Pierce Hollingsworth

The growing public debate over obesity—and who is to blame—is shaping up to be highly visible, very expensive, and rancorous. It may even be a watershed, or Waterloo, for trial lawyers and their propensity for massive actions against massive problems by creating massive villains and charging massive fees. And while it will cost a fortune, the whole process probably will do little to shrink America’s waistline.

Extreme? Not when you consider the confluence of forces rapidly coalescing around the issue. In April, this column pointed out that trial lawyers, who pocketed some $10 billion of the estimated $246 billion in judgments from their war on big tobacco, now have big food in their crosshairs and the first step in the process is to whip up public awareness. This month, a summit of sorts is being billed as the “First Annual Conference on Legal Approaches to the Obesity Epidemic.” Led by veteran trial lawyers John Banzhaf, who has a Web site dedicated to the issue, and Richard Daynard, the Boston conference is designed to frame regulatory, legislative, and legal action.

It comes amid a steadily rising tide of media coverage. For instance, Fortune magazine devoted its January 21 cover to the headline, “Is Fat the Next Tobacco?” The writers concluded, “Prudent food companies might do well to start scrutinizing their advertising and packaging, tweaking product lines, and, yes, squirreling away some reserves for potential judgments.” In other words, once the trial lawyers take aim, it’s all but over. Or is it?

At present, the growing consortium of legal crusaders is following a predictable game plan. At its core, it has more to do with winning judgments than curbing obesity. The basic components consist of the following elements:
Create a villain. Of greatest concern is the alarming number of obese children contracting Type II diabetes. Kids also play well in the courtroom. Fast food contains relatively high levels of fat, and most restaurants market heavily to children and their parents. This is an important connection for trial lawyers in the growing publicity campaign.

Establish the economic cost. It’s a big number—$117 billion—widely circulated in media reports. For its part, the National Bureau of Economic Statistics claims that obesity “imposes” a $50-billion-a-year cost on taxpayers, most of which is attributable to fast food, which accounts for 68% of the rise in American obesity. Figures like these become statistical bedrock, virtually immune to criticism. Ironically, you can profile any demographic slice of the U.S. population and determine how much it “costs.”

Promote any supporting medical research. “Numerous scientific studies show 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,” Banzhaf asserts. Thus, the connection between hamburgers and heroin has been drawn, though the sources are sketchy.

Advance the concept of industry malice and deception. McDonald’s recently settled a suit for $10 million in which the company was charged with deceptive marketing of its fries. While McDonald’s correctly claimed that its fries were cooked in 100% vegetable oil, it did not reveal that they were pre-processed using animal fat. The incident is a leverage point to assert that this type of “deceptive practice” is just the tip of the iceberg.

All these time-tested elements and a bona fide health problem in obesity make for a fast track. But this isn’t tobacco. Food choices are vast. Moreover, is fat really the problem? In the early 1970s, 40% of calories consumed were from fat. Today, it’s about 34%. Perhaps carbohydrates are more to blame for America’s obesity problem, or not food at all. A sedentary lifestyle rooted in labor-saving devices, and 24/7 home entertainment may be as much to blame. Are those industries next in line for litigation? Or is it a matter of personal responsibility?

Obesity is a complex public health problem, without a single smoking gun. However, it’s entirely possible that the emerging axis of trial lawyers, sympathetic judges, compliant juries, and state attorneys general will successfully prosecute “big food.” This could lead to major judgments against the industry, regulation of ingredients, higher prices, and so-called “fat taxes” for certain foods. Obese Americans may also pay more in health insurance. But this very success may ultimately create a consumer revolt hot enough to fuel tort reform, and an end to the era of big suits.

Contributing Editor
President, The Hollingsworth Group, Inc.
Wheaton, Ill.