TCS Daily

Fat Wallets

By Sandy Szwarc - October 10, 2003 12:00 AM

On a recent NBC news broadcast, John Banzhaf -- the lawyer behind big tobacco settlements and currently trailblazing litigation against food companies -- declared, "Five of these so-called fat lawsuits have already been won." He continued to claim five wins at a conference on obesity at Boston University on October 3rd.


But under oath, Banzhaf's testimony to the Congressional Subcommittee Hearing June 19, 2003 on the Personal Responsibility in Food Consumption Act HR 339 was considerably different from what he tells the public. He opposed the Act -- which would limit predatory, frivolous, class action lawsuits against the food industry holding them responsible for what people choose to eat -- saying: "It is premature because at this point none of these cases has ever gone to trial. There has never been a judgment, there has never been a verdict, and what we are talking about is a very wild possibility."


The Subcommittee called him on the contradictions between his testimony and the assertions made publicly and included in his prepared statements to the Subcommittee.


Mr. FLAKE: You know, if... fat lawsuits have been won, why do you say that none of these have gone to court?


Mr. BANZHAF: Because none of them went to court, sir.


Mr. FLAKE: How can they be won?


Mr. BANZHAF: In the first case, my law students put together a lawsuit against McDonald's, which McDonald's branded as frivolous, yet they wound up settling for $12 1 /2 million, most of which went to charity. Then they posted a public apology on their Website and corrected the misrepresentation. The second one involves a so-called diet food in New York, which recently settled to the tune of $3-4 million. The third one was the suit that someone mentioned earlier against Oreo Cookies for allegedly being in violation of California law for not disclosing that they contained trans fat and the dangers of trans fat. Once the company agreed to work to remove the transfat, that lawsuit was dismissed.


What Banzhaf failed to disclose, and continues to misrepresent to consumers, is that none of these so-called obesity lawsuits had anything to do with obesity or health problems at all. The first suit Banzhaf described actually involved a group of his vegetarian and Hindu students who -- required to sue someone to pass his course -- sued McDonalds over the natural beef flavoring in their french fries which they'd believed were cooked in 100 percent vegetable oil. It was settled out of court for $10 million with another $2.5 million going to the lawyers. The second suit concerned mislabeled nutritional information on a low-fat Pirate's Booty snack. And the third was a publicity stunt by San Francisco attorney Stephen Joseph, who dropped the suit  against Kraft once the Oreo-trans fat scare story had saturated the media.


Indeed, every lawsuit that's actually attempted to claim fast foods or "junk" foods are responsible for obesity or health problems has been thrown out of court. After an unsuccessful suit against McDonalds earlier this year, New York attorney Sam Hirsch tried again -- this time using child plaintiffs as Banzhaf and others had done with tobacco lawsuits. As Banzhaf has said, children ring more sympathetically with the jury and give cases more clout. "It's important for lawyers to pick cases easiest to argue," Banzhaf said at last friday's obesity conference. "I'd find a poor homeless fat kid if I could." But Judge Robert Sweet dismissed the second suit as well. It didn't have enough evidence to even allow it to go to trial. 


Even though these suits have been resounding defeats for Banzhaf, he's managed to keep his threats of litigation in the news and continues to contrive a sense of momentum in his favor. The cases included in his claim of 5 triumphs against obesity, he told conference attendees, are:


• a recent Florida case, which settled out of court recently, concerning a mislabeled ice cream product (everyone in the class action got coupons for more ice cream!); 


• and a Kentucky man given a 15 month prison sentence for mail fraud for repackaging and shipping baked goods with misleading nutrition labels.


Big Bucks


While Banzhaf told NBC viewers his lawsuits were doing something about a very serious health problem, it's difficult to believe that public health is his main concern rather than the big bucks he can earn through litigation. For example, Banzhaf's prime restaurant target is McDonalds, not because its food is the most fattening but because it has 43 percent of the fast food market. "McDonalds may not be responsible for the entire obesity epidemic," he told the Congressional Subcommittee, "but let's say they're 5 percent responsible. Five percent of $117 billion [a year] is still an enormous amount of money."  


