nothing is like tobacco and it's absurd to make this argument that if we win in the tobacco case that we're going to be suing everybody for everything, and that nobody'--you know, now you're suing fast food.

 Prof. BANZHAF: Well, part of the answer is that when a new legal principle is established, one can't always tell how far it will go. And you can look back at many of the lawsuits in our nation's history. Brown v. Board of Education--who would have dreamed where it would be today? The other is, we don't at this point have the same kind of lawsuits. We have different kinds of lawsuits. And part of the reason also is that at that point we didn't have a surgeon general's report who identified obesity as a public health problem rather than an individual health problem. We didn't recognize it as a disease, as the federal government now does. And we didn't know that it cost the public over $115 billion a year.

 CONAN: John Doyle.

 Mr. DOYLE: The question is a good one, Neal. It's not anymore 'What is left? What is he going to sue next?' There's nothing left. He's now suing for what we put in our mouths. Consider the typical fast-food restaurant. Every one of them offers a salad option, a parfait option, a healthful option, or even a cheeseburger or, heck, a triple cheeseburger on occasion is a healthful part of any diet. But if you take Mr. Banzhaf's argument to its logical conclusion, we must sue America's parents because two-thirds of the meals are eaten at home, but more specifically, how about a candy shop? How about an ice cream store? They don't offer the so-called healthful salad on the side.

 And Mr. Banzhaf and the trial attorneys of the world would take those ice cream stores away from us as a culture. This is for the money--not for the principle, for the money. That's what this is about. They've taken the diving boards, I'm telling you, they're going to take the candy stores, and we're going to be living in this Nerf Planet where those millionaires that John spoke of earlier are the ones calling the shots. Frankly, we've had enough.

 CONAN: Let's go back to the phones. And our next caller is Amy, who's with us from Grand Rapids, Michigan.

 AMY (Caller): Hi, Neal. My opinion is that you don't need to legislate common sense. I mean, I agree it's neither harmful nor addictive, food is. But everybody knows if you eat too much and you don't work out, you're going to get fat. I mean, I totally believe in personal responsibility. I'm a mother of three, and we sit down and talk about, 'Well, what healthy choice do we want with our lunch? What do we want with our dinner? Which fruit or vegetable are we going to choose?' I mean, it's a free country and, I mean, there's a lot of things out there that we don't choose to do. There's pornography, and my husband and I don't buy it. It's available to us, but we make those choices. So I think at some point--I mean, it's absolutely absurd, and we need to take personal responsibility for our choices.

 CONAN: Well...

 Prof. BANZHAF: Well, that's a good argument, but it isn't working. And let me give you a quick example. I was recently interviewed by an Austrian reporter, and she...

 CONAN: Well, excuse me, John.

 Prof. BANZHAF: OK. Go ahead.

 CONAN: It clearly works for her.

 Prof. BANZHAF: It works for her, and if everybody was like that, that would be wonderful. But at the moment, we have lots and lots of obese people. We have lots and lots of obese kids. They're costing us over $100 billion a year, much of which is being paid by people who are not obese. And again, very briefly, reporter was from Austria. She said she grew up in the land of Wienerschnitzels and schnitzel and all of those things. She was able to maintain her weight. She's been over here in this country only three months, and she's suddenly finding she's putting on weight. Now she didn't lose her personal responsibility. Her genes didn't change. It's not education.

 AMY: No, it's not only the fact...

 Prof. BANZHAF: What she says is that she's surrounded by fast-food restaurants, by fast-food advertising, by people in her office going out and eating there, and she is eating more.

 CONAN: Let's hear from...

 AMY: Right. I understand that. But, I mean, I don't think that it has anything to do with the fact other than, frankly, lack of willpower. Frankly...

 Prof. BANZHAF: Why did it start in the last 20 years only? People had the same willpower 20 or 30 or 40 years ago.

 CONAN: John, if--John Doyle.

