On Monday, the Center for Science in the Public Interest filed a class-action suit against KFC to force the fast-food chain to eliminate (or at least disclose) its use of partially hydrogenated oil — described by CSPI as "the chemically altered, trans-fat-laden oil that kills roughly 50,000 Americans per year." The suit, filed in District of Columbia Superior Court, alleges that KFC's use of partially hydrogenated oil without explicitly informing consumers violates D.C.'s local consumer protection laws.
"Grilled, baked, or roasted chicken is a healthy food-and even fried chicken can be trans-fat-free," said CSPI executive director Michael F. Jacobson. "But coated in breading and fried in partially hydrogenated oil, this otherwise healthy food becomes something that can quite literally take years off your life. KFC knows this, yet it recklessly puts its customers at risk of a Kentucky Fried Coronary." . . .
"District of Columbia law allows consumers to seek relief from the courts when companies fail to disclose essential facts about their products," said CSPI litigation director Stephen Gardner. "That KFC uses the worst frying oil imaginable to prepare its chicken is something that KFC should absolutely be required to disclose at the point of purchase."
The lead plaintiff in the case is retired physician Arthur Hoyte, who claims to have eaten at KFC numerous times unaware of the risks to his health.
"If I had known that KFC uses an unnatural frying oil, and that their food was so high in trans fat, I would have reconsidered my choices," said Dr. Hoyte. "I am bringing this suit because I want KFC to change the way it does business. And I'm doing it for my son and others' kids-so that they may have a healthier, happier, trans-fat-free future."
CSPI's complaint is here. The New York Times reports on the suit here.
UPDATE: More on this suit from Overlawyered.com and Michael Krauss.
And it is time for the Health Fascists like CSPI to go away.
Trans-fats are worse for you than alternative fats that can be used in frying. Some of hte fast food chains allegedly use them here, but not in certain other countries that regulate them.
This is not like the stupid suits by obesre people who claim not to know that eating 16 Big Macs a day make you fat. This is a request for elimination or disclosure of a harmful substance that is easily replaceable.
Perhaps this should be done by legislation instead of lawsuit, but the issue is not as absurd as youmake it out to be. Requiring disclosure (if not removal) seems to me to be a reasonable exercise of the state police power.
KFC has one on its website, and surprise surprise, it lists trans fat.
As with most 'dangerous' objects which in America includes just about anything one can think of it boils down to informing the victim beforehand.
That said, this is not the sort of issue best resolved through litigation. Indeed, the FDA has already mandated that nutrition labels on packaged food include information about trans fat content (which became effective January 1, 2006, although the FDA has granted some extensions).
Something similar could be done with respect to fast food. In general, I think a good case can be made that fast food should be subject to labeling requirements, since people are increasingly relying on fast food for a significant portion of their dietary intake. But even if you don't think general labeling is necessary, labeling with respect to this issue may be a good idea, again because one cannot tell from simple inspection what oil was used in preparation.
Those years without delicious breaded chicken fried in trans fats simply wouldn't be worth living! =D
How often do consumers check the websites of fast food companies before eating their food? Indeed, how often do consumers even know in advance exactly what fast food chain they will use, and what they will order?
It makes sense for the relevant information to be conspicuously available at the time and place where the consumer makes his or her decision about what to order. Indeed, that's why we require nutrition labels on packaged food, as opposed to putting it on a website or a master chart somewhere.
1. guy installs a diving board on a 4 ft deep above ground back yard pool, dives in, breaks neck, sues the world and wins.
2. Professional butcher removes the interlock on the safety guard on his meat slices (the circular saw kind). Slices thumb off. sues because manufacturer should have designed it so that he could not bypass safety devices. wins
3. need a talk about step ladders? there is not a blank spot on them that doesnt have a warning label.
consumer products lawsuits, the attorneys and the juries are amazing.
Respectfully, the nutritional information is available at most fast food stores. I've requested it every time I've decided to "try" low-carbing it. There are even signs conspicuously posted in most of these places that say nutritional info is available upon request. They keep the handouts conveniently beside the register.
