Fat Americans suing junk food industry

[Guest guest]

This puts an interesting perspective on the story that a few of us have been

talking about...

 

 

http://www.commondreams.org/headlines02/0604-01.htm

 

Published on Tuesday, June 4, 2002 in the lndependent/UK

Fast Food Nation: An Appetite for Litigation

US Lawyer John Banzhaf Was the First to Sue the Tobacco Companies in

the mid-Sixties. Now He Wants to Prosecute the Junk-Food Industry for

Making Americans Obese

 

by Andrew Gumbel

 

John Banzhaf likes to pose this challenge to students who enroll in

his graduate class on legal activism at George Washington University,

in Washington, DC. Think of something that really irritates you or

smacks of obvious civil injustice, he tells them. Then think of a way

of using the law to right the wrong and seek redress.

 

In other words, as Professor Banzhaf himself puts it with the

freewheeling candor we have come to expect from both heroes and

villains in the American legal system, let's sue the bastards.

 

It's a unique approach to legal education that has had some

astonishing results down the years. Banzhaf's students successfully

forced the stuffy Washington Cosmos Club to admit women for the first

time, and got dry-cleaners to stop charging women more than men for

laundering their shirts. Back in the 1970s, they sued Spiro Agnew, the

Vice-President who left office in disgrace shortly before his boss,

Richard Nixon, forcing him to return the bribes he had received.

 

Most famously, Banzhaf pioneered the notion of suing tobacco companies

for the deleterious health consequences of smoking. He started doing

it in the mid-1960s, when everyone thought he was nuts, and he was

still doing it in 1998 when the US states successfully pried hundreds

of millions of dollars out of the Big Five tobacco companies as

compensation for their smoking-related health-care costs. If tobacco

advertising is now banned on television, and smoking no longer

tolerated on planes or in shops and restaurants in many parts of the

United States, it is largely due to Banzhaf's 35 years of campaigning

and savvy application of public-interest law.

 

And now, he has a new target: the junk-food industry. America, as we

all know, is the fattest nation on the planet and getting fatter all

the time. According to a report by the US Surgeon-General, released a

few months ago, 61 per cent of Americans are now significantly

overweight, compared with 55 per cent in the early 1990s, and 46 per

cent in the late 1970s. Obesity generates $117bn in annual medical

bills and triggers 300,000 premature deaths each year.

 

Is this a health problem on a par with the effects of tobacco-smoking?

Banzhaf thinks so, and the government's figures are there to bear him

out. Can the fast-food companies and the agribusiness giants, the

packagers and marketers, be held responsible for the problem? Banzhaf

argues that they are certainly the ones stuffing the nation's

consumers full of fat, sugar and chemical additives. With a little

statistical analysis, he believes, it should be possible to assign

specific shares of the blame to specific companies.

 

And so, he is embarking on a new adventure in legal activism. Already,

his graduate class has inspired one lawsuit, against McDonald's, and

at least three others are in the works around the country. And that is

just the beginning. As a recent magazine headline memorably put it, he

wants to see whether Americans can sue their own fat asses off.

 

Banzhaf, it must be said, is far from your stereotypical litigation

lawyer, forever looking out for an opportunity to screw a corporation

or public institution and make a fast buck. Not only does he not make

a penny from the suits that he inspires, he would, in fact, much

rather not bring them in the first place. He would love it if the

government would overhaul the food industry to make Americans

healthier, just as he would have preferred the government to take

action on smoking unprompted. But America is a country where recourse

to the courts is frequently the only way to effect social change,

since Congress and the federal government are all too often beholden

to powerful industry lobbies, and public activism is rarely effective

on its own because of the country's sheer size and deep-rooted

conservatism. As the mantra goes, " If you can't regulate, litigate " ,

and that is exactly what Professor Banzhaf has in mind.

 

" If government is willing to regulate, force disclosure of fat and

calorie content, get fast food out of schools, put more health foods

in vending machines, install bike racks and showers at public

buildings to encourage more exercise, and so on, great, " he said in an

interview. " But if government does with obesity what it did with

tobacco, which is largely nothing, then we may be forced to go to our

third branch, the legal system. "

 

The big question is how to go about it. It's one thing to say that

diet has a lot to do with the growing obesity problem in America,

quite another to prove in court that client A's heart attack was

caused specifically by McDonald's hamburgers, or by excessive bingeing

on Cherry Coke. Nobody sticks to one brand of food like they stick to

one brand of cigarettes, so individual suits are out of the question

and class action suits would have to depend on highly complicated

statistical analyses of food intake and medical cause and effect.

Also, unlike smoking, there is nothing intrinsically unhealthy about

eating. From the standpoint of food chemistry, at any rate, the worst

that can be said about junk food is that it contains large amounts of

sugar and fat, both of which are actually important parts of a

balanced diet as long as they are consumed in moderation. Can

individual food companies really be held responsible for the

immoderate appetites of their customers? Clearly, if there is a legal

case to be made, it is going to have to be fairly ingenious.

