Thick lawyers and thickburgers

Posted: Dec 08, 2004 12:00 AM

Hungry? If you grab a new Hardee's Monster Thickburger, you won't be. The burger, which is 2.5 inches thick, packs 1,420 calories and 107 grams of fat. It contains two 1/3-pound slabs of all-Angus beef, four strips of bacon, three slices of cheese and mayonnaise on a buttered sesame-seed bun. Jay Leno joked that the burger "actually comes in a little cardboard box shaped like a coffin." The Center for Science in the Public Interest called the Thickburgers "food porn ... the fast-food equivalent of a snuff film. At a time of rampant heart disease and obesity, it is the height of corporate irresponsibility for a major chain to peddle a 1,420-calorie sandwich."
Hardee's is loving the publicity. While Subway touts itself as a health haven and uses vegetables as the background for its Web site, Hardee's is gloating about its skyrocketing sales. "We want Hardee's to be known as the place for big, juicy, decadent burgers," CKE Restaurants Inc. president and CEO Andy Puzder says. "Every time (comics or critics) come out with something, it helps us advance the impression of the brand."

 While Hardee's is licking its chops looking at its sales slips, tort lawyers all over the country must be drooling on their briefcases. Even though Hardee's isn't hiding the content of its artery-hardening product, courts in certain states could still find that people suffering medical difficulties as a result of eating the Thickburger have a legitimate cause of action. A rogue court could theoretically call the Hardee's Thickburger "design defective" and hold Hardee's liable for damages incurred by the moron who voluntarily swallows 100 of them over the course of a month.

 Michael Jacobson of the Center for Science in the Public Interest seems to be paving the way for a claim of product defect due to inadequate instructions or warnings. He told MSNBC that "If Hardee's persists in marketing this junk, it should at least list calories right up on the menu board." The idea here is that if a fast-food company provides inadequate warning to consumers of the dangers inherent in the product, they may be held liable for later damages incurred by use of the product.

 Neither of these claims looks to be particularly strong legally. The design-defect claim assumes that consumer expectation does not encompass the fattening aspects of fast food; the inadequate-warning claim rests on the foundation that people are too dumb to realize that burgers make you fat. But then again, the legal culture has generally enshrined those "brave" plaintiff's lawyers and judges who are able to generate new, fertile ground for lawsuits.

 As tort law grows more and more plaintiff oriented, and as judges begin to take it upon themselves to right the grievous wrongs dealt to the unfortunate few by their own chubby hands, freedoms gradually begin to drain away. The oppressive hand of the courts restricts manufacturers from creating products for which there is a demand. Responsible consumers are prevented from exercising their choice about which products they wish to buy. The only beneficiaries are the irresponsible consumers who have misused products or refused to get information about products they buy, and the lawyers who love them.

 Meanwhile, the hungry tort lawyers are looking for new lines of liability to exploit. Two decades ago, the idea of the obese suing their food suppliers would have been laughed out of court. Now, the only question is how far the lawsuits will go.

 Here's how far: In the next two decades, expect a rash of lawsuits by children with genetic defects against their parents. If the parents were informed during pregnancy that the child would suffer physical or mental difficulties as a result of genetic defect, should the child be able to sue the parent for failing to abort? If a person can consciously make the decision to smoke, and then sue the cigarette manufacturer for damages, why can't a completely innocent child with no freedom of choice about prenatal life or death be able to sue a parent who forces the child into a life of misery?

 Sounds ridiculous, doesn't it? It isn't. Yes, this make courts the final arbiters of morality. But the past decades have seen an increasing effort by courts to grab power from the people and to legislate morality from the bench. Whether it's claiming a fundamental right to sodomy or shirking personal responsibility in favor of corporate liability, courts have exceeded their limits by leaps and bounds.

 So before the courts shut down the Thickburger, let's raise a non-diet cola to the brave entrepreneurs willing to risk legal battle to put out their product. And if you want a Thickburger, get one now -- they might only be available for a limited time.