If the point is that we want to protect the people that don't feel like asking for this information, then I guess that's another story.
I guess my point is, if one is so inclined to monitor what goes into their body because they are concerned about their health...the info is readily available.
Because otherwise, if the risk from a meal is as low as everyone that isn't CSPI thinks it is, isn't the requirement for "conspicuous" and "relevant" (who decides if using any [or some arbitrary threshold of] trans fat is relevant? The neo-prohibitionists at CPSI? The FDA?) information a complete overreaction?
And won't it typically lead to people simply ignoring the proliferation of signs and hysterical information?
I mean, Christ, it's not like the chicken is full of hydrogen cyanide. We're talking something that moderately to slightly increases the risk of heart disease if you consistently eat a goodly amount of it, and nothing more.
(Full disclosure: After long experience, I reflexively despise anything CSPI does. This reaction has not yet once done me harm.)
Part of the problem has been that sometimes a diet high in fats is correlated with increased risk of heart disease, and sometimes (e.g. the famous 'Mediterranean' diet) a diet high in fats is correlated with a reduced risk of heart disease. Gradually we've come to understand that all fats are not equal, and some are bad for you and some are actually good. But only slowly are we learning which is which.
The problem is exacerbated by the fact that there are many different possible chemical variations on 'fat.' That is, 'fats' are not just one type of chemical but many, and somewhat surprisingly it turns out each has to be independently assessed for its effect on health -- there does not turn out to be much in the way of generalizations about the entire class of compounds that we can make.
Furthermore, fats are chemically modified by the packaged and fast food industry to improve the texture or storage life quality of their foods. No one tested these modifications before, because we used to think that we could deal with 'fats' as a single class, more or less, and that minor modifications would produce, well, minor changes in how they effect people. Now we are seeing that, surprisingly, minor chemical modifications in fat can make major changes in how they effect people. No one saw this coming. So the FDA is struggling to think out how to deal with this, and the packaged and fast-food industry is scrambling to keep up.
Personally I think they're both trying to do the best they can, but the situation is confusing, $billions are at stake, and there is probably a significant lack of trust on both sides. The actions of the parasites in this legal case are only going to delay resolution of the problem, because they'll siphon off $millions for their own pockets, because they'll ruin any tentative bridges of trust and make everybody become highly legalistic and defensive, and because they'll present the issues in stark black and white when scientifically they're anything but. But this is why people -- including myself and most other scientists I know -- frequently want to hang all the lawyers.
LOL. How long before the bottom step has a built-in talking scale? "Get off now, your weight exceeds the safety rating of this ladder," or if you're under the weight limit, some other warning...
Without that information, it's too hasty to prejudge the suit.
I don't go to KFC expecting health food. I know it can cause heart disease, mostly b/c I have been conscious during my lifetime, during which it has been pelted into me. KFC hasn't been on TV extolling the virtues of how its food is chock full of vitamins and will restore 20 years to your life. Only someone with the mind of a fourth grader could look at this and think KFC isn't for unclogging arteries.
And this guy is a doctor?!?!?! I hope his patients start suing him for failing to know anything about the causal effects between food and the human body.
Finally, Cyrus, here's a mind blowing idea - if you don't like the oil KFC uses, go to a different restaurant. Do you really believe that the rest of the unwashed masses are so stupid that only a god like yourself should be able to determine where they eat?
I don't agree either that litigation is the way to solve this. But, I think its important to recognize the differences.
I just hope this campaign and the pressure it brings will convince KFC to change the oil it uses.
Go back to lard.
It's all natural.
And delicious.
(Full disclosure: After long experience, I reflexively despise anything CSPI does. This reaction has not yet once done me harm.)
Amen to that. If I'd only read one CSPI-inspired news piece, I'd be moderately anxious. As it is, I've read a couple dozen or so, and when it dawns on you that you're dealing with a group that basically thinks existence is a threat to your health, you do begin tuning it out.