 

Banzhaf's approach is a gradualist one, to start with the relatively

easy stuff and see how far he can take it. The first line of attack is

to go after food companies that misrepresent their products by

understating the fat content, say, or omitting to mention certain

ingredients. That is the basis of all the suits currently going

through the courts. The second, slightly harder one is to accuse

companies of making misleading health claims for their products -

proclaiming pork to be " the other white meat " , for example, when its

fat and cholesterol content are in fact closer to beef than to

chicken.

 

The third approach would be to pick up on sins of omission, or failure

to warn consumers of certain health risks. Is it wrong of a fast-food

chain to fail to point out that its triple-bacon double cheeseburger

supersize meal contains more fat than any sane human being should

consume in a week? Arguably so. Is it grounds for a lawsuit? Maybe, if

the plaintiffs can work with laws on " clear and conspicuous disclosure

of material facts " .

 

And finally, the real zinger, if it can be made to work: an onslaught

on the junk-food industry as a whole, in which McDonald's et al would

be made to pay their share of responsibility for the adult-onset

diabetes, sclerotic arteries, heart attacks and strokes that fast food

helps to cause. Legal analysts are highly skeptical as to whether such

an approach could ever work, and even Professor Banzhaf describes it

as " a reach " . But there are some promising avenues to explore,

including the possibility of describing fast food as something akin to

an addiction deliberately fostered by manufacturers through their

marketing, especially to children.

 

" We know that people can become biologically predisposed to getting

overfed, that once they grow extra fat cells, their bodies become

accustomed to having that fat, " he said. " Those fat cells never die,

and even if you lose weight they lie dormant and constantly try to get

you to eat more. It's not an addiction exactly, but it doesn't leave

people with a completely free choice in what they eat, either. "

 

Banzhaf has other strategies up his sleeve, first developed in the

tobacco campaigns, for exerting pressure on government. One is to push

for higher health- insurance premiums for the overweight, a measure

that would act as an incentive for people to shed some pounds, and

would also shift more of the healthcare costs towards the people who

incur them. Another is to push for higher taxes. After all, if one of

junk food's principle attractions is that it is cheap, taxation is a

simple way for governments to ensure that it does not stay that way.

 

Banzhaf does not pretend that any of these strategies would be a

golden bullet, legally speaking, or even that successful lawsuits, on

their own, would solve the problem of obesity. What he does believe is

that intelligently mounted lawsuits can help change the climate of

public opinion and pressurize junk-food companies and government

regulators into changing some of their ways. " None of the things I'm

suggesting are panaceas, " he said. " But even the threat of lawsuits

might be enough to make some helpful changes. " On the tobacco issue,

it was the change in public perceptions that turned the cultural tide,

and that was due to a mixture of government action, anti-smoking

health messages, public exposure of dishonest practices by the tobacco

companies and, yes, the lawsuits.

 

His is undoubtedly an idea whose time has come. Drive along just about

any stretch of highway in the United States, and the evidence of a

nation addicted to junk is all too abundant in the endless string of

signs for McDonald's, for Burger King, for In and Out Burger, Arby's

and Kentucky Fried Chicken, for Taco Bell and 99-cent Tacos. There is

rarely any healthier alternative. According to Eric Schlosser, author

of last year's bestselling book Fast Food Nation, which has itself

helped to stimulate debate on the subject, Americans now spend more on

fast food than they do on movies, books, magazines, newspapers videos

and recorded music combined. They spend more on mass-produced burgers

than on higher education, or computers, or cars. More than 90 per cent

of American children eat at McDonald's at least once a month, and the

average American eats three hamburgers and four orders of fries every

week.

 

There is certainly no problem in eating well in the cosmopolitan big

cities, where the health kick has long since brought in its wake

organic vegetables, farmers' markets, sun-dried tomatoes from Italy

and home-made bread. But once you head inland from the coasts, away

from the big population centers and the college towns, you find not

only that the fancy olive oils and foreign specialty foods have

vanished; and so, too, have most of the fruits and vegetables and,

with them, the very notion of unprocessed fresh food. It's a

straightforward question of availability, giving the lie to food

industry claims that consumers can exercise free choice in deciding

what to put in their mouths: in the heartland, the chains and big

supermarkets have, by and large, taken over, and the few remaining

family-owned businesses tend to survive through imitation rather than

by providing any significant alternative. Thinness and healthy eating

are increasingly becoming the preserve of the wealthy and the educated

living in privileged urban cocoons.

 

Fast-food chains and soda vendors have penetrated college campuses and

even state-run schools, where they have successfully offered

sponsorship to cash-strapped school districts in exchange for the

right to install their vending machines outside the classrooms. They

have even invaded hospitals. While the cafeteria at the UCLA Medical

Center in Los Angeles, one of the premier research hospitals in the

country, offers sushi made on the premises and a full salad bar, at

the main hospital in Toledo, Ohio, in the heart of the Midwestern rust

belt, the only catering is provided by McDonald's.

