TCS Daily

A Pot Belly of Gold

By James K. Glassman - March 7, 2003 12:00 AM

Two years ago, journalists - hot for a story - began calling John Banzhaf, the telegenic George Washington University law professor who led the anti-smoking legal crusade from its early stages. "Would tobacco-style lawsuits," he was asked, "now be aimed at food processors and restaurants?"

"Well, no," Banzhaf later recalled he said. "There are important differences."

There sure are. But that hasn't stopped America's voracious plaintiffs' bar. The lawsuits began last year. The most prominent was filed in New York by several obese children, including Jazlyn Bradley, who weighs 270 pounds, and Ashley Pelman, who is 14 years old, 4 feet 10 inches tall and weighs 170 pounds.

"Between the ages of five and twelve I used to go to McDonalds approximately 3-4 times a week," Ashley wrote in her affidavit. "I normally order the Happy Meal or sometimes a Big Mac." Jazlyn had more diverse tastes, attesting that she "would regularly order either breakfast, the No. 1 Big Mac meal, the No. 2 meal, chicken nuggets or the fish sandwich." Also, desserts, "including the apple pie."

Poor kids! I have real sympathy for them - and not because they eat burgers and fries, which Americans (me, included) were consuming long before McDonald's was a twinkle in the eye of a management genius named Ray Kroc. Jazlyn and Ashley apparently were never taught that if you overeat and fail to exercise regularly, you can get disgustingly and unhealthily fat. If they have a legal case against anyone, it's their parents. (Jazlyn's father, Israel Bradley, admits to a ritual of eating a pound of french fries a week.)

In January, Judge Robert Sweet threw out the children's suit. "Nobody is forced to eat at McDonald's," he wrote. "As long as a consumer exercises free choice with appropriate knowledge, liability for negligence will not attach to a manufacturer." As for knowledge, Sweet accepted the defense that everyone understands that if you eat too much fatty, salty, sugary food, you can endanger your health.

But Judge Sweet invited the plaintiffs to try their suit again, offering what the Financial Times called "detailed guidance" for making it more effective. While Sweet agreed that consumers should be expected to know that hamburgers and fried chicken can make you fat, he suggested that restaurants like McDonald's put stuff into their dishes that turns them into something different and more dangerous from what people expect.

"It is at least a question of fact as to whether a reasonable consumer would know - without recourse to McDonald's website - that a Chicken McNuggets contained so many ingredients other than chicken and provided twice the fat of a hamburger," wrote the helpful judge. As a further hint, Sweet called Chicken McNuggets a "McFrankenstein creation."

The lawyer, Samuel Hirsch, filed a new version of the suit on Feb. 19, and it is a travesty. Physicians and scientists at the American Council on Science and Health (ACSH), a distinguished organization that has vigorously crusaded against such true health hazards as smoking, called it "without scientific merit."

The suit attacks McDonald's food for containing preservatives and other "chemicals." But, as Elizabeth Whelan, the president of the Council, said, "All foods are chemicals.... Potatoes, for example, naturally contain over 150 chemicals, including traces of arsenic and solanine - chemicals that are safe in low doses but harmful at high ones."

McDonald's, in fact, has a stellar history of food safety and disclosure. You can go to the company's website and get detailed nutritional information, including fat content, fiber, protein, sodium calories and specific ingredients for every menu item. Preservatives, many of them mandated by law, are there to preserve - to make food safe.

A press release on the website of the ACSH states: "The lawsuit also claims that McDonald's literature misrepresented their foods as being 'healthy.' But in reality it is possible to obtain a varied, balanced and calorically appropriate diet by eating McDonald's foods in moderation - there is nothing intrinsically unhealthy about it."

The Council's nutrition director, Dr. Ruth Kava, said, "It is an excess of calories consumed relative to calories expended that causes weight gain. Consumers are often told that certain types of foods are 'fattening' and others are not. The truth is that, eaten to excess, any food can contribute to overweight and obesity, whether that food is considered a good source of nutrients or not."

Blaming a specific kind of food for obesity is rank nonsense. As my colleague, Duane Freese, pointed out recently, according to the "Weight-Watcher's Complete Home Companion," a serving of one cup of General Tso's Chicken, a popular item on the menus of Chinese restaurants, has more than twice as many calories than a serving of a half-dozen Chicken McNuggets.

Experts peg the average healthy caloric intake between 2,350 and 2,600 per day. A meal of a Big Mac, small fries and Diet Coke comprises 800 calories and less than half the daily suggested allowance of fat. Change to medium fries and a regular Coke, and the total is 1,250 calories. With a light breakfast and a typical dinner at home, you can still be well under the suggested daily limit.

An article in the Wall Street Journal recently noted that "healthful-sounding" food items are high in calories. For example, a chicken Caesar wrap at Au Bon Pain contains 640 calories and 26 grams of fat, ensalada chicken (i.e., chicken salad) at Baja Fresh has 857 calories at 57 grams of fat, and a chicken Teriyaki wrap at Fresh City has 968 calories and 33 grams of fat. By comparison, a Big Mac has 590 calories and 34 grams of fat; six Chicken McNuggets with honey mustard sauce has 360 calories and 37 grams of fat.