Medis, I would be interested to know what counts for you as "fast food." Is it only chains like McD, KFC, &c., or also independent vendors? No one ever seems to sue Pam's Old-Fashioned Burger Hut or whatever for non-disclosure of calorie, trans-fat, &c. info, and yet I suspect that local eateries account for as much intake of "unhealthful" foods as chains do.
It's obvious enough that a lot of the energy behind such campaigns is simply and solely hatred of large corporations. The campaign against soda machines in schools is the most recent example. The SF Chronicle editorialized more than once in favor of banning them, citing childhood obesity, diabetes, &c., and I thought at the time, "OK, why not limit them to diet sodas?" The soda manufacturers proposed exactly this, and the Chron was still against, on the grounds that diet sodas have "no nutritional value." Neither, in the sense they mean, does water; but they don't propose banning sales of bottled water, or for that matter water fountains. Go fig.
http://www.yum.com/nutrition/menu.asp
I don't even want to know how bad that stuff is for me. Restaurants shouldn't have to get notarized waivers to sell this stuff either. Nobody forced me to eat this stuff and I haven't been force fed with KFC either.
Michelle Dulak Thompson - It's obvious enough that a lot of the energy behind such campaigns is simply and solely hatred of large corporations.
There would be no campaign against trans fat if corporations did not need a longlasting stable cooking oil due to the industrialization of food. Trans fat was invented to make oil last for a long time in a solid form, easy to transport. Now that we know the health problems associated with it, it is surely best to get rid of trans fats from our diet--there is absolutely no human need fulfilled by them. Big companies do just fine without trans fats--look at Oreos, for example, which have no trans fats anymore.
Do you think the 1964 Surgeon General report naming smoking as a health risk was also motivated by a hatred of large corporations?
The soda manufacturers proposed exactly this, and the Chron was still against, on the grounds that diet sodas have "no nutritional value." Neither, in the sense they mean, does water
Water has no nutritional value compared to diet soda? You realize that it is not caffeinated, right?
As an aside, I think we need to distinguish between litigation and regulation in this area. It may well be that fast food restaurants are trying in good faith to adequately inform consumers (although as I recall, a significant percentage of fast food restaurants do not post nutritional information in the store or provide brochures). In that sense, holding them liable for damages may be inappropriate.
But that doesn't mean regulation of these activities is a bad idea. For one thing, a standardized system would make it easier for consumers to know exactly how to get this information. For another, there is always going to be a conflict of interest for restaurants between promoting their products and providing accurate and conspicuous nutrition information, and competitive forces may exacerbate this problem. A regulation could both address this conflict in incentives and relieve this competitive pressure.
Sigivald,
I'd say the FDA is the right agency to make those determinations. And I don't know about you, but I frequently consult the FDA-mandated nutrition labels on packaged food. So, for me at least, the FDA has not gone so overboard as to render this system useless for consumers.
Russ,
Don't you remember the KFC ad where the slim wife tells her couch potato husband it is time to start eating better, and then gives him a bucket of KFC? It's a classic.
Anyway, I very much support the idea of letting consumers put pressure on restaurants over trans fat. Such consumer pressure has proven remarkably effective in many similar situations. But first the consumer has to know what is going on.
Michelle,
I'd be fine with extending a label rule to small chains and solo restaurants if they sold the same items, prepared in the same way, and over sufficiently long periods of time. In other words, if your food is standardized to a sufficiently high degree, it seems to me it can be effectively labelled.
And that is basically what I mean by "fast food"--food which is not made-to-order, but rather highly standardized. In fact, that is a large part of the appeal of fast food--people know that anywhere they go in the US, and perhaps even the world, a bucket of KFC will contain the same things and taste the same.
But anyway, other people have objected to applying such a rule to small chains and solo restaurants, for at least a couple reasons. One is that many such places do a lot of made-to-order preparation, so the labels would be inaccurate in some cases. Personally, I don't see that as a problem--you can still have the labels for the standardized stuff, and consumers will know that made-to-order preparations will vary from the standardized stuff.
