First tobacco, now fat

Bruce Bartlett
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Posted: Sep 23, 2003 12:00 AM

In Seattle, there is a popular restaurant called the 5 Spot. Its signature dish is a huge, calorie-laden dessert called The Bulge. Access to it, however, is restricted to those patrons willing to sign a waiver agreeing not to sue the restaurant for making them fat.

Although obviously a marketing gimmick, the underlying issue is no joke. Greedy lawyers (pardon the redundancy) have been working steadily on a campaign to make restaurants and food manufacturers legally liable for the spread of obesity. Sadly, they are making progress.

In June, the Public Health Advocacy Institute in Boston held a conference on legal approaches to the obesity epidemic. More than 100 lawyers and "consumer advocates" (i.e., left-wing busybodies) heard from prominent veterans of tobacco lawsuits on how to duplicate their success. The goal of the attendees is to make themselves multimillionaires while pretending that their motive is a high-minded concern for public health. It would be laughable if it hadn't already worked so well with the tobacco companies, which not coincidentally, also own many food operations.

Unfortunately, the tobacco companies seem to have learned nothing from their experience with anti-smoking zealots and are actually opening the door to lawsuits against their food divisions. They don't seem to understand that their enemies are not driven by genuine concerns about health or even by greed, but by ideology. They bring a religious fervor to their efforts that combine a Marxist hatred of capitalism with extraordinary naivete about human nature, mixed together with a tort liability system that is eager to award large damages based on the flimsiest of evidence.

Nevertheless, Kraft Foods, a division of Altria Group (formerly known as tobacco giant Philip Morris), thinks it can buy off its prosecutors by cutting portion sizes, reducing fat and sugar in its products, and scaling back marketing to children. These may all be worthwhile things to do, but to its enemies it is virtually an admission of guilt. Just as warning labels on cigarettes proved to be no defense against tobacco lawsuits, neither will Kraft's pre-emptive capitulation. It will only embolden its enemies and provide new lines of legal attack.

The trick that the lawyers play is to start with very reasonable-sounding demands, such as better and clearer nutritional labeling. Then, when labeling is agreed to, they will pick it apart and make deceptive advertising the basis for litigation. John Banzhaf, a leader in litigation against food and tobacco companies, signaled this strategy shortly after the Kraft announcement, saying that it was improperly using adult nutrition guidelines for children's food. And should Kraft put forward guidelines just for children, Banzhaf will no doubt find new problems with them and also demand separate guidelines for women, the elderly, blacks, gays and any other group in society that would make a sympathetic plaintiff.

The lawyers are also pursuing other avenues of litigation that parallel those used against tobacco companies. For example, they heavily promote studies showing that the negative health effects of obesity are equal to those for smoking, and others claiming that fat and sugar are as addictive as nicotine. It doesn't matter how dubious this research is. The lawyers know from experience that they can easily bamboozle uninformed and undereducated jurors with it, and that timid judges seldom throw out even the shabbiest "scientific studies."

The big problem for the lawyers is that most people don't blame anyone except themselves for being overweight, according to a Wirthlin poll in May. A Gallup poll in July found 89 percent of Americans opposed holding fast food restaurants legally liable for diet-related health problems.

Overcoming such resistance will be hard and take time. That is why a public relations campaign is an essential part of the lawyers' legal strategy. This is being waged through a rash of new books blaming the food industry -- and only the food industry -- for all the woes associated with obesity. These include Marion Nestle's "Food Politics" and Greg Critser's "Fat Land." The latest is "Food Fight" by Yale professor Kelly Brownell, one of the first to call for new taxes on fattening foods to discourage their consumption.

At the same time, the lawyers will explore other potential avenues for litigation. Schools are one target, because they serve fattening food in their cafeterias and often provide vending machines with high calorie sodas and candy. Suburban sprawl has also been fingered as a cause of obesity, because it forces people to drive rather than walk to their destinations. This opens up the possibility of litigation against local governments over zoning. There is even the possibility of suing pet food manufacturers for making our cats and dogs fat. Lest you laugh, the prestigious National Research Council recently issued a 450-page report on pet obesity.

Congress should put a stop to this before it goes any further.