Obesity News Releases - Prof. John F. Banzhaf III

RECENT NEWS RELEASES RELATED TO USING LAW AS A WEAPON AGAINST OBESITY

Prepared as a public service by public interest law professor John F. Banzhaf III ; http:/banzhaf.net
For More Information, and Links to Many Published Media Reports, go to: http://banzhaf.net/obesitylinks

BIG FAT SOLUTIONS: Discriminate Against Obese, State Law Suits, and Dram Shops Acts
Various Options Discussed In Prelude to Next Week's Conference on Bringing Fat Law Suits
As more public attention continues to be focused on America's growing epidemic of obesity and the huge costs it imposes on society and on the majority of taxpayers who are not obese, interesting new approaches to fighting the problem continue to emerge.Big_Fat_Solutions_Continued

AMA SEEKS FAT TAX : British Medical Assn Backs Plan - Mars Bars Fat in Candy
Alarmed by the growing epidemic of obesity, and studies showing that most of its huge costs are born by taxpayers who are not obese, the AMA and the British Medical Association are both recommending a fax tax as a "shock tactic" to help keep overweight down. Sri Lanka already has a tax on unsaturated fat products.
The British Medical Association is asking the government to impose a 17.5% additional tax on fatty foods.AMA_Seeks_Fat_Tax Continued

JURORS SUPPORT FAT SUITS: Almost Half Blame Fast Food Companies for Obesity ; As Likely to Vote for Plaintiffs as in Tobacco Suits
Plaintiffs have already won three of the seven current fat law suits, and are in line to win at least two more, says public interest law professor John Banzhaf, whose law students instigated the first winning fat law suit against McDonalds, and who is advising on another which will go to court within several weeks.
Meanwhile, 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.Jurors_Support_Fat_Suits Continued

BIG FAT SOLUTIONS:
Discriminate Against Obese, State Law Suits, and Dram Shops Acts
Various Options Discussed In Prelude to Next Week's Conference on Bringing Fat Law Suits

As more public attention continues to be focused on America's growing epidemic of obesity and the huge costs it imposes on society and on the majority of taxpayers who are not obese, interesting new approaches to fighting the problem continue to emerge.

For example conservative law professor Richard Epstein of the University of Chicago recently proposed allowing employers, schools, insurers and other similar institutions to "discriminate against any person who is obese." HHH Secretary Tommy Thompson previously endorsed at least part of this suggestion, proposing that health insurance companies charge obese persons more than those who maintain a healthy weight.

Public interest law professor John Banzhaf, whose law students helped win over $12 million from McDonald's in the first fat suit, and who is serving as a consultant on a second major law suit against McDonald's to be argued later this month, had previously helped persuade the National Association of Insurance Commissions to advocate requiring health insurance companies to force the obese to pay more, just as some of them are now beginning to require smokers to pay more for their health insurance.

Reasononline columnist Ronald Bailey thinks discriminating against obese people is a good idea for at least two reasons. He writes: "First, this policy would impose the costs for being overweight on individuals, giving them stronger incentives to slim down. (I know from personal experience that such policies work. For example, I decided to quit smoking shortly after I got turned down for a job because I was a smoker.) Second, since most employers want a healthy workforce, it would give them an incentive to help employees control their weight, perhaps by doing things like restricting what's served in the company cafeteria, or offering exercise facilities."

Michael Greve, a scholar at the American Enterprise Institute, thinks that some state attorneys general will soon begin to sue fast food companies, making use of legal theories similar to those used in the hugely successful state law suits against cigarette makers. These suits forced the tobacco companies to pay hundreds of billions of dollars to states to compensate them and their taxpayers for the huge costs smoking imposes on them, and to make significant changes in the way their products were advertised and promoted. Said Greve: "It won't be too long before state attorney generals get in on this. There's too much money on the table."