Banzhaf often equates his "obesity" lawsuits with the $250 billion lawyers reaped from the tobacco lawsuits. At the Boston conference he said fast food suits were "a small part of our overall legal assault. I'm hoping to use the promise of huge benefits to get more private-practice lawyers to follow suit and states to follow... $100 million awards are inevitable, like tobacco." 


As Rep Ric Keller (R-FL) noted at the Subcommittee hearing, trial lawyers like Banzhaf "would stand to recover $47 billion for themselves in attorneys' fees. Of course, this litigation against the food industry would not make a single individual any skinnier. It would, however, make the trial attorneys' bank accounts much fatter." 


Banzhaf's suits have increased liability insurance for restaurants and food companies. Rates have risen as much as 35 percent over the past year and will likely increase even more as they defend against these fat suits, according to Zurich London. These costs will be passed on to consumers, along with the increased taxes, and regulatory and labeling costs Banzhaf and the food police advocate. Litigation "might seem crazy now," said Margo Wooten of the Center for Science in the Public Interest, "but they make it easy to get legislative changes [taxes and regulations] passed. Food companies would rather take their chances with Congress than a judge and jury." With the help of Banzhaf, her group hopes to make the products they don't think we should be eating so unaffordable we'll be forced to buy less of them and more of their sanctioned choices.


Consumer Voices


Despite the efforts of Banzhaf, Wooten and others, consumers repeatedly insist that they be free to make their own choices, and they're prepared to take responsibility for them.


In one telling anecdote, customers have flocked to a Seattle restaurant called the 5 Spot by the hundreds to voluntarily sign a waiver saying "I will not impose any sort of obesity-related lawsuit against 5 Spot or consider any similar type of frivolous legislation created by a hungry trial lawyer" before digging into a decadent dessert specially created by the owners to send a message to Banzhaf and other zealous trial lawyers. It was nicknamed simply "The Bulge" by restaurant owners Jeremy Hardy and Peter Levine. "Frivolous lawsuits are a waste of resources and even worse, continue to absolve people from personal accountability for their actions," said Hardy. Based on the overwhelming response of customers, "It looks like a lot of other people are fed up, too." 


Most Americans want to eat whatever they want and don't blame restaurants or food companies for their weight. Multiple polls, such as one from Gallup and another from the Research International Lightspeed, have found nearly 90 percent of Americans oppose fat suits and holding food producers or fast food restaurants responsible for the consequences of what they choose to eat. 


But that's not the story we get from Banzhaf. He's currently announcing: "New Survey Shows Most American (sic) Blame Fast Food Companies For Obesity" in press releases. To give the public the impression everyone's on board with him, he cites a recent ACNielsen poll which he claims found 60 percent of us think "fast food restaurants are a cause of the current epidemic of obesity, up from 41 percent in another survey just several months ago." 


The ACNielson poll actually looked just at childhood obesity and according to their press release found: "Two out of three U.S. households surveyed by ACNielsen said the parent or guardian was to blame for obesity in children 17 and under, with fast-food restaurants blamed by only 10 percent and food manufacturers named by only 1 percent" (emphasis added). Only when participants were allowed to check any and all factors that might also contribute to childhood obesity, was that 60 percent number reached, but even then its tally fell far behind others, such as parental responsibility. 


Banzhaf, a law professor at George Washington University, teaches torts and a legal activism clinic where he tutors students how to get publicity and saturate the press, as he did with Big Tobacco. His own website is filled with ready-to-print news stories for the media, complete with a selection of headlines, which are readily utilized. It's an effective strategy to put pressure on the opponent, draw allies, change the climate of public opinion, lend legitimacy to a cause, and taint potential juries with distorted information.  


Despite employing his Big Tobacco strategies, Banzhaf's not winning audiences this time as the guardian of public health. He was actually booed three times at the Boston conference. Jurors, too, are likely to see he just wants a bite out of their burger.

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