Another argument is that small chains and solo restaurants could not bear the cost of the rule due to a lack of economies of scale. I actually have no idea how expensive it is to do this--it seems to me a lot of relatively small vendors of packaged foods have found a way. Regardless, rather than having no rule at all, you could just have a less burdensome version of the rule for small chains and solos. Of course, if that would be too misleading, then maybe no rule at all would be better.
In any event, I have no desire to defend everyone who might favor such a rule on their own terms. But for me, this really has nothing to do with the size (or global nature) of the corporations involved.
As for the doctor who is the lead plaintiff here: If he knew anything about nutrition in America, he would know that for a couple of decades, trans fats were used nearly everywhere that fat was added to foods. If he were really worried about "unnatural fats", he would not have been eating out on deep-fry, because it's either going to be a trans fat or its going to be a saturated fat like tallow, lard, or palm oil. The unsaturated natural fats that are healthier (e.g., olive oil) can't take the heat of deep frying, at least not in a restaurant where the frying oil will be held at the frying temperature all day.
And finally, if you're worried about the kind of fat, you should first worry about how much fat you're eating. There's no fat so healthy that a piece of chicken dipped in it can be as healthy as a grilled piece of chicken.
Am I the only one who remembers that it used to be "Kentucky Fried Chicken"? They started using "KFC" isntead, to get the "Fried" out of the name, in the 1980's diet craze when people were against anything fried and McDonald's first introduced salads. (Remember when people used to think that, so long as it was "salad" it was healthy? Ha ha ha.)
Had KFC used an unhealthy oil that existed in natural form, no court would even hear it. But since this oil is an artificial, manmade substance, it can fall under government regulations covering unsafe additives.
I am curious as to how you could have "had" to eat food. Did the food hold a gun on you demanding that you eat it?
You sure about that? What if they chose lower-cost, less-healthy beef tallow over olive oil?
Translation: I'm fine with making up random regulations and imposing them on other people, without caring what the cost is to them.
Yes, I believe that. There might be public pressure to get them to switch, but if they use a naturally occuring substance, they wouldn't have a leg to stand on.
Similarly, that is where the tobacco industry got into legal trouble. It wasn't the tobacco, but the additives they put in it to make it more addictive.
Are you angry that we regulate asbestos and keep it out of products? Are you angry that we regulate food products in various ways, for safety and cleanliness? Are you angry that we regulate automobiles with safety standards?
Can we at least demand that CSPI creeps wear a large, red warning tag when then enter places of business?
I propose the following wording:
I think a 23"x19" label would be adequate.
There would be no campaign against trans fat if corporations did not need a longlasting stable cooking oil due to the industrialization of food. Trans fat was invented to make oil last for a long time in a solid form, easy to transport. Now that we know the health problems associated with it, it is surely best to get rid of trans fats from our diet--there is absolutely no human need fulfilled by them. Big companies do just fine without trans fats--look at Oreos, for example, which have no trans fats anymore.
Not sure this makes entire sense. You say that corporations "needed" a "longlasting stable cooking oil." Now we know it's harmful, and suddenly there is "absolutely no human need" fulfilled by it. Obviously this can't all be true. If corporations started using trans fats because they "needed" oil easier to transport and store, then unless the transportation and storage advantages have independently disappeared, the "need" is still there, regardless of our new knowledge. How do you see that need being supplied? Are there no costs at all to anyone?
And then this:
Water has no nutritional value compared to diet soda? You realize that it is not caffeinated, right?
So lacking caffeine is in itself a "nutritional value" now? If that were the issue, there's lots of caffeine-free diet soda; I've bought it occasionally when the ordinary diet soda was out of stock at this or that market. But if caffeine is the issue, someone might at least have said so. No one, so far as I know, has proposed forbidding students tea or coffee.
Damn you for one of those annoying people who say things better and shorter than I do. I wasted a couple grafs saying that.
You say: "Translation: I'm fine with making up random regulations and imposing them on other people, without caring what the cost is to them."
First, I draw your attention to the fact that I specifically addressed costs later in that post. In general, even in the part you quote, considerations of cost are implicit, because presumably the costs associated with ascertaining nutritional content are what make it impractical to require every dish prepared at any restaurant--as opposed to only highly standardized items--to have a nutrition label.
