- The Washington Times - Sunday, February 16, 2003

The dismissal of a lawsuit against McDonald's by customers who blame its food for their obesity provides a satisfying end to one of those crazy modern tales. A lawyer files a ridiculous suit on behalf of some people trying to escape responsibility for their actions; the case proceeds, as the public watches in dismay; and finally, the judge throws it out, telling the plaintiffs to put the blame where it belongs on themselves. Individual responsibility triumphs, and we all live happily ever after.
Well, maybe not quite. The decision is not as heartening as it may appear. True, it was a victory for McDonald's and for the principle that consumers should not be financially rewarded for their own bad choices. But it was only the first battle in what promises to be a long war.
After all, a couple of decades ago, it seemed laughable to think that smokers and state governments could succeed in suing tobacco companies for the health effects of cigarettes. Who's laughing now? The trail blazed by tobacco litigation is wide enough to accommodate all sorts of people blaming others for their poor choices.
This suit was filed last year on behalf of New York teenagers who said they eat regularly at McDonalds, with predictable results. One is 4-feet-10-inches tall and 170 pounds, and the other packs 270 pounds on a 5-foot-6-inch frame. They say they suffer from diabetes, high blood pressure, and other ailments associated with obesity.
Their lawyer, Samuel Hirsch, argued that the fast-food giant cruelly seduced these helpless youngsters. "Young individuals are not in a position to make a choice after the onslaught of advertising and promotions," he declared. But the judge was not persuaded.
At first glance, the decision sounded like a ringing vindication of common sense. "If a person knows or should know that eating copious quantities of supersized McDonald's products is unhealthy and may result in weight gain (and its concomitant problems) because of the high levels of cholesterol, fat, salt and sugar, it is not the place of the law to protect them from their own excesses," declared U.S. District Judge Robert Sweet. "No one is forced to eat at McDonald's."
But Judge Sweet was careful to leave some doors open and to advise the lawyers how to squeeze through them. In fact, one law professor who applauded the suit, John Banzhaf of George Washington University, sounded downright elated. "The judge took the extraordinary step of telling us what he thought was left out," he said. "Anytime a judge tells us what he would like to see in a complaint, I love it."
Judge Sweet's suggestion was to find a way to demonstrate that because of the way McDonald's processes its food, it's even more unhealthy than anyone would suspect. "Chicken McNuggets, rather than being merely chicken fried in a pan, are a McFrankenstein creation of various elements not used by the home cook," he noted, and contain twice as much fat per ounce as a hamburger.
"This argument," said the judge, "comes closest to overcoming the hurdle" of proving that McDonald's should be held liable for the consequences of eating its products. "It may establish that the dangers of McDonald's products were not commonly well known and thus that McDonald's had a duty toward its customers" a duty to disclose more than it did.
Of course, McDonald's makes nutritional information available to anyone who wants it. But the beauty of this argument is that almost any company can be accused of not doing enough to warn patrons. "Just about the easiest task you could be assigned is to show that people have not been vocal enough in alerting the public to reasons not to buy their product," says Walter Olson, author of the new book, "The Rule of Lawyers: How the New Litigation Elite Threatens America's Rule of Law."
You could say people who eat at McDonald's should know they may get fat as a result, and shouldn't blame McDonald's when they do. But you could say anyone who smoked had to know that it was unhealthy and that claim didn't save the tobacco industry from big payouts.
With state budgets swimming in red ink, how long can it be before some attorney general gets the idea to try to go after fast-food companies to pay the costs of treating people for illnesses caused by obesity? This strategy worked with tobacco.
So don't think you've heard the last of lawyers seeking to win large damage awards from the fast-food industry. Says Mr. Olson, "They'll be back for seconds."

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