Journal of Controversial Medical Claims 10.4 (Nov 2003): p1(10). (7875 words) Show details
Full Text :
COPYRIGHT 2003 Aspen Publishers, Inc.
Address correspondence to:
Todd G. Buchholz
U.S. Chamber Institute for Legal Reform
1615 H Street, NW
Washington, DC 20062-2000
Phone 202-463-5724; Fax: 202-463-5302
Americans have gained weight over the course of the last century. This increase stems from a variety of factors, primarily more consumption of calories and less vigorous activity. From a historical perspective, a rising caloric intake was a positive event for the first half of the twentieth century. Though the fast-food industry has proliferated since the 1960s, there is little conclusive evidence that it is a primary cause of obesity. Further, this study finds that fast food has worked as a force to lower the cost of protein for consumers at all income levels. Lawsuits against fast-food companies miss the mark from a nutritional, economic, and legal perspective; they ignore the fundamental issue of personal choice and responsibility. THE SCENE
The overweight baseball fan jumps to his feet in the bleachers of Wrigley Field, screaming for the Chicago Cubs to hold onto their 3-2 lead in the bottom of the ninth inning. He squeezes a Cubs pennant in his left hand while shoving a mustard-smeared hot dog into his mouth with the right. The Dodgers have a runner on first who is sneaking a big lead off the base. The Cubs' pitcher has thrown three balls and two strikes to the batter, a notorious power hitter. The obese fan holds his breath, while the pitcher winds up and fires a blazing fastball. "Crack!" The ball flies over the fan's head into the bleachers for a game-winning home run. The fan slumps to his bleacher seat and has a heart attack. Who should the fan sue?
(a) The Cubs for breaking his heart?
(b) The hot dog company for making a fatty food?
(c) The hot dog vendor for selling him a fatty food?
(d) All of the above?
A few years ago these questions might have seemed preposterous. But now scenes better suited for the absurd stories of Kafka snake their way into serious courtroom encounters. While no federal court has yet heard a case on behalf of sulking baseball fans, just a few months ago, the US District Court for the Southern District of New York responded to a complaint filed against McDonald's by a class of obese customers, alleging among other things that the company acted negligently in selling foods that were high in cholesterol, fat, salt, and sugar. (1) In the past ten years, we have seen an outburst of class action lawsuits that alleged harm to buyers. With classes numbering in the thousands, these suits may bring great riches to tort lawyers, even if they provide little relief to the plaintiffs. The sheer size of the claims and the number of claimants often intimidate defending firms, which fear that their reputations will be tarnished in the media and their stock prices will be punished--not because of the merits of the case but from the ensuing publicity. In his opinion in the McDonald's case, Judge Robert W. Sweet suggested that the McDonald's suit could "spawn thousands of similar 'McLawsuits' against restaurants." Sure enough, a few days ago, hungry lawyers gathered in Boston to plot their strategy for future obesity litigation, convening panels with titles such as "Food Marketing and Supersized Americans." (2) Recent books with titles such as Fat Land and Fast Food Nation promote the view that fast-food firms are harming our health and turning us into a people who are forced to shop in the "big and tall" section of the clothing stores. (3) The Wall Street Journal recently reported that "big and tall" has become a $6 billion business in menswear, "representing more than a 10 percent share of the total men's market. (4) While it may be easy for critics to accuse fast-food restaurants of serving fattening foods,...