Second, I'm not sure what you mean by "random", but I have been suggesting something based on the FDA's current label mandate for packaged food, which as of January 1, 2006, included trans fat. In that sense, I am deferring to the expertise of the FDA on the issue of exactly what information would be most useful to food consumers.
In general, if there are some prohibitive costs associated with such a proposal, or other good reasons to think it would be a bad idea, I'd be happy to consider them. But I don't see any such reasons as yet.
Here's the issue. When people originally put asbestos in buildings, most people did not know that it could cause cancer. However, only a true moron would not know going to KFC for a tasty bucket of wings could damage your health. I think I realized it could be unhealthy at the age of ten when I rubbed a piece of chicken on a paper napkin and could soon see my fingers on the other side.
Those involved in this lawsuit are either looking for a quick buck and want to impose more regulations on people by further limiting choice, or they are so stupid they should be sterilized in the best interests of evolution so they cannot spread their idiocy to the rest of the planet.
We see suits like this and lawyers suddenly wonder why people want tort reform?
It is true that at the time asbestos was first used, we didn't know of the harms. But now we do. And we ban the use of asbestos in new construction, with limited exceptions I think. Are you outraged about that ban? Don't you think that people should be able to freely choose whether their building is full of asbestos? Only a true moron would not realize the danger there.
I'm just curious about all the outrage. Transfats are probably worse for you than marijuana or a lot of other stuff that society has banned. I don't favor a ban, but a big warning might discourage people and keep them from imposing externality healthcare costs on the rest of us through insurance rates.
Of course, these costs should be taken into account when setting a trans fat policy. But if informed consumers would prefer food with less trans fat, and made eating decisions accordingly, that would allow the market to sort out how to handle these costs, which seems like a good idea to me.
This argument is of course absurd. I mean KFC is a fast food joint. A reasonable member of the public would never assume they are particularly healthy.
I seriously doubt this suit is really motivated by a desire to inform the public or anything of the kind. I suspect the individuals really object to people going to KFC at all and hope that by making them display unappetizing health facts all over people won't eat at KFC.
Economists pretty much agree that each lawyer added to the mix reduces gross domestic product by about $2.5 million (old figure--probably more now). They also agree that every $7.5 reduction in GDP causes one death--this is the familiar (and true) "poverty kills" point. So, whenever a law school graduates three lawyers, someone will die as a result. That makes producing lawyers a lot more dangerous than a meal at KFC.
Class action against the law schools, anybody?
Although I think this case is ultimately a clear loser, the issue might be a little closer on the facts than your summary suggests. One of the relevant facts is that over the last few years, the health risks associated with trans fat have been widely published, including an FDA advisory. Another relevant fact is that some of the other fast food restaurant chains besides KFC have responded to these known health risks by cutting their use of trans fat oils.
So, it is not exactly an issue of people being unaware that fast food in general is unhealthy to some degree. Rather, it is an issue of people being unaware that KFC's fast food is particularly unhealthy, and perhaps to a negligent degree in light of the recent information about trans fat.
In short, a reasonable person might not expect KFC's food to be healthy in some general sense. But a reasonable person might not expect KFC to be continuing to use trans fat oils under these circumstances.
Also, how did this plaintiff manage to live long enough to retire?
It's really good and I don't do doggy bags. I felt compelled.
Nope, not buying that claim. McDonald's fries have not been the same since the Hindu suit that led to abondoning Lard and going to vegetable oil. But then, if you mena making a previoulsy desirable taste, yet moderately poor health choice now so upalatable that you no longer buy any of it, perhaps you are correct.
And as for the asbestos argument, inhaling the carinogen is passive. However, no one is holding my mouth open and pouring trans fat down my gullet.
This is absolutely shameless. We have taken a potentially good thing - the need to warn consumers about some stuff they might not be aware of - to an extreme(every consumer I know figured out a long time ago that fast food is not good for your heart).
Tort reform now!
