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It is still a little unclear as to which metaphor is best suited to describe the food industry's role in what is currently being billed as our national obesity epidemic. Should we liken it to the "chicken-or-the-egg" debate and argue the finer points of which came first, the food manufacturer's right to manufacture or the consumer's right for protection? Or should we tread lightly -- or not at all -- for fear of triggering a virtual -- or real -- explosion in what has become a minefield of hotly contested ground? To date, 10 lawsuits have been filed against food companies or restaurants alleging that they caused plaintiffs' obesity problems. Five suits have been successful. In an effort to halt more lawsuits, the U.S. House of Representatives and scores of state assemblies have passed legislation -- humorously dubbed "Cheeseburger Bills" -- to help stem the tide of what could possibly be a river of blood. The outcome of this battle is blurry, even to the best-informed prognosticator, since only recently have food manufacturers fortified their redoubts and plaintiffs' attorneys sharpened their swords. Warfare analogies aside, the question that really deserves a calm, patient answer is whether or not legislation is the best way to ameliorate what is essentially a public health crisis. Is such a personal, and essential, decision like food consumption (or the freedom to consume) something that should be legislated? Historical precedentFor those not up to speed on this issue, the current lawsuits surrounding the obesity epidemic have a precedent in the legal war waged against tobacco companies. Throughout the 1990s, a relentless onslaught against Big Tobacco forced tobacco companies to disclose reams of incriminating information that aided lawyers in forcing conglomerates to dole out significant sums in retributions and to form antismoking foundations that discourage tobacco use (e.g., The American Legacy Foundation, Washington, D.C.). Since Big Tobacco was left to nurse its wounds, those involved with public-interest law began searching for a new windmill at which to tilt. Triggered by the Surgeon General's 2001 report estimating that, in 2000, obesity-related conditions killed about 300,000 people and cost the American economy about $117 billion, a new windmill appeared. The selection of obesity as the "new tobacco" was only fortified by a 2004 report posted by the Atlanta-based Centers for Disease Control and Prevention (CDC) upping the 2000 obesity-related death figure to 400,000, only 35,000 deaths behind the No. 1 killer in America: smoking. The plaintiff's bar started their charge in 2002 when an obese man, who had numerous health problems and had been regularly eating fast food since the 1950s, filed a suit against the industry in general -- McDonald's Corporation, Oak Brook, IL; Burger King Corporation, Miami; Wendy's International, Dublin, OH; and KFC Corporation, Louisville, KY, were all cited in the case. However, the case faltered and eventually faded into obscurity. Then, in 2003, the plaintiff's bar fired its first significant volley against the food industry when a case was brought against McDonald's, alleging that its food was the cause of the weight problems of three New York teenagers. The fact that the plaintiffs were minors was no accident as it was the lawyer's intent to suggest that since a large portion of fast-food advertising is geared toward unsuspecting adolescents, fast-food companies should pay for their predatory tactics. While this suit was dismissed, it did provide a roadmap for subsequent suits. Granted, this case was geared toward the fast-food industry and not food manufacturers. However, it still gave food manufacturers pause, especially since a few months after the McDonald's suit was tossed, a suit was threatened and then dropped against Kraft Foods, Northfield, IL, concerning the trans fat content of Oreo cookies. As Scott Riehl, vice president of governmental affairs for the National Food Processors Association (NFPA), Washington, D.C., notes, "While the food-processing industry is not the lowest fruit hanging on the tree, we're still fruit on the tree, and if (lawyers) are going to sue the fast-food industry, it would be very foolish of us to think when they're done suing the fast-food industry that they're not going to look up the tree." Is legislation inevitable?The answer to the question of whether or not legislation is the best way to deal with our national obesity problem is largely academic. Hours could be spent building castles in the sky, but the truth is that if large sums of money are at stake (they are), litigation will continue. If something isn't put in place to stop the litigation -- i.e., legislation -- the country will never be forced to deal with the problem on its own, personal terms. So the question is, really, what legislation is best suited to the cause? Should the legislation ostensibly act to protect the food manufacturer or the consumer? Both sides openly admit that the current legislation being drafted nationally and intrastate is narrow. In a sense, this is good news for all concerned. In the case of the food manufacturer, it sets the stage to let existing laws, such as good manufacturing practices and truth-in-labeling laws, stand on their own. For the public-interest lawyers, it provides an avenue by which they can target aspects of the food industry (fast food or otherwise) that aren't beneficial to building a strong and healthy nation, namely the targeting of minors by food companies to entice them to eat too much fattening food. In reference to H.R. 339, the "Personal Responsibility in Food Consumption Act," Riehl noted that, "exemptions in the model legislation exist to protect legitimate causes of action in their ability to move forward. And what we consider to be legitimate causes of action are if a product is adulterated in any way and if there's been a material violation of any state or federal statute in producing a product. Those in the industry wanted to make sure that those were carved out so that we were going before the legislators around the country with clean hands and we're saying, 'Look, very clearly we only want protection from these frivolous lawsuits, and we want to make sure that the legitimate causes of action are preserved.'"
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Legislating Obesity
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