Some legal analysts have been anticipating a surge of lawsuits against fast-food chains and other purveyors of "unhealthy" foods. The underlying assumption is that fat would be the "next tobacco" -- a prospect derided by proponents of tort reform and critics of our litigious society. Thus far, however, the wave of fat suits have yet to materialize.
Weil, Gotshal & Manges attorney Lianne Pinchuk does not think this is an accident, as there are important distinctions between tobacco and fat-based tort claims. "Attempts to use tobacco litigation as a model for fast food litigation have generally failed and will likely continue to fail in the future," she writes in the National Law Journal. Among other things, many state legislatures have acted to insulate fast-food chains from certain types of suits, whereas some state legislatures sought to facilitate claims against tobacco companies. There has also yet to be a "smoking gun" document suggesting fast-food companies have acted in bad faith. As Pinchuk concludes:
Despite the lack of success of obesity-related personal injury cases thus far, it is important to remember that when allegations were first made against tobacco companies, the possibility of large verdicts seemed remote. It was only once the litigation reached the discovery phase and negative internal documents were revealed that large plaintiffs' verdicts became possible. The Big Food cases to date have generally not led to discovery, and only Big Food itself knows what damning documents may exist. If they do exist and are discovered by plaintiffs lawyers, they may provide ammunition for more suits and increasing verdicts. Right now, however, fast food companies are enjoying more protections than tobacco companies ever did, and it appears that Big Food is not the next Big Tobacco.
Just wait until some law firm peddles the idea that salads are more deadly and accuses Big Food of deception for introducing them. I will not be surprised.
I was expecting some repleading about how McDonald's misled consumers about what was actually in their food but I don't believe it has happened.
Surprisingly food has a similar effect.
Now that we understand this can we end the drug war?
Pot is an anti-depressant. Did I mention cocaine? Meth?
Well the stupidity multiplies.
One shouldn't assume, however, that such smoking guns are just waiting to be uncovered in all cases.
Yes, it is important to remember that when W.R. Grace scientists were discussing how asbestos exposure causes disease and death in the 1950s, they were doing so in a certain context and that it is unfair to get all emotional about that and just because Grace continued to argue even as it went into bankruptcy in 2001 that asbestos was no more dangerous than peanut butter that we need to keep all of that stuff in context.
The meaning of the word "addictive" has changed over the years. When I was in grade school, I was taught that tobacco was "habit forming", not addictive. Heroin was addictive. The difference was your body went through severe withdrawal symptoms (such as muscle cramps, debilitating pain, hallucinations, etc.) when denied something it was addicted to. Nothing nearly as severe happens when you try to give up cigarettes. (Recall how Senator Dole was ridiculed when he said he didn't think tobacco was addictive. He just hadn't kept up with the changing definition of the term.)
I have little doubt that, given the dollars involved, the term addictive can be stretched to cover the craving I occasionally feel for a Big Mac. They call it a "Big Mac attack", don't they?
"Nicotine is addictive. We are, then, in the business of selling nicotine--an addictive drug effective in the release of stress mechanisms."
"The cigarette should be conceived not as a product but as a package. The product is nicotine....Think of the cigarette pack as a storage container for a day's supply of nicotine....Think of a cigarette as a dispenser for a dose unit of nicotine. Think of a puff of smoke as the vehicle of nicotine....Smoke is beyond question the most optimised vehicle of nicotine and the cigarette the most optimised dispenser of smoke." (Philip Morris, 1972)
I might change my mind.
McDonalds has nutritional information on its website.
Big Mac:
540 calories (260 from fat), 29 g fat, 1040 mg sodium
Bacon Ranch Salad with Crispy Chicken:
350 calories (150 from fat), 16 g fat, 1150 mg sodium PLUS
Newman's Own Ranch Dressing:
170 calories (130 from fat), 15 g fat, 530 mg sodium
It's not an outragous argument that the salad is at least as bad for you as the burgers are, with more fat, and more sodium. That Ranch salad is far from a healthy alternative.
If you think I'm unfair using the Bacon Ranch salad, look up the Caesar Dressing, which is worse than the ranch dressing, and even subsitution of grilled chicken doesn't make the salad healthy. That dressing is the worst part.
I'm against the whole food-lawsuit in the first place, but something makes me uncomfortable about the general assumption most people will make... that because it's a salad, it's much healthier. And it's not like it is an accident on the part of the advertisers.