Columnist Walter E. Williams said that the movement might even go further, possibly to the point of limiting the sale of fattening products to obese people. "Maybe as an alternative to taxes, there might be a call for laws similar to what's called the Dram Shop Act in some states, which prohibits the sale of alcohol to intoxicated persons. Applied to food, that law might ban the sale of hamburgers and fries to a fat person . . ."

These suggestions come as lawyers and policy makers prepare to gather in Boston for the first conference on using legal action as a weapon against the problem of obesity. Public interest law professor John Banzhaf said that legislation to fight obesity is preferable to litigation but, "if legislators don't legislate, then litigators will litigate" -- noting that he pioneered the very successful use of legal action against smoking because legislators refused to take effective steps.

He said that three so-called fat law suits had already been won, that pressure from the law suits and the publicity the movement is getting has already pressured McDonald's into paying over $10 million to charity, warning people not to eat at McDonald's more than once a week, agreeing to list the calorie and fat content of meals on the wrappers, and offering many healthier alternatives, including fresh fruit.

"At least we lawyers are doing something about this problem which others are wringing their hands and praying that a sudden exponential increase in personal and parental responsibility will miraculously halt the obesity epidemic," he argued. Return to Top of Page

AMA SEEKS FAT TAX
British Medical Assn Backs Plan -Mars Bars Fat

Alarmed by the growing epidemic of obesity, and studies showing that most of its huge costs are born by taxpayers who are not obese, the AMA and the British Medical Association are both recommending a fax tax as a "shock tactic" to help keep overweight down. Sri Lanka already has a tax on unsaturated fat products.

The British Medical Association is asking the government to impose a 17.5% additional tax on fatty foods.

There is also growing evidence that fear about fax taxes and fat law suits -- three of which have already been successful -- are prompting food companies to make significant changes.

McDonald's for example, in addition to warning customers not to eat at their fast food outlets more than once a week, has already introduced healthier menu choices, including fresh fruits

More recently, the menu for Mars bars has been changed amid health concerns over a fatty ingredient. Hydrogenated vegetable fat has been removed from the popular chocolate bar because of its links with high cholesterol levels and heart disease.

AMA Vice President Mekesh Haikerwal said that the Australian Medical Association is preparing to discuss its proposal with the federal government. A tax on fatty food would help to create a healthier society but "shock tactics" were needed to arrest the spread of obesity, he said.

"The discussion needs to be had," Dr Haikerwal said. "There needs to be a giant wake-up call, obesity is a major drain on our resources, on our health systems and workplaces."

Australian health ministers will meet next month to consider a national strategy -- including possible fat taxes -- to battle obesity levels with new evidence showing that within the next decade four-out-of-ten children will be overweight. Diabetes Australia spokesman Alan Barclay said the plan was "definitely worth considering for the battle against diabetes".

There also appears to be growing support in the U.S. for taxes on fattening foods, says public interest law professor John Banzhaf, who helped initiate one of the three fat law suits which has already been successful.

He is also a consultant on the pending law suit charging McDonald's with contributing to the obesity of minors.

The authors of a study in the May/June issue of HEALTH AFFAIRS contend that governmental action is needed to curb the $93 billion obesity contributes to health costs each year, with more than half being paid by taxpayers for funding obesity-related medical expenses under Medicare and Medicaid.

"'If people want to be 200 pounds, then that's their choice, but ultimately, if the taxpayer is paying for those choices, certainly, in my mind, that is where the justification for government involvement comes from,' said economist Eric Finkelstein, who conducted the research with Ian Fiebelkorn of RTI International and Guijing Wang of the CDC."

FOX NEWS also reports: "'You now have a report that says the taxpayer is being hurt because of obesity. Ah, now the federal government will have to step in to protect people from their habits,' said Tom DeWeese, president of the American Policy Center, a civil libertarian watchdog group based in Virginia.

