Monday, July 11, 2005

Obesity Lawsuits Trying to Follow Tobacco Model

An online New York Times article yesterday discussed a number of lawsuits against fast food companies, in which the companies are charged with being "responsible for America's obesity crisis." One such suit, Pelman v. McDonald's, filed in 2002, accuses the restaurant chain of "making two teenage customers in New York fat and unhealthy." The personal injury claim in that suit (that the plaintiffs were harmed by eating McDonald's food) was thrown out by the trial judge, but a deceptive practices claim (that McDonald's falsely marketed its food as being of nutritional value) remains.

A number of states (20, according to the article) have passed laws that preclude citizens from suing the food industry, including restaurants, based on the claim that they caused an individual to develop obesity and/or its adverse health sequelae. However, such suits are still possible in the remaining states. Even in those states, though, obesity-related lawsuits may still be pursued, as state consumer protection laws may allow lawsuits based on the argument that fast food companies have deceptively marketed their products.

The Rest of the Story

I thought it was a big joke five years ago when The Onion ran a lead story the day after the Engle verdict (awarding $145 billion in punitive damages against tobacco companies for deceptively marketing their products and harming smokers) was announced; the story revealed that fast food companies had been assessed punitive damages of $145 billion for making their customers obese and causing obesity-related diseases.

But it turned out not to be a joke at all. Trial lawyers pounced on the opportunity and in 2002, there were at least two major personal injury lawsuits filed, hoping to hold fast food companies accountable for causing obesity and/or health damage among frequent customers. There actually was (and still is) a feeling out there that obesity lawsuits could follow the model of tobacco lawsuits and bring about change in fast food company behavior while reclaiming millions of dollars in damages for plaintiffs.

However, there are a number of major differences between tobacco companies and fast food companies and the nature of the products which they manufacture, market, and sell which I think make such obesity-related lawsuits groundless.

First, while cigarettes are inherently dangerous, there is nothing inherently damaging to health about eating a Big Mac. Cigarettes contain carcinogens and toxins that cause damage to one's health - immediately. There are measurable changes in the blood's ability to carry oxygen, in the ability of cilia in the lung to remove toxic substances from inhaled air, and in the excessive adhesion of platelets in the blood, that occur shortly after inhaling the smoke from just a single cigarette.

But the fat contained in a Big Mac is not only non-toxic, but it is essential to life. Without fat in the diet, we could not survive. And there is a certain proportion of calories from fat in the diet that is healthy. At a lower proportion of fat, we would actually not be as healthy.

Second, while cigarettes are unhealthy when used as directed, food from McDonalds or Burger King is not. Even if one smokes in a "responsible" manner, one cannot avoid having adverse health effects and health damage. Even light smokers have demonstrable impairment in health, including reduced exercise tolerance, decreased ability to exhale air from the lungs, increased levels of mutagenicity, and so on.

But one can eat fast food in a responsible (i.e., moderate) manner, such that it does not cause any health damage. Fat is not inherently harmful. It is only when eaten in excessive quantities that it is unhealthy.

Third, while cigarettes are addictive and are "manipulated" by cigarette companies to be addictive, fast food is not. Cigarette companies have technology available to eliminate the nicotine from their cigarettes, but choose not to. In fact, there is evidence that they have used a number of additives, including ammonia, to make their products more addictive.

But fat and fast food are not addictive. There is nothing I am aware of that is put into the product by fast food companies to make it addictive. There is nothing forcing someone who eats one Big Mac to eat another one, or to eat a Big Mac for every meal.

Fourth, while I think a reasonable argument can be made that cigarette smokers should not be held completely responsible for the damaging effects of tobacco products, since they are most often addicted to the product at a young age when they could not have made an informed decision about using the product, there is no reasonable legal argument that can be made for why a fast food restaurant should be held responsible for individuals who eat its products in excess.

As someone who has testified in at least seven tobacco cases on behalf of smokers, I probably tend to lean more on the side of holding companies responsible for damages caused by their products than on the side of holding individuals responsible for their behavior. Yet even I think that it is absurd to claim that individuals do not bear the responsibility for their decisions about what type of food to eat. I think it is an extreme argument, and an unreasonable one, to suggest that fast food restaurants are legally responsible for the poor dietary choices of individuals.

Although the basic idea of trying to hold fast food companies and the food industry legally accountable for the obesity epidemic makes no sense to me, there are public health groups that are trying to pursue such an approach. For example, the Public Health Advocacy Institute states that: "Tobacco litigation focused on the tobacco industry's behaviors that interfered with the consumer's ability to make a free and informed choice. As in tobacco, there is a similar concern with the food industry."

Even more troubling is the claim that: "it is unclear if some foods with added sugars and fat are addictive." This is precisely the kind of argument that the tobacco industry has made, and with some success, as a defense to charges that its own products are addictive. In fact, in the Engle case, I had to counter the tobacco industry's claim that foods, including high-fat or high-sugar foods, are addictive and I testified that such claims do little more than distract the public from the truly addictive drugs, such as cigarettes.

Even the legal claims based on the contention that fast food companies deceived consumers into thinking that their products were nutritious or healthy do not seem compelling to me. A Big Mac, french fries, and a milk shake after all, are a great source of calories and for some individuals, it is indeed a nutritious meal. Obviously, on a population-based level it does contribute to obesity to have these types of food being marketed. But it is not clear to me that individuals out there are mistakingly thinking that eating at McDonalds is going to be better for their health than eating at Fresh Choice. I think it is going to be difficult to convince a judge or jury that there is deceptive marketing going on that rises to the level of violating consumer protection laws.

The rest of the story suggests that obesity-related litigation, especially that which is based on personal injury claims, is ungrounded, and that the pursuit of this type of litigation may actually be detracting from the quite reasonable claims that are being made against tobacco companies. There is a perception out there that money-hungry attorneys are simply jumping on the bandwagon to try to extract large damage awards. Unfortunately, my perspective on the issues involved in these cases offers little to counter this perception. A Big Mac is simply not a Marlboro.

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