- The Washington Times - Saturday, September 30, 2006

The food-prohibition movement is using the courts to punish businesses for selling foods the Center for Science in the Public Interest and others think are “too high” in fat or calories (or whatever). Georgetown Law School Professor John Banzhaf III is a movement leader. He and his students recently won a $12.5 million judgment against McDonald’s because the restaurant chain incorrectly claimed its french fries were cooked in pure vegetable oil.

In 2003, Mr. Banzaf demanded procedural and marketing changes from six nationally known ice cream companies to avoid lawsuits. Acting as a “friend of the cone,” I advised those companies to tell Mr. B to buy two double-dip cones and stuff one in each ear.

This was fun, but strictly fantasy. Business treats lawyers and courts as you treat a rich great-aunt who has gone dotty. You know she’s nuts, but thwarting her could cost you. So you retrieve the silverware from the trash and buy back the kids after Auntie has sold them to wandering beggars.

The Food Lawsuits — followed soon by litigation against candy, popcorn, bacon and eggs, etc. — are here. American business stretches out like ripe fields, awaiting harvest. Cooperative courts, complicit juries, money for the taking — as they ask in Jersey, What’s not to like?

Courts are now a high-stakes crapshoot. Some states have reputations as Lands of Opportunity for ambitious product-litigation lawyers. Lawyers know specious damage suits against nearly any legal product will be entertained, so the big-bucks stampede is on.

Should consumers who bought a legal product voluntarily — fully aware of its disadvantages — receive billions just because lawyers can persuade a dozen people of no particular expertise that the product is “dangerous” or “unhealthy”? If you answered “yes” or “maybe,” you have the Litigation Sweepstakes mentality. That mentality awarded damages to a fast-food customer who burned herself when she placed a coffee cup between her legs as she drove her car. (Hot coffee, flimsy cup, moving car — duh.)

What we are looking at is deconstruction of an entire economy. In the Brave New World ahead, every business will need heavy insurance in case some product or practice is suddenly “convicted” of a previously unknown “flaw.” Insurance and litigation costs will make everything more expensive. Some products will be eliminated by crippling damage awards. Others will cost more than ordinary people can pay. Uncontrolled product litigation could wreck the most affluent way of life in history.

Eventually, lawyers will hit cars, bicycles, air conditioners, furnaces, bathtubs and myriad other products. Builders will stop building homes with stairs. Some businesses will close. Others will flee to Mexico, India or Indonesia, taking good jobs with them. Pharmaceuticals will almost certainly move offshore. The world’s greatest medical research industry will no longer be American. Litigation will drive it out.

Without air conditioning, the southern United States will become uninhabitable. Cars will be so expensive (think hundreds of billions in awards) that only government officials, corporate executives and the wealthy will own them. Schools will abolish playgrounds, monkey bars, swimming pools, football, baseball and physical education classes. Kids’ sports clubs will disappear. Amusement parks too. An entire way of life will be sued to death. America will become a sterile caricature of what it was.

Think that’s ridiculous? Before our jihad against Big Tobacco, I might have agreed. Tobacco was a target made in lawyer-heaven — illness, bad breath, ashes, stinky rooms, secondhand smoke, fires, holes burned in furniture… filthy habit. We hit them for a quarter of a trillion dollars — the first-ever legal heist on this scale. (Only 21 countries have a higher gross national product.)

It was “for the children,” we said. (Who could object?) States divided up the loot. Participating lawyers became zillionaires and looked for fresh meat. Gun makers were next, but the heist failed — this time. Now initial salvos at Fast Food and Ice Cream have hit.

Societies should avoid legalized mugging of those who are envied or hated. Greed and Envy usually come back to bite us. By now we should know this, but we just can’t help ourselves.

A century ago the Vanderbilts, Rockefellers and Carnegies (and others) lived like sultans. We envied them. Finally, we enacted the Income Tax. Yeehah. We Soaked the Rich, by jingo. Only the top 10 percent of wage earners were affected. Ninety years later, as we groan under taxation levels that must have 1775-patriots spinning in their graves, we can see what Envy cost us. Not only did it come back to bite us, it has us by the throat.

The current litigation frenzy will bite us too. Our glee over stinging “immoral” companies whose products fatten us, or seem to shorten our lives, will be temporary. Free enterprise will shrivel. So will the American Dream. The “joke” will be on us. We’ll be less free, less affluent, less pleased with life, poorer in our prospects, and very sorry that we let Greed get the better of us.

We’ll grieve for our lost culture, but it will be too late. Decades hence, our grandchildren will see old photos of happy families eating at McDonald’s or enjoying ice cream — or of teens hanging out at the pool and driving convertibles — and they’ll wonder what all that was like. They’ll ask why we hated hamburgers, sundaes, cars, swimming pools, air conditioning and amusement parks … so much that we made them disappear. We’ll pathetically answer that “the lawyers made us do it.”

This doesn’t have to happen. Our fabulous American Way of Life can still have a future, but only if we make legislators, representatives, delegates, and senators act to stop the legal shakedown artists. And we have to do it now.

Otherwise, no more ice cream — or heaven knows what else.


Author of a weekly column, “At Large,” in the Atlantic Highlands Herald, an Internet newspaper.



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