One problem here is that users of trans fats save money using them , but the health costs are borne by others at a much later date. So KFC's savings are at the expense, many years later, of its customers and those who pay for their health care. So it seems reasonable to address the use of trans fats at a societal level, just as with asbestos and other toxic substances with widespreaad exposure and a delayed effect.
BTW, I despise CSPI too. But even a stopped clock is right twice a day.
I actually think that a court would be foolish to ban transfats, and never would do so. It might order labeling.
To the extent that it might have prevented the WTC collapse, yes. To the extent that it might have prevented the Challenger accident, yes.
And a note to Angus: Asbestos is a totally natural product.
Well, that would be all right if it worked that way. But the point of the lawsuit that we're duscussing is to subvert both the market and the legislature. A handful of lawyers, jurors, and judges will decide for everyone. We have no say in the matter.
Agreed we need to go to a loser pays system except for class action suits, in which case the prevailing party ought to be able to receive treble damages.
As I said above, I agree that "this is not the sort of issue best resolved through litigation."
Timothy,
As an aside, are you sure they do that in every restaurant?
In any event, as I noted above, even if KFC is making a good faith effort, I think there could be a real benefit to standardizing and regulating the nutritional disclosures provided to consumers of fast food.
Also, are transfats part of the "Colonel's secret recipe"?
Good post. I can only add the extra calories (never mind whether the source is fat) people consume eating out (not only fast food) seems to be the main contributor to the large weight gain we in the US have experienced over the last 20 years. Obesity does have a social consequence: type 2 diabetes. It’s going to cost a lot to treat all these people, and these costs will ultimately be socialized. So what people eat these days in restaurants matters and matters a lot, unless we go back to stay-at-home moms determining the family’s nutrition.
You say: "I get no claim on you, your activities, or third parties because I volunteer to pay for your health care."
I'm not sure I buy this. If you and I are part of some mutual insurance pool whereby everyone insures payment of each other's health care costs, why don't we all have a legitimate interest at stake when some third party causes injury to one or more members of our pool?
In insurance law, this is called subrogation--insofar as I have indemnified your loss, I can substitute for you and assume your legal claims relating to the loss. So I don't see why I, as your health care insuror, could not assert a claim against a third party who wrongfully caused you harm, resulting in health care costs that I ended up paying.
Moreover, in insurance situations there is an obvious moral hazard problem (which in mutual insurance pools can take the form of free-riding). So, it also makes sense for mutual insurance pools to adopt behavorial restrictions designed to combat free-riding.
Of course, I don't mean to imply that insofar as a civil society represents a mutual insurance pool of sorts, it would be justified in attempting to eliminate all risky behavior, since presumably the right to take reasonable risks of our own choosing is something we would often want to retain. But we can legitimately protect ourselves from moral hazards and free-riding, since by definition these behaviors would not occur in the absence of civil society (ie, if we had to bear the costs ourselves), so one cannot retain the right to engage in such behavior.
Absolutely. Asbestos is a useful material that saves lives and is perfectly safe when properly enclosed. You might as well ban electricity because, when household wiring is done poorly, some people will accidentally come into contact with deadly voltages of electricity and die.
Fact is, in the modern world your life is in the hands of engineers all the time. They do such routinely stellar work, however, that you aren't even aware of the hundreds of times a day you dodge death by milliseconds or fractions of an inch because deadly forces or materials are properly channeled to serve you instead of endanger you.
Perhaps the very success of modern engineering, especially in contrast to such routinely fallible and undependable institutions as government or the law, is why so many folks seem to fall into the sad delusion that the world is naturally, or can be made into by laws and courts, a safe place, and life a journey that one can reasonably navigate with a child-like unawareness.
(1) Few people get it. That means the cost per person is small, and my share can be regarded as merely an act of (forced) charity. I can deal.
(2) Many people get it. But this means the net cost per person is small, because most or all people will receive back in benefits much of what they pay in taxes. This situation is just a weird shell game where you rob Peter (the taxpayer) to pay...Peter! (the diabetes patient).