 

With such excesses and disparities, not to mention the manifest effect

on American bellies, chins and thighs, have come the beginnings of a

backlash. The junk-food merchants themselves have felt it, and have

changed their strategies accordingly, with Coca-Cola and Pepsi

diversifying into fruit juice, and McDonald's going on a corporate

buying spree to move upscale into so-called family restaurants and

fresh-sandwich chains. " Mad cow disease " hasn't hit US cattle yet, but

the scare has prompted some reassessment of a food economy excessively

reliant on the poorly regulated mass-production of minced beef. There

are also signs that a new generation of mass-market restaurant chains

might grow up with a greater emphasis on quality - the Starbucks craze

is one manifestation, and so, too, are smaller initiatives like the

Wolfgang Puck cafés (founded by Hollywood's most prominent celebrity

chef) springing up across the West. California, with its reputation

for health-consciousness, has been an obvious battleground for the

first stirrings of an anti-junk food movement - just last week, the

city of Oakland, across the bay from San Francisco, voted to ban fast

food and soda from all of its publicly run schools.

 

John Banzhaf's own involvement in the issue began with a student of

his, a vegan who had avoided fast-food fries for years because he knew

that they were dipped in beef tallow. The student was appalled by a

McDonald's advertisement claiming that its fries were cooked in 100

per cent pure vegetable oil - a statement that was literally true but

omitted to mention that the fries were pre-cooked in beef fat. Soon,

classwork on the issue evolved into a full-blown class action suit

brought by Hindus in Seattle and a number of other cities, who said

that the failure to disclose the beef content was an offense to their

religion and constituted an " intentional tort " . McDonald's has

acknowledged the oversight and, according to Banzhaf, is on the verge

of settling the case for around $12.6m.

 

The hidden beef issue has prompted another, more recent lawsuit

against Pizza Hut, the allegation being that the chain's Veggie

Delight pizza has beef products in it. Hidden fat content, meanwhile,

is behind two other actions, one against an ice-cream manufacturer in

Florida, and another against a line of corn and rice puffs called

Pirate's Booty that, according to a test conducted by Good

Housekeeping magazine, contains 340 per cent more fat than is stated

on the bag it comes in.

 

Naturally, there are some pretty powerful interests anxious to stop

any anti-obesity campaign in its tracks. Already, food-industry

lobbyists and laissez-faire economic thinkers have lambasted Professor

Banzhaf as some kind of food Nazi, seeking to dictate what people

should put into their mouths. (The epithets " grease Gestapo " and

" calorie cop " have been hurled in his direction.) In a particularly

bruising appearance on one of the more vulgar discussion programs on

the Fox news channel, the presenters sought to trash Banzhaf as a

hypocrite because he is somewhat overweight himself. A burgeoning " fat

power " movement, meanwhile, argues that any attempt to get people to

lose weight is tantamount to discrimination, that it is perfectly

possible for a woman of average height to have a " natural " body weight

of 20 stone or more, and that airlines, car manufacturers and

restaurants should be obliged to provide larger seats.

 

Talking to Banzhaf, one senses that it is going to take a lot more

than a few gratuitous insults and fat-is-good activists to undermine

his determined sense of purpose. Unlike many consumer advocates -

especially those involved in the anti-smoking movement - he is no

pious moralist trying to tell people what is good for them. He is a

legal thinker first and foremost, and his primary motivation is his

belief that the law can be used as an activist tool for the public

good.

 

" As a lawyer, I have two choices, " he said. " I can litigate on behalf

of whoever brings the buck into my office. Or I can look around and

ask what kinds of problems I can attack through legal action. I find

the latter much more interesting. " It's the kind of thinking that

caused his alarmed detractors to describe him down the years as a

flame-thrower, a troublemaker, even a " legal terrorist " .

 

Banzhaf has no illusions about the fact that what he is doing is

profoundly political, and, indeed, he is plotting out his war on

obesity in political terms. " What we are seeing is a large number of

groups that might not previously have had much in common, coming

together - vegans, Muslims, Hindus, conservative Jews, scientists,

physicians, animal-rights groups, children's rights groups, sports

organizations, and so on, " he said. " Once they start joining forces,

lawyers are going to smell the money, and legal action will gain its

own momentum. "

 

It could take years, or even, like the tobacco campaign, several

decades. But Banzhaf is perfectly lucid about what he can and can't

achieve: " Are suits possible? Yuh. Are some already successful? Yuh.

Can we predict which ones will go and which ones will not? No we

can't, " he says. " But we'll soon find out. "

 

© 2002 lndependent Digital (UK) Ltd

[Guest guest]

Very interesting!

 

Jo

Fat Americans suing junk food industry

 

 

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