GUESTS: John Banzhaf, Richard Berman

 BYLINE: Bill Hemmer

 HIGHLIGHT: A new lawsuit is trying to prove that fast food chains are responsible for making us fat.

 BILL HEMMER, CNN ANCHOR: A new lawsuit is trying to prove that fast food chains are responsible for making us fat.

 (BEGIN VIDEO CLIP)

 UNIDENTIFIED MALE: It's very tough to me, because I enjoy a lot of these types of foods. I try my best. Sometimes I lose. Sometime I win. But I don't blame anybody for my weight. It's my own responsibility, and I know that. (END VIDEO CLIP)

 HEMMER: Just this week, a lawsuit was filed against McDonald's, Burger King, Wendy's and KFC, accusing them of not telling consumers what's really in the food.

 Let's talk about it now, John Banzhaf, an expert on public interest law is advising the plaintiff's attorneys in this lawsuit.

 Sir, good morning to you.

 Also from Richmond, Virginia, Richard Berman, the executive director of the Center for Consumer Freedom, a coalition of about 30,000 restaurants.

 Sir, good morning to you as well.

 RICHARD BERMAN, CENTER FOR CONSUMER FREEDOM: Good morning.

 HEMMER: Professor, what does the suit allege specifically?

 JOHN BANZHAF, PROF., PUBLIC INTEREST LAW, GEORGE WASHINGTON UNIV.: The suit alleges that the plaintiff, Mr. Barber, is 56 years old. He ate out at fast food restaurants four or five times a week. As a result, it says, he became obese and suffered from hypertension, diabetes and now two heart attacks.

 Basically, he's saying that if the same standards we applied to other foods -- for example requiring disclosure of calories and fat content -- were applied to fast food restaurants; if they provided warnings, as, for example, dozens of other manufacturers do, like other well known hazards such as electrocution; he probably wouldn't have been obese and suffered these problems. It's an opening gun in trying to make the fast food companies bear some of the responsibility, not all, but some of the responsibility for the huge cost of the epidemic of obesity.

 HEMMER: Who made the choice to eat there?

 BANZHAF: Excuse me.

 HEMMER: Who made the choice to eat there?

 BANZHAF: Obviously he made the choice. The question is not whether he has some responsibility. Clearly he does. The issue before the jury is whether or not the fast food companies, by running incessant ads, no warnings, no clear and conspicuous disclosure of fat content, etc. bear at least some of the responsibility. We think they do, and that's what the juries are saying in tobacco cases.

 HEMMER: The plaintiff as you mentioned, Ceasar Barber, on last night with Connie Chung, listen to what he had to say last night on CNN.

 (BEGIN VIDEO CLIP)

 CONNIE CHUNG, CNN ANCHOR: So you had one heart attack, and then you continued eating this food?

 BARBER: After the first heart attack because it was -- the advertisement that got me, it was 100 percent beef, which I associated with being good.

 BANZHAF: Inform the public that some of the stuff is really hazardous and dangerous to your health. Some of them have more than 1,500 calories, over 60 grams of fat, loaded with sodium and so forth.

 (END VIDEO CLIP)

 HEMMER: Again, from Connie Chung last night. Richard, what about all this? They are saying, just inform the public. Is it that simple?

 BERMAN: Well, first of all, John said this is the opening gun, and I think the opening gun is shooting blanks. He's not even going to get this case before a jury, because it's not about this one plaintiff, Mr. Barber; they're trying to file a class-action suit. And under the federal rules, as well as under New York State rules, you have to show that there's common facts that predominate in a case like this in all the members of the class, which are supposedly heavy, overweight people who have eaten in fast food restaurants. And there's not going to be a commonality of facts. People have eaten different foods. They've eaten them in differing amounts. The portion sizes are different, there's a question as to what other foods people eat. There's a question of genetics between people.

 So the questions in fact are not going to be common, and that's going to keep them out of a class-action suit. If these guys don't have a class-action suit, they're going to drop this thing like a hot potato, because there's not any money in it, and that's what Banzhaf and these guys are all about. Suits like this are what give trial lawyers such a bad time.

 This guy, Barber (ph), despite the fact that he had some problems, he admitted that he had a heart attack, and the doctor told him to change what he was putting in his mouth, and he kept on eating. In fact, the lawyer that filed this suit also has a charge that there's a violation of the Consumer Protection Act. Well, actually it's the New York version of the Consumer Protection Act, saying that, in fact, because the companies offered value, because they would allow you to buy the foods at cheaper prices, that consumer fraud is involved.

 You know, at the end of the day, this is a PR stunt that is masquerading serious litigation, and I don't even know how John can do this with a straight face.

 HEMMER: How do you defend that?

 BANZHAF: Part the answer here is, they said exactly the same thing about all the tobacco suits. We've now won over $250 billion. If they weren't worried about these kinds of suits, they wouldn't be hiring people like Mr. Berman to run attack ads. They wouldn't be beginning to experiment with exactly the kinds of warnings that we've asked them to do.

 HEMMER: What if they put up the warnings in the restaurant? What if you walked in, they said, a Big Mac contains such and such and such and such, would that do it?

 BANZHAF: Bill, that would go a long way toward solving the problem.

 BERMAN: That information is available at every one of these restaurants.

 (CROSSTALK)

 BANZHAF: ... What we are seeking is conspicuous disclosure of the fat and calorie content. We're asking for no more than what you get with any other product.

 BERMAN: John...

 BANZHAF: When you go in and buy a TV set...

 BERMAN: John, you know that this...

 (CROSSTALK)

 HEMMER: All right, hang on one second. I'm sorry, guys. We're running up against the clock here.

 John, finish your point. You have 10 seconds. And, Richard, we'll come back to you for 15.

 BANZHAF: When you buy virtually any consumer appliance, there are warnings. There are none here. When you go into the food store and buy virtually any food, you get a clear and conspicuous disclosure of the fat and calories. There are none here. If they weren't worried about it, McDonald's wouldn't have given us $12 million in our suit. We're about to settle another suit in Florida. This is the fifth in a chain of lawsuits.

 HEMMER: Richard, quick thought here. Some things are obvious, don't you think?

 BERMAN: The McDonald's lawsuit had nothing to do with obesity. John knows that.

 BANZHAF: It had to do with fat disclosure, Rick; you know that. Your clients paid for it.

 BERMAN: It had to do with using beef cow in French fries. It had...

 (CROSSTALK)

 BANZHAF: It had to do with failure to disclose the content of the food.

 BERMAN: John, I didn't interrupt your last few seconds.

 BERMAN: The fact is, you go into any of these franchises, and the information is available. It's been available for years. It's posted. It's in pamphlets.

 HEMMER: We have got to run.

 BERMAN: And what's more, Wendy's has had salads since the '70s. So to say that there aren't good foods available is a ridiculous statement on John's behalf.

 BANZHAF: We'll see you in court, Rick.

 (CROSSTALK)

 HEMMER: I guess we will, at some point possibly.