I will agree separately, however, that socializing any cost that hits most or all people is a priori insane. We've all got to pay the costs anyway, so why not pay them directly, instead of indirectly by first paying the government and then having the government pay our creditors? Especially bearing in mind that a Federal parisitocracy must be set up to manage the transfer and paperwork, and will inevitably siphon off some of the wealth we're transferring from our right pocket to our left.
I am reminded of looking at my paycheck when I was a graduate student and noticing the first time Federal tax was taken out. And I thought: wait a minute, I'm being paid from a research grant, so I'm being paid with tax money. Why tax the tax money I get? Why not just pay me less of it in the first place, and save on accounting and postage costs? We live in a strange and cynical world, I tell you.
"Something must be done. This is something. We must do it."
Lawyers will litigate....it's an irrefutable law of nature. Main problem as I see it is causation, the purpoted link between diet and heart disease is under a state of flux and it NOW appears that carbohydrates are as bad as lipids. Of course that will change.
So are you against engineering standards?
However, as you probably know, scientists and engineers set and enforce their own standards, in order to protect the guild against unscrupulous or incompetent individual members. Do I support those standards? Very much so. And I have done my share, from time to time, to punish shoddy, bogus, or deceptive work by my peers. Any professional tribe, if it is to survive and keep the trust of the public -- I'm talking to you, Mr. Hastert -- must be the harshest possible critic of its own transgressing members.
Much like I've seen various products that naturally have no fat, and never had fat added, labeled "fat free".
(Water is fat free and very low sodium!)
But don't you understand that CPSI won't be satisfied until there's a big black skull-and-crossbones icon next to every item on the KFC display menu that they don't like? And even that won't satisfy them if people keep buying the stuff. ("Mmmmm. Trans fats.") Their real goal is to make it impossible for people like me, who like to eat KFC chicken once or twice a year, to do so.
As an aside, the rules of evidence specifically provide for scientists, engineers, and so forth to provide their expert opinions. So, lawyers consciously defer to such experts on factual matters, and allow them to aid the jury in reaching factual conclusions.
Anyway, so suppose I hire an engineer to make something for me, and without my knowledge, he violates the applicable engineering standards while doing my project. As a result, when I try to use this substandard product, it fails and injures me.
Do you think I should be able to sue my engineer for damages?
I do realize the Court considers the opinion of experts, but it does not defer to them. Always, the jury or the judge is the final determiner of what the Court considers "fact." In the same way, what constitutes good engineering should always be decided by an engineer, never by a lawyer.
I'm no longer sure what you are complaining about. What you say should happen in a contracts case also happens in a torts case. When something like industry standards are relevant to a torts case, the parties will submit evidence about industry standards (eg, industry publications containing standards), and they will bring in industry experts as witnesses. Those experts will testify about those standards and explain how they think those standards should be applied to the facts of the case.
So, if this process is good enough for a contracts case, I don't see why you think it isn't good enough for a torts case.
Anyway, so you walk into the engineer's shop and buy something off the shelf. There is no written contract. The product is substandard, it fails, and it injures you.
Should you be able to sue the engineer for your resulting damages?
This is insane. The logical end of this type of reasoning is that our parents inflicted great harm upon us by giving birth to us - after all, they set into motion a chain of events that is often terribly traumatizing, painful, and which inevitably results in death. They are therefore liable, and should be subject to punitive damages.
I know, I know. It's been done before. In New Jersey.
The question of what kind of contract, exactly, you have when you go into the store, and how precisely that depends on what you do, and what the storekeeper does -- this is exactly the stuff I as a scientist would leave to the lawyers, the relevant experts in the field. I trust that you've worked out good principles of what is, and is not, a contract over the centuries, and it's my job as an amateur to learn as much as I need to know to survive about how it's properly done, and then (if necessary) take advice from a professional if and when I need it.
What goes wrong in the torts case, if I understand you correctly, is that now the state is modifying definitions in the contract without the prior consent of both parties. It's saying "Ho there, engineer, we are going to redefine what is meant by 'FM radio' so that it excludes bombs disguised as radios."