 Mr. DOYLE: Yeah. Thank you, Neal. There is a very compelling and well-written article in the July 7th New York Times Magazine that would suggest that it was this focus on fat-free eating that is actually the cause of the so-called obesity epidemic. I need to get to a key point, too. There is an overweight problem in America. That's obvious on the face of it. But it has been blown out of proportion by trial attorneys and other nannies in the country. The $100 billion that Mr. Banzhaf is throwing around is not a direct relation to obesity costs. That number comes from all deaths related to heart attack, cancers and diabetes, of which obesity is a partial cause.

 Now I know that's sort of a detail, a fine point, but the fine points have to be made when this hyperbole is thrown around as often as it is. There is a problem, it needs to be addressed, but calling out the trial dogs to sue fast-food restaurants is the wrong approach.

 CONAN: Now...

 AMY: And I don't disagree that different insurance rates would be appropriate for--I mean, just like in life insurance, if my husband has high cholesterol, we pay more in life insurance. So I don't think that that's a terrible idea, but I really think that the onus has to be on the individual to make healthy choices and to provide healthy choices for their children, 'cause everybody knows, again--I mean, at least, everybody I know knows that if you eat too much, if you don't work out, if you make poor choices, you're going to get fat.

 CONAN: Amy, I assume your kids see the same ads on TV that other kids see and they want to go to these restaurants. What do you tell them?

 AMY: Well, and we go. I mean, there's no doubt that I take my kids to McDonald's. I take them to Wendy's. Wendy's is my daughter's favorite place to eat. But it's a treat. It might be once every other week, and it's a big deal if we get to go out. But, again, like the professional was saying--I don't remember his name; John, I think...

 CONAN: Well, they're both named John, but...

 AMY: Oh, that's what I thought. But I don't think it's bad to take them every other week. And let them get the chicken nuggets, Frosty and french fries because that's one meal out of 21 meals per week at the most.

 Prof. BANZHAF: Well, what do we do about the parents who take them in four and five times a week, the figure that says the average American eats six servings of french fries every week? That's astonishing. I don't think anybody in this room eats more than one a week, so there must be people scarfing down a dozen a week.

 CONAN: John Doyle.

 Mr. DOYLE: I eat more than one a week, and I take my kids to fast-food restaurants on occasion. And the parents who take their kids more often, that is a parental choice. What you're talking about is stepping in between a child and his parent. And I think you're just treading on some very dangerous territory when you're suggesting that, A, a parent can't feed himself, or B, the parent can't feed her children. And to bring the trial lawyers in to settle that case because some people abuse the system or some people are chronically overweight is a dangerous precedent and a debate that has to be had in America.

 CONAN: Yeah.

 Prof. BANZHAF: I'm not saying they shouldn't do it. I'm simply saying they should pay for it.

 AMY: Well, it's clearly a public health problem, no doubt about it. But, again, I don't think that litigation is the way to resolve it. I don't know what the resolution is. But, again, I don't think suing fast-food companies is going to change the face of the way parents are feeding their children.

 CONAN: Amy, thanks very much for the call.

 AMY: Thanks for having me, Neal.

 CONAN: We're talking about the marketing of fast food. Sometimes it's an appeal to the eye--those juicy close-ups of burgers get your mouth watering every once in a while--and sometimes it's an appeal to the ear.

 (Soundbite of fast-food ads)

 Unidentified Announcer #1: Brought to you with a smile by your friends at McDonald's.

 Unidentified Announcer #2: Cool Wraps(ph): chicken garden, chicken Caesar and spicy chicken. Cool Wraps from Chick Filet.

 Unidentified Announcer #3: Brought to you by Burger King, where you can collect Martian toys, one in every Big Kids' meal. At BK, you've got it.

 Unidentified Announcer #4: Checkers honey-grilled chicken sandwich, now just two for four bucks.

 Unidentified Announcer #5: You gotta eat.

 CONAN: Joining us now from New York is Mark Cotter, senior vice president of The Food Group, New York office. The Food Group advises the restaurant industry on new products and marketing strategies.


 Mr. MARK COTTER (The Food Group): How you doing, Neal?

 CONAN: Very well, thanks. We're talking about some of the issues, and one of them has to do with portions that are served, including the super sizing. When did this trend begin in the fast-food industry, and what's actually in it for the industry? It seems twice the food for just a little bit more money.

