TCS Daily

'A More Militant Way'

By Roger Bate - March 13, 2003 12:00 AM

Less than a month after round one of the Pelman v McDonald's "aren't-cheeseburgers-really-carrot-sticks" lawsuit was thrown out of court, the trial lawyers have re-filed. This food fight is set to drag on for many more rounds. At the heart of the trial lawyers case is the notion that McDonald's has misled consumers to believe that its products are healthier than they are. But the real case is about whether trial lawyers have a new industry to milk, and one with far deeper pockets than even big tobacco.

In 1997 the tobacco industry began its rapid capitulation. States were beginning the settlements that would earn them tens of billions of dollars of tobacco money to cover Medicaid costs. The States' lawyers were about to get their billion-dollar cut. Like all good businessmen, the trial lawyers, led by George Washington University Professor John Banzhaf, were looking for new clients and cases.

At the time, the World Health Organization was campaigning about tobacco and alcohol, but the trail lawyers claimed that tobacco was uniquely bad and that other industries, even alcohol, would not be targeted. "We recognize that although alcohol is an addictive drug it is addictive only to a relatively small percentage of the population, whereas in contrast nicotine is an addictive drug which is addictive to most of the population," said Banzhaf in 1997.

Former trial lawyer Victor Schwartz, now head of the American Tort Reform Association said the lawyers "wanted to isolate the tobacco industry from the rest of the business community, so the rest of the business community would not worry that precedents used against tobacco would ever be used against them, particularly the alliance between the plaintiff's lawyers and the attorney generals." The strategy worked and big tobacco capitulated.

Of all the future cash cows the trial lawyers could go after, big food was the best, and McDonald's is the largest player in a target-rich environment. Former U.S. Surgeon General, David Satcher reported two years ago that obesity was "an epidemic" costing $117 billion in health care costs and lost wages and killing 300,000 Americans a year. These numbers are highly debatable, and the prestigious New England Journal of Medicine said they were "derived from weak or incomplete data."

Even former Presidential nominee Ralph Nader jumped on the bandwagon and cried that McDonald's Cheeseburgers are a weapon of mass destruction. Kelly Brownwell, director of Yale University's Center for Eating and Weight Disorders, told the Boston Herald, "There is no difference between Ronald McDonald and Joe Camel....We need to start thinking about this in a more militant way." Banzhaf and colleagues became interested in action and started to prepare briefs. Banzhaf's response to the apparent about face was "Obviously no legal precedent [over tobacco] lives in a complete vacuum."

And so the litigation over big food began. The original case claimed that McDonald's food had made Ashley Pelman, age 14 and weighing 170 lbs, and Jazlyn Bradley, age 19 and 270 lbs., obese. The trial was ridiculed in the press, but it was thrown out not because the Judge, Robert Sweet, thought it frivolous, but because it was too broad. Judge Sweet provided the plaintiffs with the direction he might consider in any future trial - did any of McDonald's products pose a health risk beyond what any ordinary consumer would be expected to know?

The Pelman's lawyer, Samuel Hirsch, filed the new case on February 17th and followed the advice of the judge. The lawyer claims that items like Chicken McNuggets have very high fat content and that McDonald's is deceptively marketing their products to hook would-be consumers on tasty high fat meals. The evidence given says that people are getting fatter and they eat more 'junk food' than before.

But Americans are fatter because they eat far more of all foods than they have in the past. The Financial Times reports that a standard McDonald's meal 50 years ago provided 590 calories, whereas today it provides 1,550. But that is more a reflection of people's desires, not dietary manipulation by McDonald's. We are addicted physiologically to food - staples such as carbohydrates, fat and protein are essential to living, so the case that McDonald's is addicting young people uniquely to its products is implausible. But the trial lawyers are masterful manipulators of language, so it's far from impossible.

Any fat suit faces two other significant hurdles. The public does not perceive the food industry in a bad light. It is not demonised like tobacco was in the 1980s, so juries are likely to oppose the trial lawyers. Moms and dads are thankful for a quick and easy meal their kids will eat at the end of a hectic day. The other, more substantive point is the need to show causation between a restaurant and obesity. Most cigarette smokers were loyal to one brand, so actions against a manufacturer were easier to quantify. Most obese people eat all sorts of fast food and other dietary supplements, so tying blame down to one place, such as McDonalds, will be difficult.

But there are ways to get around the causation arguments. The simplest is to argue that a company has a market share and the judge should allocate a proportional amount of blame and costs to that company.

It must be hoped that Judge Sweet throws this case out, along with the last, but history is on the side of the trial lawyers. Tobacco was isolated and lost. If big food's plight is ignored by executives within the pharmaceutical, energy, transport, electronics, manufacturing and other sectors, ask not for whom the bells...or the trial lawyers...toll.

The author is International Policy Network Fellow and a TCS columnist.

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