Why is this a problem? Because maybe there's a very good engineering reason why bombs should look like radios, and lawyers don't understand this, because they didn't take Advanced FM Radio and Bomb Design in college. If so, the socially productive solution is for people to learn to ask whether a given "radio" is a real radio or a bomb, and for the law to make clear that this is part of what you must do to have an enforceable contract, implied or not, about buying radios. For amateurs to forceably modify engineering best practise about what a radio should look like is not socially productive, any more than it would be for (as noted in another thread) non-lawyers to define what contract legal language should look like.
In the case in point, the question of whether or not trans fats should be used in frying fries is not, or should not, be a legal question decided by judges or legislators. It's perfectly reasonable for the law to say you cannot lie or shrug your shoulders and say 'I dunno' when someone asks whether your fries are fried in trans fats, or lard, or used motor oil. But which frying medium to actually choose should be a food-science question or business decision.
Whether to buy the fries is a decision properly made by each consumer without outside interference, in very much the same way as each consumer must decide how much alcohol to drink, whether to smoke or not, how much to exercise, whether to take pills for high cholesterol or not, whether to have children to help in old age or not, whether to save for retirement or unexpected illness or not, and whether to look both ways before crossing the street.
And my reason for that general principle is that legislation and the law are simply too blunt an instrument -- not reliable, precise or wise enough -- to make anything even remotely approaching the best decisions for each and every individual case. I suggest the best the law can aspire to in practise is to make sure parties to any contract don't defraud each other. I suggest the best government can do is try to make sure the parties to any contract are as informed as reasonably possible about what each other means, through education, state-sponsored testing and certification, and information exchange. All else is fool's gold that saps time and money from achievable goals.
I have good news for you--what you want is usually exactly how the law works. Your general complaints about the legal system, in other words, appear to be based on a misconception about how the legal system resolves these issues.
The law, for example, has attempted to lay out a series of default rules for commercial exchanges which make it possible for people to engage in such exchanges with minimal transaction costs. Those rules are precisely about defining what the buyer and seller can both expect without requiring them to go through elaborate exchanges of information and long bargaining sessions leading to detailed written contracts. Of course, people can vary their contracts from these default rules in all sorts of ways if they so choose, but the law gives them the option not to go through all that effort as long as they are content with the default system.
Frequently, those default rules refer to industry standards and practices, and the general commercial law typically makes no attempt to define exactly what those standards and practices should be in advance. That is precisely why in these cases, the parties would bring in expert witnesses to testify--they need the experts to analyze and explain how these general rules should apply to the specific case.
So, for example, this KFC case is partially based on a DC statute which specifies that: "Unless excluded or modified (section 28:2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale."
The statutory definition of "goods which are merchantable" includes that the goods must "pass without objection in the trade under the contract description."
So, in your radio/bomb case, if the thing is called a "radio" during the sale, the question would be whether this thing would "pass without objection in the trade" under that description ("radio"). And to get an answer to that question, the parties would call in industry experts to testify.
In that sense, the general commercial law doesn't try to define in advance "the best decisions for each and every individual case" (eg, it wouldn't try to define in advance what a merchantable radio was). And in fact, the application of the general commercial law to most informal exchanges is never even considered by the courts, because both parties comply with the default rules and are happy with (or at least resigned to) what happens as a result.
But in a case where one party believes that the other party has violated these general default rules, the courts may play a role. Nonetheless, given the nature of the default rules, the courts will look to actual experts to define exactly what those rules mean in the context of the particular case.
So, be happy. It turns out that the legal sytem generally works the way you want it to.
Perhaps Houston Lawyer grew up with parents who told him that he had to finish all the food on his plate because there were "starving children in Korea" or wherever. (This is sometimes blamed for the fatness of those same people in their adult years, though I'm not recommending that they sue their parents...or the starving Korean kids, for that matter.)
Also, there was a great Bizarro comic this week about fast-food chicken and the fear of bird flu. I'd post the link, but King Features Syndicate doesn't allow complete archives now.