 Mr. COTTER: Well, it probably began in the mid- to late '80s when the consumer, I guess, was a bit more value-conscious about the selections that they made. And, you know, a decision was made that based on the profit levels of these certain ingredients, whether we're talking about a soft drink or an actual burger, for instance, that they can get more money for slightly more product, but the perception is that you're getting almost twice the product for the same price point. It's almost taking advantage of what, you know, retailers would consider an impulse buy where there's money left on the table that you're not achieving. And that could be by simply suggesting a next size up, you can get an increased profit margin by increasing the size of the portion but not necessarily increasing your product cost.

 So you take a product, for instance, that would normally sell for a dollar. They could get a dollar fifty by giving them a percentage more, but the overall cost of that product wouldn't be exactly doubled because the labor, for instance, involved in dispensing a beverage vs. putting together a burger would be the same.

 CONAN: Wow. So...

 Mr. COTTER: So, you know, it was a way of getting at those dollars that were left on the table, plus going after those that wanted just a little bit more.

 CONAN: Now some fast-food restaurants have tried healthier choices. They don't always work, though, like the McLean, I guess, was a famous disaster.

 Mr. COTTER: Right.

 CONAN: Is healthy fast food a losing idea?

 Mr. COTTER: I don't think it's a losing idea. I mean, the idea behind the McLean, I think it was ahead of its time. You know, back when the McLean came out, there was the, you know, discussions about healthier eating that really took place mainly in the more metropolitan areas. And when the McLean came out, it was going after those people that wanted a healthier alternative. But at the time, and it's probably in most cases now, when somebody makes a decision to go into a fast-food restaurant, you know, quite honestly, they're not thinking about healthy. They're thinking about what they're going to that fast-food restaurant for. You know, when you go into a McDonald's, you know what you want to get in a McDonald's, and you don't think healthy. There's not the perception that I can get healthier products. The McLean, at the time, was a stretch for the consumer that was consistently going to a McDonald's and that the brand adoption on the McLean just was not at the point where, you know, consumers would accept it.

 CONAN: But there are places now doing much better with things like salads.

 Mr. COTTER: Absolutely. And even, you know, adding seafood items that, you know, give the perception of healthier eating.

 Prof. BANZHAF: And that's one of the things we're fighting for...

 CONAN: And we're speaking with Mark Cotter, senior vice president of The Food Group. And you're listening to TALK OF THE NATION from NPR News.

 Mark, you work closely with the fast-food industry. Were your clients surprised by the possibility of lawsuits?

 Mr. COTTER: I would say not. We actually saw this coming. I guess shortly there--you know, when the tobacco industry had the ability to be--you know, when they were vulnerable, at that point we figured anybody can be vulnerable. And as the obesity numbers would go up year after year, we knew that there was a vulnerability. And, you know, we saw the opportunity to combat that, obviously, with healthier menu items and research and development against healthier alternatives, but, you know, our gut was that wasn't really the core of the problem and that it was more of options.

 You know, going back about--back in the mid-'70s when you had, say, the big three, you know, fast-food restaurants, those were your choices. And, you know, individual families would go out, say, at that point, once a week to a McDonald's, a Burger King, a Wendy's, a KFC, for instance. Now, within a certain geographic neighborhood, you'll find 10 to 15 different fast-food restaurants to choose from so that when the McDonald's, the Burger King would be the once-a-week option, now the fast-food restaurant becomes the three-times-a-week option because they're there. And right now, with people being time deprived, with two-family, you know, income households, that convenience food is where the trends are now. And, you know, it's into handheld products. And you see that on the consumer shelf, as well as you see that, you know, with the growth of quick-service restaurants.

 CONAN: Our next caller is Joe, who's with us from Minneapolis.

 JOE (Caller): Thank you.

 CONAN: Sure.

 JOE: I'm a degreed nutritionist and I also have an MBA in marketing. And one of your guests had said that fast food is neither addictive nor is it harmful, and he's actually wrong in that. They do many studies to find out what people crave, and it so happens that we crave fat and we crave salt. One of the better examples is McDonald's actually lowered the frying temperature of their french fries so that it would absorb more fat. And when you look at this and you do look at the cost that is borne on society, I really think that there is a case against the fast-food industry here.

