TCS Daily

Nutrition Irrelevant?

By Duane D. Freese - June 24, 2003 12:00 AM

Up on Capitol Hill on Thursday, a simple exchange between Rep. Marsha Blackburn, R-Tenn., and George Washington University law professor John Banzhaf provided a needed perspective about the "legal approach" to resolving the nation's so-called "obesity epidemic."

Banzhaf was a witness before a House judiciary subcommittee taking testimony on legislation -- the Personal Responsibility in Food Consumption Act -- that would limit legal action against restaurants for such things as obesity.

Banzhaf is a chief promoter of the view that "legal action (can) be a powerful weapon against the public health problem of obesity." Indeed, over the weekend, he was a speaker at a strategy session at Northeastern University in Boston, titled, with great expectations for the future, "The First Annual Conference on Legal Approaches to the Obesity Epidemic.

Banzhaf also testified to the committee that his legal approach to obesity already has won "three fat lawsuits" and was "poised to win two more."

Nevertheless, he told the committee that such legislation -- modeled after a law in Louisiana -- was premature because no obesity lawsuit had yet gone to trial, scolding it: "FOR SHAME. If it ain't broke don't fix it, especially until Congress is prepared to adopt comprehensive legislation to help save taxpayers more than $50 BILLION annually in obesity costs."

He then told the committee that obesity was not a matter of personal responsibility and that the fast food industry was a significant cause of obesity, condemning it at one point for "failure to clearly and conspicuously disclose nutritional information." He also encouraged legislation that would "require that all fast food restaurants provide more nutritious menu choices." [Emphasis mine]

Having lectured lawmakers, Banzhaf then answered questions, and that's when Blackburn presented hers.

She asked Banzhaf first about plans by trial lawyers to sue school boards for soda and snack vending machines, and whether that would deprive schools of money needed for physical education and nutrition programs. Weren't those important? And finally, she asked Banzhaf if he knew the four basic food groups in the nutritional pyramid and could describe their importance.

Banzhaf went on at length about school boards for not providing "low calorie" meals and delivering "sugar soft drinks" and "fat burgers" "They do it," he proclaimed, "because they are bribed to do it." They are "prostituting themselves" and thus should be held liable in court.

"Does that answer all your questions?" Banzhaf then smiled back at Blackburn.

"What about the nutrition pyramid and the importance of the four basic food groups?" Blackburn asked.

"I know what it is, but I don't see the relevance of the question," Banzhaf answered.

Blackburn's time, at that point, had expired. But not satisfactorily.

"An attorney charging food manufacturers and restaurants with serving up too little nutrition to American consumers was unable or unwilling to explain what constitutes a healthy diet," an unimpressed Blackburn said after the session.

"An attorney bringing suit against food manufacturers and restaurants for allegedly providing poor nutrition shouldn't be surprised when asked to explain what is considered a healthy diet," she went on. "These lawsuits appear to be based more on the potential for profit than science. Trial lawyers are abusing our legal system and misinforming the very public they claim to serve. Rather than rely on frivolous lawsuits, we should encourage research to prove what is healthy and what is not."

Victor Schwartz, former Dean of the University of Cincinnati Law School and co-author of Prosser, Wade & Schwartz's Torts, the most widely used torts casebook, in his testimony to the committee explained precisely why health issues such as obesity are matters for legislatures and regulatory bodies, not the courts.

"(A) judge does not hold hearings, as you have here today," Schwartz said. "He or she could not call witnesses on her own, nor could he or she obtain a broad public policy perspective about how food should be regulated. Also, new judge-created rules are retroactive, not prospective. One judge can subject an industry to massive liability exposure for what has been a socially accepted norm."

Schwartz recalled that Secretary of Labor Robert Reich dubbed such legal action as "regulation through litigation." Schwartz noted that Reich favored the approach at first, but later rejected it, writing, "These lawsuits are end runs around the democratic process."

Indeed, the open legislative process on Thursday provides a sharp contrast to the event up in Boston, where a Sunday workshop of the conference required participants to sign an affidavit that says in part: "I understand that the Legal Strategies Workshopp portion of the ... Conference ... (the 'Workshop') is intended to encourage and support litigation against the food industry and that information acquired at this Workshop is to be considered confidential in keeping with these interests."

Why do trial lawyers need to meet in secret? How is it responsible public policy-making for trial lawyers to "encourage and support litigation" without first giving full voice to industry, labor or health experts? This demonstrates that Banzhaf and the other lawyers aren't intent on using the law to pursue a real health policy but to merely to extort money from another business.

As Christianne Ricchi, owner of the restaurant i Ricchi Ristorante in Washington, DC and board member of the National Restaurant Association, noted, the trial lawyers assault couldn't come at a worse time for an industry that employs 11.7 million people nationwide.

"Since Sept. 11, my business and many others in the urban/fine-dining category have seen a dramatic decline in business," she testified. "While I am confident we will overcome all of these obstacles, the prospect of dealing with the legal fees alone from a potential lawsuit causes me grave concern for the future of my business, my employees and our industry as a whole. ... The thought that someone can file a lawsuit based in part on a choice they have made regarding where to dine and what to eat is disturbing. Perhaps no other industry offers a greater variety of choices to consumers than restaurants.

She went on: " To solely target the restaurant industry is overly simplistic, and that is clearly underscored by the fact that 76 percent of meals are eaten at home. ... Healthful eating patterns are not created or destroyed by one meal or one food. It is the overall pattern of good intake and choices over time that are important to a healthy lifestyle; especially when balance and moderation are complemented by physical activity and personal responsibility."

But as Banzhaf's testimony made clear, he and the trial lawyers don't see the relevance to matters such as choice, personal responsibility and nutrition." What is important is to - as Banzhaf's license plate proclaims - "Sue Bas" for "Sue the Bastards."

Faced with that attitude by lawyers, a preemptive strike by Congress against extortion expeditions makes perfect legal and health sense.

As Schwartz testified: "The issue is whether Congress should take proactive measures to prevent individual state courts from engaging in 'regulation through litigation' in the area of food, and holding a seller and manufacturer or a distributor of a food product that complies with all health and safety regulations, and is not defective, liable for obesity or other health hazards."

Legislation at this point, he concluded, "would not have to change existing law. What it would do is solidify existing law and draw a line where experience and practical wisdom have suggested it should be drawn."

Obesity is a health issue, and not a simple one. If trial lawyers are going to charge into it without demonstrating a thorough grounding in the basics about it, then Congress needs to step in to prevent their legal and medical malpractice.

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