- The Washington Times - Sunday, March 14, 2004

For the last year and a half, George Washington University law professor John Banzhaf, who treats the epithet “legal terrorist” as a compliment, has been bragging that fast food restaurants and other purveyors of fattening comestibles are running scared because of the obesity litigation he champions. McDonald’s et al. ought to be worried, he said, because already there have been “five successful fat lawsuits.”

But now that Congress is considering a ban on lawsuits blaming food manufacturers or sellers for making people fat, Mr. Banzhaf is eager to contradict himself. In a press release issued the day before the House approved the Personal Responsibility in Food Consumption Act by a 2-to-1 margin, he said the bill “is surely premature, because there has been only one obesity lawsuit, and it was dismissed by a federal judge.”

Before Congress passes legislation like this, Mr. Banzhaf said, “there should be a real history of abuse which must be corrected, not orchestrated panic based upon one failed lawsuit and some quoted-out-of-context rhetoric.” Having orchestrated the panic and provided the rhetoric, he knows whereof he speaks.

Contrary to the impression Mr. Banzhaf left, none of the five “victories” he kept citing involved a plaintiff who blamed a company for his obesity. The biggest case, cooked up by some of Mr. Banzhaf’s law students at GW, faulted McDonald’s for advertising that its French fries were cooked in vegetable oil while failing to mention they were precooked in beef fat, an omission that understandably upset Hindus and vegetarians. The case, which led to a $10 million settlement in 2002, was a “fat lawsuit” only in the sense it involved cooking fat.

Attempts to hold restaurants responsible for their customers’ waistlines have been far less successful — as Mr. Banzhaf now emphasizes, lest the Senate follow the House’s lead and put an early end to the litigious speculation that has brought him the publicity he craves.

The first such case, filed by New York City lawyer Samuel Hirsch, for whom Mr. Banzhaf has been an “informal adviser,” met such widespread derision it essentially was laughed out of court.

The plaintiff, you may recall, was a 56-year-old maintenance worker named Caesar Barber, who was 5 feet, 10 inches tall and weighed 272 pounds. The main problem with Mr. Barber, who continued a diet consisting largely of burgers and fries despite a heart attack and warnings from his doctor, was that his stupidity was literally unbelievable.

“They said, ‘100 percent beef.’ I thought that meant it was good for you,” Mr. Barber claimed after filing the lawsuit in July 2002. “Those people in the advertisements don’t really tell you what’s in the food. It’s all fat, fat and more fat. Now I’m obese.”

Mr. Hirsch eventually dumped Mr. Barber in favor of two hefty New York teenagers who claimed to have eaten at McDonald’s on most days of the week for years. That lawsuit, which Mr. Hirsch intended as a class action, was dismissed twice, the second time with prejudice, for failing to adequately state a claim.

Yet as Mr. Banzhaf and others noted, U.S. District Judge Robert Sweet left the door open to arguments that some aspects of fast food fare are not widely recognized. A plaintiff might make headway by arguing fast food is addictive, for example, or that certain highly processed dishes are not what they seem, containing more fat, calories, or cholesterol than the average consumer expects.

Victor Schwartz, a leading expert on tort law who has been advising the National Restaurant Association, says these lawsuits still face formidable obstacles. He thinks a greater danger to the industry is that at some point state attorneys general will start filing lawsuits demanding compensation for Medicaid expenses, as they did with tobacco.

And herein lies the strongest rationale for congressional intervention, even if it means telling state courts which lawsuits they may hear — a prospect that should make federalists uncomfortable. The agreement that settled the state tobacco lawsuits in effect imposed a nationwide tax and nationwide regulations, including advertising restrictions that would have been unconstitutional if imposed by statute, without approval from Congress or any state legislature.

A similar arrangement with food companies (or gun manufacturers, the concern of the other NRA) likewise would usurp the authority of state and federal legislators. Although condemned as contrary to the balance of powers created by the Constitution, legislation aimed at preventing such a scenario may be necessary to preserve it.

Jacob Sullum, a senior editor at Reason magazine, is a nationally syndicated columnist and the author of “Saying Yes: In Defense of Drug Use.”

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