 CONAN: Mark Cotter, is that accurate?

 Mr. COTTER: Yeah. As far as the scientific fact, yes, it is accurate. I mean, they've gone through many formulations of making things more appealing, from the simple aroma of fat and the scents that it gives off and how that can attract an individual to it. You know, the bakeries, for instance, would do things like throwing spices into the exhaust fans to get it into the fumes of the air to entice customers to come in, just like the ability to soak more fat into a french fry, or in some cases, you know, they used to inject beef flavoring into the fry to give off that special taste that would make, say, a McDonald's fry different from others. So there are ways of controlling it, but I think, you know, it really comes down to moderation and the volume that they provide and the volume that they sell to an individual that really is the concern because it really is about choice.

 JOE: May I say something here, Neal?

 CONAN: Go ahead, Joe.

 JOE: Well, when you hook people, though, on this type of a diet, it's hard to break away from it, and food is addicting. We know this. In nutrition we study it all the time. And when we are bringing up generations on this type of eating habit, it has a cost to society, and I think that's what these lawsuits are about and probably should be about.

 CONAN: But, Joe...

 JOE: And they should pay their way accordingly.

 CONAN: Joe, wouldn't that depend on your definition of addictive?

 JOE: Well, when you look at the studies and whatnot, if you keep on with repetitive behavior over something and you can't necessarily break away from it, then I think that's a pretty good case for saying something is, indeed, addictive. And that's what's happening, especially with these young kids that we're bringing them up--we indoctrinate them in the schools. We have the exposure through all the media outlets that we have, and then we put them all around their neighborhoods. Maybe they don't feel they have as many choices. And I agree with the free-will argument, but the thing is we're not really giving them those choices from a very early age, so we are putting them into these habits that are destructive habits.

 CONAN: OK, Joe. Thanks very much for the phone call.

 JOE: Thank you very much.

 CONAN: Mark, you have been involved in testing new fast-food products, some of which did not pan out. Could you give us one quick example?

 Mr. COTTER: Well, I mean, they all test new products daily, each one of these organizations, with their--you know, there's a lot of R&D involved in new products. You know, McDonald's best-case study was the Hula Burger.

 CONAN: The Hula Burger?

 Mr. COTTER: The Hula Burger, yeah, which, you know, consisted of grilled pineapple and two slices of cheese on a toasted bun.

 CONAN: Well, Mark Cotter, we might understand why that one didn't work. Thanks for being with us.

 Mr. COTTER: You've also had some testings with, you know, the new...

 CONAN: You're listening to TALK OF THE NATION from NPR News.


 CONAN: This is TALK OF THE NATION. I'm Neal Conan in Washington.

 Tomorrow, join Ira Flatow on the next "Science Friday" for a talk with oceans expert Carl Safina about his new book "The Eye of the Alabatross," plus new evidence for life on Mars. That's tomorrow on TALK OF THE NATION.

 Today we're talking about obesity and overweight as a public health concern. Who should have responsibility for getting us to eat better? The law, the restaurants or you? Our guests are John Banzhaf, professor of public interest law at George Washington University, and John Doyle, co-founder of the Center for Consumer Freedom, a coalition of more than 30,000 restaurant and tavern operators. If you'd like to get in on the conversation, our phone number is (800) 989-TALK. That's (800) 989-8255. Our e-mail address is

 And let's go to Mark, who's with us from Ontario.

 MARK (Caller): Yes.

 CONAN: Ontario where?

 MARK: Niagara Falls.

 CONAN: Niagara Falls. OK. Go ahead.

 MARK: Well, all these lawsuits keep on coming up, and it's all because people are not being accountable for their own actions. And where does all this money go all the time? Do individuals get this money? It's just getting so frustrating that every time you turn around you're hearing of different lawsuits. And, you know, I always wonder where this money goes.

 CONAN: I guess, John Banzhaf, it would depend on the type of lawsuit as to where the money would go, right?

