- The Washington Times - Wednesday, July 31, 2002

As with asbestos, tobacco, and most recently, estrogen hormone replacement therapy, trial lawyers are poised and salivating at the possibility of Big Fat lawsuits. The snack, fast-food and soft-drink industry, dubbed "Big Fat" by opponents, is the next likely target of methods now perfected by trial lawyers.

The damages racket is the brainchild of tobacco litigation specialists like John Banzhaf. A professor at George Washington University Law School, Mr. Banzhaf markets his "lawsuit kits" promising "hundreds of billions" (yes, billions) in marginal profits to trial lawyers interested in suing tobacco companies. Mr. Banzhaf is pioneering efforts to sue Big Fat in like manner: "You may not be able to prove that somebody got fat because of a particular product. … But you can prove that the companies misrepresented, by omission, what is in their food."

The two-pronged, Big Tobacco-style strategy is to legislate and litigate. In Congress, H.R. 438 was introduced in June to acknowledge former Surgeon General David Satcher's declaration last December that obesity is a major U.S. health epidemic. The Wall Street Journal reported recently, however, that the Centers for Disease Control data Mr. Satcher used in his report were derived from a relatively small sample and the results compiled after one year, rather than the customary three. Meanwhile, the Senate Subcommittee on Public Health is scheduled to introduce the Improved Nutrition and Physical Activity Act. Cosponsors Sens. Bill Frist and Jeff Bingaman would expand federal agencies by allowing them to appropriate funds for educating the public on the dangers of excessive weight gain.

In the states, between 15 and 20 legislatures levy taxes on Big Fat products, and at least three California, Texas and Vermont tried to levy additional taxes this year to raise revenue for obesity programs. As budget shortfalls continue to climb, it is not unreasonable to suspect that tax increases on Big Fat products will win the support of general fund-minded lawmakers, albeit in "obesity prevention" disguise. Our cynicism is well-founded: This is exactly what has happened with tobacco tax increases and state settlement funds.

As government begins to digest the obesity issue, trial lawyers have initiated litigation alleging that various companies misrepresent nutrition data. Next, trial lawyers will sue a manufacturer for misleading advertising and finally, sue a particular company like McDonald's for not issuing a warning in super-sized font that a Big Mac contains more calories and grams of fat than the Food and Drug Administration recommends per day. After a few years of this, and numerous investigative reports showcased on television, public opinion will allow state attorneys general t o sue Big Fat without risking election-year fallout.

Fortunately for those of us who can make adult choices for ourselves, scientists and the government cannot agree on what constitutes healthy eating, never mind the relation, if any, between Big Food and disease. A study conducted by the Harvard School of Public Health last year surveyed the health habits of 300,000 people the most comprehensive study yet of its kind. The study found that the much-loved food pyramid popularized by the U.S. Department of Agriculture actually contributes to rising levels of obesity. And according to a study published this month by the Duke University Medical Center, the bottom tier of the pyramid, including pasta, rice, and bread (foods we're supposed to eat more of) causes the most excessive weight gain, whereas meats (second tier from the top) contribute much less to obesity. Dr. Robert Atkins of "Atkins Diet" fame has known this since the 1970s, and it's made him millions.

The legislate-litigate method typically ignores personal responsibility. While "fat tax" champions like Kelly Brownell of Yale University argue that the U.S. food environment is too saturated with fat and sugar advertising, any supermarket's selection of pre-register magazine reading will attest to the widespread information available about weight loss. So, is the problem the food we eat, or our exercise habits, or laziness?

Really, though, the causes of obesity and the need for a compassionate approach are not the point. Anti-obesity activists, tax-and-spend politicians, and trial lawyers are convinced that Big Fat is the next target for vilification, regulation, tax increases and litigation. As Ted Kennedy, chairman of the Senate Public Health Subcommittee, considers our nation's heft in hamburgers, perhaps the senator will lend a few moments for the facts to be heard, rather than merely condemning and ascribing a price tag to a problem.

Grover Norquist is president and Emily Sedgwick is state projects manager at Americans for Tax Reform.

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