"There are a lot of forces at work here -- some will work in the courts, some through legislation -- he said. "What you'll find is the report is the smoking gun for all these forces to use.'" Return to Top of Page

JURORS SUPPORT FAT SUITS - STUDIES
Almost Half Blame Fast Food Companies for Obesity
As Likely to Vote for Plaintiffs as in Tobacco Suits

Plaintiffs have already won three of the seven current fat law suits, and are in line to win at least two more, says public interest law professor John Banzhaf, whose law students instigated the first winning fat law suit against McDonalds, and who is advising on another which will go to court within several weeks.

Meanwhile, 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.

According to one recent survey, 87% of Americans say that children and teenagers are more overweight today than in the past, and 68% agree it is a "major health problem." Even more importantly, half of all Americans say that the epidemic of childhood obesity is caused by eating unhealthy food, and of those 41% "blame children's consumption of fast food" in whole or in part. Forty eight percent of Americans believe that "children are eating more fast food than you [parents] did," while only 32% think their children are getting less exercise. Actually, over 65% of those surveyed think that children are getting the same amount of exercise - or more - than their parents did when they were young.

This means that the fast food industry's primary answer to the childhood obesity problem - i.e., it's the children's fault for watching too much television and playing too many video games or web surfing - isn't likely to persuade most juries, says Banzhaf. "Indeed, if almost half of all prospective jurors are already willing to put some - or even most - of the blame on the fast food industry, just think how many will be willing to award damages when we show them the misrepresentations, half truths, and sneaky tactics we've already uncovered which the fast food companies engage in," he said.

Two recent surveys show that potential jurors are about as likely to vote for plaintiffs in obesity law suits as they are to support smokers suing tobacco companies, even before hearing any evidence, and even prior to any court-ordered discovery of incriminating fast food documents.

"This is a remarkable finding, since we have had many years of successful tobacco litigation, public revelations about widespread wrongdoing by cigarette manufacturers, and literally tons of very incriminating and damaging tobacco industry documents, while the obesity law suits and public understanding about them are still in their infancy," says Prof. John Banzhaf of George Washington University Law School.

A 2002 survey found that 53% of potential jurors would side with tobacco companies if they were sued by a smoker, and only 28% said that they would vote for the plaintiff. Now, a new March 2003 survey of potential jurors by a litigation research firm shows that, in a suit by an obese person against a fast food chain, 56.5% would vote for the defendant, and 24.4% would award damages to the plaintiff.

"This virtually identical result is astonishing, given that McDonald's and others have called the fat suits 'frivolous' and 'senseless,' and that most potential jurors don't yet know about studies showing that fast foods are the major cause of obesity; that fast foods can produce addictive effects -- like nicotine -- in many users; and that the chains deliberately manipulate the foods to make them far more dangerous and habit-forming than they would otherwise be," says Banzhaf, whose law students won the first fat law suit against McDonald's.

"Although a bare majority of potential jurors -- 56.5% -- did say they would vote for the fast food defendant, this response was elicited without hearing any of the plaintiff's evidence, and only after respondents were asked a question which may have inadvertently colored their response. The potential jurors had been asked if parents and caretakers, not restaurants, should be blamed if children become overweight from eating too much fast food. But, argues Banzhaf, that question falsely suggests that the law recognizes only one cause for an injury or illness.

On the contrary, he says, all jurisdictions recognize that there can be two or more causes of injuries or illnesses, and in such situations each cause is held responsible for its fair share of the damages. This occurs very frequently when the driver injured in an automobile accident, as well as the other driver, was negligent, but is still able to recover damages.

It also occurs when careless people fall off the top step of step ladders, or are electrocuted by using electric hair dryers around water faucets or even in the shower. In such cases manufacturers are also held liable if they -- like fast food companies -- failed to provide any warnings of the risks of using the products, even through these dangers are at least as clear, obvious, and well known as the dangers of eating fast foods.

