Fast food justice isn't good justice

Posted: Nov 23, 2005 12:05 AM

Some lawyers say fast food is dangerous. It can make you fat. I say some lawyers are dangerous. They can make you poor and take away your choices. But special privileges for favored industries, such as the bill the House recently passed to protect the fast-food industry, are the wrong cure.

I like fast food. It tastes good, it's cheap, and it's, well, fast. That's why McDonald's, Burger King, Wendy's, KFC and Taco Bell are so popular. People aren't endlessly stupid, so companies serving nearly 100 million people every day must be serving their customers well.

Of course, eating too much fast food can make you fat. Some lawyers say people don't know that, so they're suing restaurants like McDonald's. Activist lawyer John Banzhaf told me, "What we're trying to do is the same thing against the problem of obesity that we did so successfully against the problem of smoking."

Banzhaf speaks with the voice of experience. The professor at George Washington University was in the forefront of lawsuits against cigarette manufacturers. "People used to say that those suits were frivolous," he noted. "Well, today we call those lawyers 'multi-millionaires.'"

Exactly. The "problem" was that people had made their own decisions and gotten stuck with the consequences. Why was personal responsibility a problem?

So far, Big Food has fought off the lawsuits. But it's a matter of time before some jury somewhere says fat is McDonald's' fault. In a documentary that promoted the "dangers" of fast food, Morgan Spurlock ate all of his meals at McDonald's for 30 days, saying "yes" whenever "Super size" fries were offered. "Super Size Me" was a hit. It won awards from the Sundance Film Festival and the Writers Guild.

As a result of his experiment, Spurlock says, he had trouble breathing, became hot and felt like he was having heart palpitations. He gained 24.5 pounds, and his cholesterol shot up 65 points. Not good.

But why was that McDonald's' fault? The same thing would happen if he ate that much at an elegant French restaurant. We don't blame GM because cars lead us to avoid exercise, or ABC because TV invites us to be couch potatoes.

Not yet, anyway.

You might think it would be obvious that people are responsible for what they decide to do. And indeed, the law must hold at least some people responsible for their decisions -- otherwise, how can fast-food or tobacco companies be blamed for selling their products? Why is a big corporation responsible for its decisions but an individual not responsible for his? Because lawyers can make big money by pretending not to see the obvious.

Banzhaf may have bad ideas that most people reject, but because people don't have a choice about getting sued, the lawyers almost always win. Not at first -- but eventually. They just keep suing until they do; they lost 700 lawsuits before they started winning against the cigarette makers. Banzhaf told me the food business is "the next tobacco."

Last month, the House passed a bill that would protect the food industry from obesity lawsuits. Makers of vaccines, guns and small planes already have special protections. But that kind of partial solution is a bad idea. It prevents one injustice by enacting another: It would give the fast-food industry an exception to the laws that govern other businesses with less political clout. We should all be equal under the law.

The legal system should be reformed so people bear the consequences of their own bad choices. The best solution would be to make people who file baseless lawsuits pay the costs of defending against them. "Loser pays," that system is called, and that's the way it works in most of the civilized world. America's tort lawyers cleverly call loser-pays the "the English Rule," as if it's an odd British idea. It's not. It's the "Rest-of-the-World Rule." Only America suffers under the bizarre "American Rule," which allows lawyers to sue again and again, while forcing others to pay. Loser-pays would bring some justice to their victims.

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