McDonalds might not have to worry, but White Castle does. Heroin's got nothing on a platter full of sliders.
Take a look at the legal expenses involved in defending these lawsuits, as compared to the revenues of "Big Food," and get back to me if you still believe this. In other words, if there is no "material risk of losing," the "burden" on the industry is imperceptible.
My experience must be different than yours. I've seen both my clients and my own firm take very large actions to avoid outcomes that were estimated to have less than a 1% chance of materializing. If one of these law suits pays off for the plaintiffs, McDonalds is out business. My experience is firm-terminating-outcomes tend to gather a lot of attention, no matter how unlikely the event's occurrence may be.
Besides, my sense of fairness is offended when someone is forced to bear a needless burden no matter how rich that person might be. So the possibility that McDonalds might be able to bear the burden does not molify my concern if I do not believe the suits are a proper way to set public policy.
Indeed, you may recall that George W. Bush coined a new mutation of that meaning last year, when he referred to American society's dependence on petroleum as an addiction. If this mutation gains footing beyond oil, it could come back to bite the fast food industry down the road.
Americans by and large lead very busy lives, and most of us simply don't have enough time or energy to prepare three nutritious meals per day for ourselves and/or our families. The main appeal of fast food isn't that it's tasty, and certainly not that it's nutritious. The main appeal of fast food is that it's convenient and, well, fast. That convenience is the real equivalent of nicotine in fast food. If it all suddenly disappeared tomorrow and we were all forced to prepare all our own meals again, many of us simply wouldn't know how to cope. In that sense, the addiction meme applies at least as well to fast food as it does to oil. If the trial lawyers ever pick up on this, watch out.
That must explain why Philip Morris is out of business.
Come on. By your logic, no one can even go INTO business in the first place, because there's some tiny chance that a frivolous lawsuit might drive them out someday. There's no sense in which a "very large action" is justified because of a risk that has "less than a 1% chance of materializing"; I've never seen a corporate client make a decision like that in my entire career. And I don't think the specter of wholly irrational cost-benefit analyses should be used to justify legislating some sort of special immunity.
Your prediction is that the mere existence of these lawsuits, unless we stop them before they run their course in the legal system, will "change what we are allowed to eat in this country." I think that's just utter Chicken Little tripe. Crazy mass tort theories are a dime a dozen, and the result is typically nothing more than a few extra warning labels. If companies changed their entire business model to avoid every crazy theory that comes down the pike, they'd be doing it once a week.
But it's nice that we have Ted Frank here to advise us prospectively that even if the plaintiffs do find a smoking gun, it's sure to be some random memo from a middle manager that's being taken entirely out of context. I wonder what it's like to have such extreme faith in corporate righteousness.
The answer, it seems to me, is far simpler: public attitude. Back when a much larger percent of the population smoked cigarette lawsuits would have been just as unlikely to go forward. If it's a practice that you occasionally indulge in it is very difficult to see people who choose to do the same as helpless victims.
I suspect that if as many people who don't see smoking as even an occasional option felt that way about fast food we would start to see a shift in attitudes. People who ate too much fast food would start to be viewed as victims and eventually juries would be sympathetic to claims against fast food providers. It just isn't going to happen while such a large portion of the population will hit up McDonalds when on a road trip.
I suspect you were misinformed, both as to the severity of heroin withdrawal and as to the effects of cigarette withdrawal. There is a difference of degree there, but not of kind, and judging by how many smokers can't go through with it I doubt the degree of suffering is that much less. I don't know where to look for statistics, but I expect there is a considerably higher percentage of heroin addicts that manage to kick the habit and stay clean than there is of cigarette smokers. Cigarette smokers who quit cold turkey are sick for a week, and most don't stick it out. Quitting heroin cold turkey is hard, but that's not what keeps addicts on the drug, it's that they still want it after they get through withdrawal - and furthermore, having reset their system, the next dose will give them a better high than they've experienced in a long time!
McFood is food, differing only in minor ways from all the other food products people consume. Any bad effect produced by consuming McFood can be avoided by limiting consumption, and replicated by consuming other food products, even those viewed as "healthy". Hardly anyone consumes McFood to the exclusion of other food.
Suing McD's for being the particular cause of obesity would be like suing Absolut or Miller for being the particular cause of alcoholism.