by public interest law professor John F. Banzhaf III, [SEE NOTES BELOW]
San Francisco Daily Journal, February 4, 2002 [see generally http://banzhaf.net/obesitylinks.html ]

    Years ago reports that smoking costs the American public over one hundred billion dollars a year -- much of it paid by nonsmokers in the form of inflated health insurance premiums, higher taxes (to cover people under Medicaid, Medicare, Veterans' benefits), etc. -- triggered a number of corrective measures to shift more of that huge burden from nonsmokers onto smokers.
    People now wonder whether a recent Surgeon General's report that obesity annually costs almost as much as smoking -- and dozens of times the costs of the Enron scandal -- will precipitate similar measures to make the obese pay their fair share of these costs, and especially whether it might give rise to tobacco-like law suits against fast food companies.
    The answer is that two such law suits -- possible harbingers of the future -- are already doing well, and that other measures similar to those directed against the costs of smoking may well follow. {see below and notes}
    Obviously there are very important differences between the problems of smoking and obesity.  The argument that nicotine is addictive, and thus that smokers are not fully responsible for their actions, has no counterpart with food.  Foods are not harmful when used in moderation, whereas cigarettes are.  While food advertising usually doesn't stress the dangers of overeating, tobacco companies went far beyond a mere failure to disclose by deliberately lying and concealing evidence.
    Most importantly, while it may be possible to prove that smoking caused a particular lung cancer, and even to identify the company which sold it, it may be difficult to determine how much of a role obesity played in a heart attack death, and impossible to specify the responsibility of dozens of fast food chains as well as numerous other sources of high-fat and high-calorie foods.
    Given that difficulty, perhaps the best way to begin shifting the health costs of obesity to the obese might be to charge them more for health insurance, just as a growing number of companies are charging smokers more following a recommendation by the National Association of Insurance Commissioners.
    Another tactic would be to follow the lead of a large number of states which are dramatically increasing the taxes on cigarettes and using part of the proceeds to fund health-related messages.  Assessing a special tax on foods high in fat and calories, and using some of the proceeds to sponsor healthy eating messages, might go a long way to counter the billions of dollars spent annually on promoting the sale of high-fat and high-calorie items at fast food chains.
    As a last resort, and only if -- as with the problem of smoking -- the government does little to reduce the problem, law suits could be brought, especially against companies which misrepresent their foods.
    For example, my law students instigated a class action law suit against McDonald's, charging that it misrepresented the contents of its famous french fries.  As the Chicago Tribune reported, the suit has already forced McDonald's to apologize for "duping" people, and noted that "even the most careful consumers can't protect themselves when a food producer hides what's in its product." {1}
    A second law suit filed by a disgruntled customer in Florida, outraged when she learned that a so-called low-calorie and low-fat ice cream had at least three times the calories and fat she was led to believe, has likewise been granted class action status by a judge, and could involve one million customers.
    Similar law suits might be filed against other misleading food promotions.  For example, some groups believe that many of the "milk mustache" ad claims are false or deceptive, and that pork's claim to be "the other white meat" is misleading.
    Since the law recognizes that consumer protection statutes can be violated by not disclosing material facts as well as by outright lying, the failure of major fast food chains to clearly and prominently disclose the fat and calorie content of many of their meals might also support a class action law suit.
    Clearly none of these legal tactics would prevent anyone from eating fattening foods, any more than taxing cigarettes, charging smokers more for health insurance, and forcing smokers to pay through increased prices for the law suits against cigarette manufactures prevents anyone from smoking.
    Some argue that there is a right to voluntarily engage in unhealthy behaviors, but there certainly is no right to require others to subsidize the huge costs.  The principle of "individual responsibility" arguably requires people to bear the consequences and the full costs of their own choices, and higher health insurance costs for those who live unhealthy life styles, as well as taxes on unhealthy products, are two ways to move towards this goal.


JOHN F. BANZHAF III is a Professor of Public Interest Law at the George Washington University Law School in Washington DC. http://banzhaf.net
  He has been called "the Ralph Nader" of the tobacco industry for his anti-tobacco efforts, including banning cigarette commercials and smoking in many public areas, as well as getting health insurance companies to charge smokers more.  http://ash.org
   He and his law students are also behind a class action law suit against McDonald's based upon its alleged misrepresentation of its french fries.

{1} McDonald's has now settled this precedent-setting law suit by paying out over $12 million,  apologizing, and agreeing to provide adequate disclosure of the fat content of its french fries.  Most of the money will go to charitable organizations concerned with food.
For additional information about the class action law suit against McDonald's, check out this web site by the lawyer who brought the legal action: hbharti.com
For more information about the law students who helped to bring about the class action law suit against McDonald's, and have subsequently formed a legal-action vegan organization [VLAN], see  Vegetarian Legal Action Network OR  VeggieFries

{2} Since this article was written, four additional fat-fraud law suits have been filed.
THREE: The third such class action law suit is seeking $50 million and claims that the makers of "Pirates Booty" grossly under-represented the fat content of its very popular corn and rice puffs by more than 340%.
FOUR: Using some of the same legal theories, Pizza Hut is now being sued for allegedly failing to disclose that there is beef fat in its Veggie Lover's Pizza.  In this fourth fat-fraud law suit, the plaintiffs have requested that a judge certify it as a class action so that the plaintiffs can sue on behalf of an estimated one million vegetarians, and others such as Hindus, whose religions prohibit eating any beef.
FIVE: An obese adult has filed a  law suit against four fast food companies for allegedly making him obese; but that law suit is now dormant.   See, FAT SUIT FILED, Fast Food Chains Blamed For Obesity, Illnesses, ABCNEWS.COM [07/26/02] link  OR Would You Like Fries With That?, American Morning With Paula Zahn, CNN [07/26/02]  link ; Who's To Blame For Obesity, Crossfire, CNN [07/26/02]  link
To read the complete legal complaint,  click here
SIX: Several obese children have filed a complaint against McDonald's, seeking to hold it responsible for its part in causing them to become obese.  A judge has granted plaintiffs 30 days to amend the complaint, see other references on the main page http://banzhaf.net/obesitylinks.html
To read the new legal complaint on behalf of children who were lured into obesity, click here


To read an interesting judicial opinion in which a court upheld a complaint that ads for sugary cereals aimed at children were deceptive, click on :  Comm. for Children's Television Inc.  v. General Foods Corp., 673 P.2d 660 (1983) (Supreme Court of California)

As of June 2000,  17 states including California and New     York Chicago, and the District of Columbia already have special taxes on soft drinks or snack foods.  link

Fast-Food Restaurants Face Legal Grilling - Lawyers explore whether the fast-food industry should be liable for the effect its meals and marketing have on public health, Christian Science Monitor [08/08/02] link

Fast Food Nation, Book Review link

Food For a Fat Nation, USA Today link

Fighting Big Fat, Newsweek link

FOR MORE INFORMATION, RETURN TO MAIN PAGE AT   http://banzhaf.net/obesitylinks.html