In an article in the San Francisco Daily Journal last year, Banzhaf explained some of the "very important differences between the problems of smoking and obesity." The first is that "the argument that nicotine is addictive, and thus that smokers are not fully responsible for their actions, has no counterpart with food. Foods are not harmful when used in moderation, whereas cigarettes are."


In fact, the lawsuits actually encourage obesity by letting individuals duck responsibility for their own actions. All of us have the ability eat in moderation - and most of us, especially children, can exercise. But when lawyers promote the false notion that we can get "hooked" on food, they provide young people, especially, with a convenient excuse: It's not my fault! They enticed me into eating those cheeseburgers! As Dr. Kava says, "Suits such as this are counterproductive."

What next? A lawsuit against television networks for providing such entertaining afternoon fare that teenagers sit at home glued to the set rather than going outside for exercise?

According to the U.S. Surgeon General, "43 percent of adolescents watch more than 2 hours of television each day" and "only one state in the country - Illinois - requires physical education for grades K-12, while only about one in four teenagers nationwide take part in some form of physical education."

The problem of obesity is a real one, and new research shows that its roots are cultural, social and economic.

For example, a working paper recently published by the prestigious National Bureau of Economic Research in Cambridge, Mass., observes that, on a per capita basis, the number of fast-food restaurants doubled in the U.S. between 1972 and 1997 while full-service restaurants increased by 35 percent. The authors - Shin-Yi Chou, Henry Saffer and Michael Grossman - find a large part of the explanation in "labor market developments since 1970 and in attendant matters of income and costs, in the proliferation of women in the workforce, and in the value of time in regard to both work and leisure."

The authors conclude that analysts should not "ignore the demand for the [fast-food] restaurant option.... With more household time going to market work, correspondingly less time and energy are available for such home activities such as food preparation." Decreases or modest increases in income "experienced by some sectors appear to have stimulated the demand for inexpensive and convenient prepared meals," of the sort available at restaurants like McDonald's.

At the same time, write the authors, "reduced time available for active leisure has reduced the burning of calories."

They cite another intriguing factor in the rise of overweight Americans: the reduction in smoking. "Ex-smokers typically gain weight," they write." They see evidence that "the upward trend in obesity is at least partly attributable to the anti-smoking campaign."

Another social explanation for obesity is offered by a paper funded by the U.S. Department of Health and Human Services and published earlier this year by the Joint Center for Poverty . The study looked at data from 10,000 children to find out whether there was a connection between mothers' working outside the home and overweight kids. The authors found "robust evidence of a positive and significant impact of maternal work on the probably that the child is overweight."

In an article in the current issue of Policy Review, Mary Eberstadt, a research fellow at the Hoover Institution at Stanford University, wrote, " as firmly established in the fat literature as the fact that television watching and overweight children go hand in hand. The more television a child watches, the more likely he is to get fat." In a list of nine strategies set in 2000 to fight obesity, Surgeon General David Satcher listed, "Reduce time spent watching television and other sedentary behaviors." (By the way, none of the strategies involved advocating fewer trips to fast-food restaurants. After all, McDonald's offers such dishes as grilled chicken Caesar Salad with fat-free herb vinaigrette dressing: a total of 135 calories. The diner makes the choice.)

Eberstadt cites studies that connect increased TV watching to the absence of a parent in the home after school. She says that the decline in childhood exercise has similar roots and adds that another cultural encouragement to overweight is the lack of breast feeding. "Studies," says the Surgeon General's office, "indicate breast-fed infants may be less likely to become overweight as they grow older."

Even Banzhaf, who tends to see a chance for a novel class-action lawsuit around every corner, admits that the case against restaurants as the cause of obesity is a real stretch. The reasons that Americans are getting heavier are complex and have nothing to do with the availability of hamburgers and fried chicken - staples for decades. They are rooted, instead, in lack of exercise and parental supervision. One solution, advocated by the Surgeon General and many others, is simply to encourage - or require - all school systems provide mandatory, high-quality physical education for all grades. Currently, only one in four teenagers nationwide take part in phys ed.

Childhood obesity has little to do with America's own eating habits. Eberstadt cites a report in Italy's Bollettino Epidemiologio Nazionale: "Neapolitan children [that is, kids in the Naples region] were more at risk of obesity than were children from France, Holland, and the United States" while in the province of Benevento, "the prevalence of overweight and obesity was greater...than in England, Scotland and the United States." In Australia, a 2000 study found that children were twice as likely to be defined as overweight as in 1985. In France, obesity among 10-year-olds is a problem of "epidemic proportions."

What is American about obesity, however, is that plaintiffs' attorneys see this national problem as a pot of gold.

In their attempts to cash in, the lawyers threaten to load new costs onto consumers who have benefited from the remarkable rise in inexpensive and convenient restaurant foods. And, by discouraging personal responsibility, the lawyers encourage obesity.

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