Cigarette manufacturers are routinely being held liable for millions -- and in some cases billions -- of dollars in suits brought by smokers even though, in virtually every case, the smokers admitted that their negligent conduct was one of the causes of their illness. Moreover, in the tobacco cases the plaintiffs are adults, whereas in the McDonald's case in which Banzhaf is serving as a advisor, the plaintiffs were young children when they used the product.

Banzhaf also notes that the law does not blame children for the negligence of their parents. "McDonald's is careful to provide very clear notices with the small toys it distributes warning that they are not to be given to young children because of the dangers of choking. If they failed to provide such a warning and the child choked, McDonald's would almost certainly be held liable for failing to provide a clear and conspicuous warning, even though the danger was obvious and the parents were clearly negligent for giving the toys to their infants."

If the survey respondents were asked whether fast food companies bear -- along with parents and caretakers -- some responsibility for the sudden epidemic of obesity in children, and were then asked if the companies should be held liable for their fair share of the resulting costs, the number of potential jurors willing to vote for the plaintiffs almost certainly would have been far higher, even before they hear the evidence, suggests Banzhaf.

In fact, there is lots of very powerful evidence that jurors would hear which would also likely help persuade the undecided -- and even those who now potentially side with the fast food chains -- to vote for plaintiffs, says Banzhaf. This includes:

* a careful economic study showing that the proliferation of fast food restaurants -- and not personal responsibility, lack of parental responsibility, eating habits at home or in traditional restaurants, etc. -- is responsible for over 65% of the current epidemic of obesity;

* numerous scientific studies showing that frequent eating of fast foods can produce addictive-like effects -- similar to those of nicotine or even heroin -- not only in humans, but even in laboratory animals which have been made to experience withdrawal symptoms;

* testimony about how fast food chains deliberately alter foods to increase the amount of fat, saturated fat, and calories to dangerous amounts far higher than most consumer realize;

* economic evidence that obesity costs the American public more than $115 billion a year, and that much of it paid for by people -- like most jurors -- who are not obese, in the form of higher taxes and vastly inflated health insurance premiums, since obesity balloons the cost of medical care for each obese person by approximately $1,500 a year.

Banzhaf suggests that potential defendants are certainly acting as if they worry that jurors may hold them liable for their fair share of the $115 billion annual cost of obesity:

* McDonalds in France is warning consumers not to eat at their fast food restaurants more than once every week, and PepsiCo will warn customers about overeating their junk foods;

* McDonalds will list the fat and calorie content of its menu items in Great Britain;

* More healthful menu choices are rapidly being added, with McDonalds now even allowing children to substitute fresh fruit for french fries with some of their Happy Meals;

* Both the National Restaurant Association and the Grocery Manufacturers of America have asked Congress for protection against obesity-related law suits, and Representative Ric Keller [R-FL] has already introduced such legislation [HR 339] for fast food chains. Return to Top of Page

OBESE MUST PROMISE TO DIET :
Fat Patients Must Pledge to Eat Balanced Diet to Promote Personal Responsibility

Overweight patients in Great Britain may soon be required to sign written pledges to eat a more balanced diet and to exercise more. The plan is part of a Labour party policy document being prepared for the next general election, and apparently has the approval of the health secretary, Alan Millburn.

The Labour Party made it clear that patients, particularly overweight people and smokers, must begin accepting some responsibility for their own health problems, and the written pledges are designed to remind them of their role in caring for themselves. The document says: "Agreements could be drawn up to help people to cut down or quit smoking, to lose weight, to take more exercise or to eat a more nutritious diet."

"Many critics of the fat suits I have been encouraging -- three of which have already been won -- argue that it is unfair to blame obesity on food manufacturers, and that the cause of the obesity epidemic is lack of personal responsibility. It will be very interesting to see, therefore, how many support this modest governmental step of seeking to impose more personal responsibility on those who are obese," said public interest law professor John Banzhaf, whose law students won the first McDonald's fat suit, and who is advising on the fat law suit against McDonald's scheduled to go to court later this month.