 Prof. BANZHAF: Exactly. If it's an individual lawsuit, the money usually goes to the individual. The attorney who brings it takes a share because he does it on a contingency basis. Where the states sued, the money went to the states. We had hoped that much of it would go to anti-smoking messages. Unfortunately most of the states are spending it on other things, but it's their choice; they won the money.

 MARK: The other thing is, now it's coming down to a lot of places where we're having hard air to breathe. The air's not getting clear, either. Is that going to be something that we can actually go after all these companies to start suing them for better air? Is that going to go that far?

 Prof. BANZHAF: Actually, there are environmental organizations which are bringing lawsuits, trying to clean up your air. And, in fact, if we had the time, we'd go into how many of them have been successful and why they are working.

 MARK: I guess the point is it's just frustrating that it always has to come down to this level of our society. I mean, it's a shame that people can't be held accountable for their own actions. And it almost seems like it's getting to a point now that--nothing against lawyers personally, but it seems like they're drumming up work on the side. It just seems like it's just getting out of hand. But anyways, just questions that get frustrating, I guess, for every individual. But good luck on it, and maybe it will change the fast food. It's definitely getting out of hand, but I find it hard to believe that these companies can be held accountable for people having their own choice. I guess that's part of the whole conversation today. But anyways, I thank you very much for your time.

 CONAN: OK, Mark. Thanks very much.

 John Doyle.

 Mr. DOYLE: Yeah. I think the earlier caller, Joe, from Minneapolis, has actually opened my eyes. I've been thinking about it. I do eat every day and I feel uncomfortable when I don't eat. There may be this addictive nature. And I actually gravitate toward tasty food. And oftentimes I'm looking for a bargain. I may have been wrong, John.

 Listen, guys. This is absurd. We're talking about people, restauranteurs, who make food that people enjoy. Yes, they do make it taste good. Yes, they offer bargains. They're trying to draw people into their store to buy food. They advertise their ware. All legal, all safe, all part of a balanced diet. You want to lose weight? Eat less and exercise. It is the key to success.

 Prof. BANZHAF: And, Neal, you know, that's exactly what the tobacco industry said. It's a legal product. People choose it. And there's a very interesting, eerie similarity between what one of your earlier callers said. One of the issues we used in tobacco was that they were deliberately altering the nicotine content, or the PH(ph) or whatever, to get people to smoke more. This is very interesting. They deliberately lowered the cooking temperature so these thing would absorb more and more fat. Does anybody remember hearing an announcement? Did McDonald's get on the air or put in their ads, 'People, let us tell you we've now increased the amount of fat in our french fries by 15, 20, 50 percent, whatever it is; be warned, if you still want to eat that much fat, fine, come on in and do it'? No. There was no warning. This is a very interesting point. I think we may be able to raise it in a lawsuit.

 CONAN: If you do win these suits, John Banzhaf, consumers, I guess, will ultimately be paying a lot more to go in and get lunch.

 Prof. BANZHAF: Well, that's true, but ultimately they may be better off in their pocketbooks because to somebody who eats out once every two or three weeks as a special treat, it's going to be a small amount. For the people who eat out five or 10 or 15 times a week, if the price is increased, many of them will eat less. That will lower this huge $115 billion cost. Now my opponent doesn't like the figures that the surgeon general comes up with. Quite frankly, I trust the surgeon general and the Centers for Disease Control over the Restaurant Association, but maybe your listeners trust the Restaurant Association.

 Mr. DOYLE: And, Neal, I trust the American people to make their own food choices. Mr. Banzhaf here is talking about increased prices will actually have a beneficial effect by forcing people's hand, forcing them away from choices they want to make. Tobacco is not food; food is not tobacco. Food is not addictive; Tobacco on its face in any usage is dangerous; food on it's face is not. This is not John Doyle. This is the American Medical Association, the USDA, the American Heart Association, on and on. Even, interestingly, Marion Nestle herself suggests that there are no good foods and bad foods. To demonize a product, as Mr. Banzhaf's doing, is a money game. This is about making money for trial attorneys. It has nothing to do with health. Again, I would refer as many people who would care to read it New York Times' July 7th Sunday Magazine.

