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.