Lawyers See Fat Payoffs in Junk Food Lawsuits

Put down that pizza! Toss out that cookie dough! And banish those burgers and root beers.

That is, unless you want to join the millions of Americans who are potential plaintiffs in an increasingly less hypothetical lawsuit that could change the way the U.S. eats.

Now that Surgeon General David Satcher has declared obesity America's soon-to-be-number one killer, class-action lawyers and others may be eyeing legal action against everyone from fast-food chains to the nation's leading snack food companies.

Some see precedent for such action in the slew of lawsuits that have been successfully brought against the nation's cigarette makers.

"As we're getting more and more figures saying just how dangerous obesity is, people are wondering if tactics used against the tobacco industry very successfully and other problems such as guns less successfully could be used against the problem of obesity," said John Banzhaf, a professor at George Washington University Law School.

But others say that taking fast-food and candy companies to court for selling – surprise – fast food and candy is going too far.

"This could be a case where good intentions have a perverse outcome," Hudson Institute fellow and government-regulation specialist Michael Horowitz said. "It's important to preserve notions of individual accountability and responsibility."

And Walter Olson, a Manhattan Institute fellow specializing in legal-system issues, said that if a class-action lawsuit against Big Food were to be successful, Americans might not like the consequences.

"A quarter of people smoke, but most of the population eats things that are not good for us," he said. "They will act seriously if we try to take away their M & Ms and Slushies."

The idea has nonetheless gained more currency after Satcher's December 2001 "call to action," in which he said being overweight or obese would soon be responsible for more preventable disease and death than cigarette smoking.

Satcher called on Americans to give people healthier food and exercise options at school and at work, watch less TV, change the way they think about obesity and do more research on the causes for and prevention of being overweight.

"People tend to think of overweight and obesity as strictly a personal matter, but there is much that communities can and should do to address these problems," Satcher said in a press release.

And it's not just a matter for the fatter to worry about, he said. He blamed obesity and being overweight for taking part in 300,000 American deaths a year and for costing the U.S. a total of $117 billion in 2000. As of 1999, some 61 percent of U.S. adults are overweight, along with a side dish of 13 percent of children and adolescents, he said.

Now people like New York University nutrition and food sciences professor Marion Nestle are saying it might be time to follow the lead of the legal tactics that smoked out Big Tobacco.

"These companies can't behave like cigarette companies," said Nestle, author of the soon-to-be-published Food Politics: How the Food Industry Influences Nutrition and Health. "(Yet) there's lot of people who benefit from people being fat and sick, and the whole setup is designed to make people eat more. … So the response to the food industry should be very similar to what happened with the tobacco companies.

"You're asking people to control what they eat when the food industry spends $30 billion and more on marketing designed to make them eat more," Nestle said.

Banzhaf, a public-interest lawyer, argued it was less about the people who are obese than the rest of society, which has to bear the burden of the overweight in the form of healthcare costs, lost revenue and other indirect costs.

"Where we have a problem which imposes a huge cost on society by a relatively small number of people, it's appropriate that that cost shouldn't be borne by everybody but confined to those who use the products or produce them," he said. "Of that $115 billion, a lot is borne by people who aren't obese. Why should I be forced to subsidize other people's bad habits?"

Banzhaf said a suitable way to shift the weight of responsibility back onto the appropriately plump shoulders would be through class-action lawsuits, which would penalize the companies who make and market sugary nothings and, in the form of higher price tags on hot dogs and gooey confections, discourage people with eating problems from overindulging.