There is certainly good reason for the government to be concerned about the health costs of caring for those with obesity-related diseases, especially since tax payers are forced to bear so much of this cost in the form of much higher taxes and inflated health insurance premiums, says Banzhaf.

Indeed, a new study documenting that obese patients are contributing to skyrocketing Medicare and Medicaid outlays, and costing thin taxpayers tens of billions of dollars each year, is leading to calls from many quarters for actions to reduce the escalating epidemic of obesity, and/or to force those responsible to bear their fair share of the almost $120 billion a year it burdens the American public.

In addition to so-called fat law suits, there appears to be growing support for taxes on fattening foods, and for discouraging overindulgence by charging the obese more for health insurance, says Banzhaf, who helped initiate one of the three fat law suits which has already been successful. He is also a consultant on the pending law suit charging McDonald's with contributing to the obesity of minors.

The authors of the study, in the May/June issue of HEALTH AFFAIRS, contend that governmental action is needed to curb the $93 billion obesity contributes to health costs each year, with more than half being paid by taxpayers for funding obesity-related medical expenses under Medicare and Medicaid. "'If people want to be 200 pounds, then that's their choice, but ultimately, if the taxpayer is paying for those choices, certainly, in my mind, that is where the justification for government involvement comes from,' said economist Eric Finkelstein, who conducted the research with Ian Fiebelkorn of RTI International and Guijing Wang of the CDC."

FOX NEWS also reports: "'You now have a report that says the taxpayer is being hurt because of obesity. Ah, now the federal government will have to step in to protect people from their habits,' said Tom DeWeese, president of the American Policy Center, a civil libertarian watchdog group based in Virginia."There are a lot of forces at work here -- some will work in the courts, some through legislation -- he said. "What you'll find is the report is the smoking gun for all these forces to use.'"

In addition, HHS Secretary Tommy Thompson recently told CBS-TV News: "I also would like to see health insurance companies, you know, and health insurance, to give people credit on their health-insurance cost for being healthier. Why don't we get a credit on our health insurance if we live a healthy lifestyle?"

"Charging the obese more for health insurance -- just like smokers pay more for life insurance, people with wooden homes pay more for home insurance, and drivers with easily-damaged expensive cars pay more for automobile insurance -- makes sense for several reasons," argues Banzhaf.

First, it stops forcing the majority of people who maintain a normal weight to subsidize the unhealthy and very expensive obese lifestyle of a few, and there are several judicial opinions which suggest that failing to charge lower rates where they are clearly justified by cost data constitutes unlawful discrimination.

Second, higher insurance premiums would provide a very powerful and immediate financial incentive for the obese to lose weight, especially if they were forced to pay a substantial portion of the additional $1500 their obesity adds to their individual medical care costs each and every year.

Finally, the imposition of such differential health insurance rates -- which are already being applied in some cases to smokers -- would be a very effective way of educating and reminding people of the major risks obesity poses to their health.

Many are also beginning to argue that, just as we impose large taxes on cigarettes and alcoholic beverages to deter their consumption, perhaps we should also impose higher taxes on foods which are especially fattening. This would both discourage consumption, and provide money for health education messages to partially counteract the tens of billions of dollars spent each year to convince people to eat fattening foods.

"Alcoholic beverages, like fattening foods, are consumed by the majority of the population and, when used in moderation, are not dangerous to health. Yet we nevertheless impose high taxes on them to deter consumption, particularly by those who might use them in excess," argues Banzhaf.

To those who ask why thin people should be forced to pay more for their cheeseburgers simply to discourage over-consumption by the obese, Banzhaf suggests that those who eat fattening fast foods only occasionally will actually save money if fat taxes were adopted. "The added cost to a person who eats a fattening cheeseburger at a fast food outlet only once a month will be more than made up by his savings in taxes and health insurance from discouraging frequent consumption of those burgers by the obese," says Banzhaf. Return to Top of Page