 CONAN: Our next caller is Jack in Chicago.

 JACK (Caller): Hi. I just wanted to--I am not an attorney, but I kind of want to defend the idea of lawsuits because lawsuits are intended to impose costs on producers of products that cause problems for their users in the same way that the price of a pack of cigarettes has gone up to help fund the cost of treating people for smoking-related diseases. And the rising cost of cigarettes means people are going to smoke less. I think the same thing could be applied for fast-food manufacturers because they're trying to shift the cost of treating obesity away from themselves, and...

 CONAN: Well, let's put that to John Doyle. And I know you object to these particular lawsuits, but clearly, trial lawyers have forced a lot of changes and a lot of industries that are good for consumers.

 Mr. DOYLE: If you're talking about changes to tobacco, yes. We're talking about a product that has no safe usage level. We're talking about food, though, here. And you can use--I can eat a triple cheeseburger and cheese fries in moderation and exercise and have no ill effect whatsoever. There is nothing wrong with the food. This, again, is USDA. This is the federal government, the government that John just praised, in its determination. There is no...

 JACK: Well, this reminds me a little bit of the early defenses of the tobacco industry who said it first: 'This really isn't that bad for you.' They used doctors in their advertising. And then when that argument failed, they said, 'Well, let's talk out of the other sides of our mouths and say that you should have known better. You should have known that these things were bad for you.'

 Mr. DOYLE: So...

 JACK: I mean, I don't think you can have it both ways.

 CONAN: Go ahead, John.

 Mr. DOYLE: Are we as a society, or are you as an individual, accepting the fact that food is inherently bad for you, then that it has an addictive nature? I think the science would argue slam dunk against that point of view. But the hype and the hyperbole and the PR campaign that this actually is is trying to convince more and more Americans that they should fear their own food and allow a trial lawyer or a government agency to make their food choices for them. We would strongly disagree.

 CONAN: John Banzhaf?

 Prof. BANZHAF: And what I would argue is that nobody's going to stop anybody who wants to eat one of these foods from eating them and as often as they want. What we'd like to do is make sure they know the fat and calorie content of the food, that they know appropriately what the risk is and that they pay for their fair share of the cost. Now there's maybe no good food and bad food in the sense it's going to kill you, but I hope that nobody's going to be dumb enough to come into court and argue that you can eat triple bacon cheeseburgers 10 times a week and you're not going to get fat. Obviously, we want to deter eating some kind of foods too much. We want to encourage eating some kind of foods more, and that will help reduce obesity.

 CONAN: I'm sorry. John Doyle.

 Mr. DOYLE: The 10 times a week is a lifestyle choice. It is not the burger in question; it is the person who chooses the 10 times a week. That education needs to be had. It is not the burger, it is the lifestyle, that caused that problem.

 Prof. BANZHAF: And let the man pay for the choice. Let him bear personal responsibility instead of making people, like our host, who is, obviously, not obese, pay far more on his taxes and far more on his health insurance.

 JACK: Well, if the food industry charged the price for that burger that includes the cost of treating the eventual heart disease, then the price doesn't have to go up very much for people that have one burger a month, but it goes up quite a bit for the people that are eating a lot. And that lets the market do its beautiful thing and change behaviors for the people that need the change without penalizing everybody else. I mean, you know, personal injury lawyers, yeah, they make a lot of money, but on the other hand, you know, a lot fewer people are falling down elevator shafts and slipping and falling on, you know, the floor of the store because of the changes that people have made in how they prevent these accidents. And, you know...

 CONAN: Well, Jack, you get the last word.

 JACK: ...that's a positive social outcome.

 CONAN: Jack, you get the last word. Thanks very much for the call.

 JACK: Thanks.

 CONAN: And our guests--I want to thank both of them for coming in today. John Doyle, co-founder of the Center for Consumer Freedom. He was here with us in studio 3A. Appreciate it.

 Mr. DOYLE: It was a pleasure. Thank you.

 CONAN: And John Banzhaf, professor of public interest law at George Washington University, thanks so much for coming in.

 Prof. BANZHAF: Thank you very much.