Posted on 06/24/2002 7:29:06 AM PDT by Stand Watch Listen
It was 1997, and the tobacco companies were on the ropes. Facing a rash of lawsuits from state attorneys general seeking billions of dollars in reimbursement for what they claimed were the Medicaid costs of smoking-related diseases, the companies were about to agree to an unprecedented settlement with the states. Under that settlement, the major tobacco companies would pay the states more than $200 billion, accept sweeping restrictions on cigarette advertising and pay $1.5 billion for an antismoking campaign.
While very few editorialists had much sympathy for the tobacco companies, many wondered what kind of precedents these lawsuits would set. If the government and plaintiffs' lawyers could manipulate the law to force makers of a legal product to cough up this kind of cash because tobacco is harmful to public health and costs the government health-care dollars, why couldn't other risky products, such as alcohol or fatty foods, also face the same kind of lawsuits in the years down the road? As Insight reported in June 1997, "many also wonder if the demonizing of cigarettes will lead to a 'slippery slope' in which caffeine, fatty food, chocolate and anything else the public-health community might deem bad or politically incorrect becomes subject to regulation or prohibition" [see "Fighting the Tobacco Wars," June 16, 1997].
Longtime antitobacco crusader John Banzhaf ridiculed this notion. Cigarettes were a uniquely dangerous product, he and other lawsuit supporters maintained. "We recognize that although alcohol is an addictive drug it is addictive only to a relatively small percentage of the population, whereas in contrast nicotine is an addictive drug which is addictive to most of the population," Banzhaf told this Insight reporter at the time.
Banzhaf, a professor of law at George Washington University who mounted some of the first lawsuits against tobacco companies in the 1960s and was instrumental in getting smoking banned in most public places, also was quoted in Insight's sister daily, the Washington Times, as arguing that tobacco was a unique case. "The tobacco industry usually doesn't argue about what we do to them," Banzhaf told the Times in 1997. "They say, 'Wouldn't it be horrible if it spread?' But there's no other industry in the United States that kills anywhere near 500,000 people a year."
The antitobacco lawyer continued, "I've heard it since 1969 when they said if we applied the broadcast Fairness Doctrine to cigarette commercials [to require TV stations to run antismoking ads] there'd be antiautomobile ads and anti-McDonald's ads. But it never happened."
That was then and this is now. Five years later, fresh from his victory over tobacco companies, Banzhaf is a leader of a movement of trial lawyers and public-health activists who are marshaling the strategies used against tobacco to go after fast-food restaurants and food processors that sell "fatty" food, candy, soft drinks and other consumables deemed politically incorrect. The leading chain of fast-food restaurants, McDonald's, states on its Website, "For both quality and safety, McDonald's has been a leader in setting and strictly enforcing high standards — often exceeding those established by industry and government." Yet, "Some of the same legal tactics, by which I mean both legislative and litigative, which worked so well against big tobacco could also work well against the issue of obesity," Banzhaf told Insight in mid-June of this year. "I happen to think legislation would be a better way to go but, if as with tobacco the legislators don't legislate, the lawyers will litigate."
How does Banzhaf reconcile his new position with past statements implying that no other industry would be targeted in tobacco-type litigation? "I said that the argument the tobacco industry always made that anything that happens to tobacco is likely to immediately turn around and equally apply to dozens of other things simply isn't true. And it isn't, in fact," Banzhaf says. He quickly adds, "Obviously, no legal precedent lives in a complete vacuum."
Those who warned that other politically incorrect products would be targeted if the tobacco lawsuits were successful are not surprised, although they didn't think food would be targeted so quickly. Victor Schwartz, who has argued product-liability cases as both a plaintiff and defense attorney and now is general counsel for the American Tort Reform Association, says all the rhetoric about tobacco being unique was just a tactic to keep other businesses on the sidelines while tobacco was being pursued.
Schwartz tells Insight: "They wanted to isolate the tobacco industry from the rest of the business community, so the rest of the business community would not worry that precedents that were used against tobacco would ever be used against them, particularly the alliance between the plaintiffs' lawyers and the attorneys general."
Sam Kazman, general counsel for the Competitive Enterprise Institute, says it's all part of a trend toward "the medicalization of social issues. That is, you take anything involving a lifestyle choice, you dress it up as a medical problem and people think 'Ah ha, we need a public-health approach to this just like we take a public-health approach to epidemics.' Through that whole approach, you increase the notion that this really is appropriate for some government czar or regulation."
And right now what some call the professional health nannies are in high gear demonizing fatty and junk food the same way tobacco was demonized. Longtime self-styled consumer activist and former presidential candidate Ralph Nader asserted in the New York Times Magazine in June that "McDonald's double cheeseburgers [are] a weapon of mass destruction." Pop singer Moby recently said on HBO's Dennis Miller Live that "all the lawsuits" will force fast-food restaurants to become totally vegetarian in 25 years. In 1998 Kelly Brownell, director of Yale University's Center for Eating and Weight Disorders, told the Boston Herald, "There is no difference between Ronald McDonald and Joe Camel. … We need to start thinking about this in a more militant way."
Just as cigarettes were subjected to "sin" taxes, Brownell has proposed massive new taxes on what he considers to be "bad" foods. The boola-boola fat-checker told U.S. News and World Report in 1998, "Hit junk-food junkies where it hurts: in their wallets" by "slapping high-fat, low-nutrition foods with a substantial government 'sin' tax."
Another group getting into the act is the Washington-based Center for Science in the Public Interest (CSPI), called the "food police" by critics for its dire warnings about dishes such as fettuccine alfredo, which the group dubbed "heart attack on a plate." Margo Wootan, CSPI's director of nutrition policy, recently said on CNN's Inside Politics that "health advocates are looking at tobacco as a model." CSPI also proposes sin taxes on snack foods, soft drinks, candy and gum and a ban on advertising fast food on any TV program commonly seen by children.
And Banzhaf also is not the only prominent tobacco-war veteran to turn his sights on Big Food. Richard Daynard, head of the Tobacco Products Liability Project at Northeastern University, worked on behalf of Mississippi and other states to sue tobacco companies. Now he is working with students to develop strategies that could be used in potential lawsuits against restaurants and food makers.
Daynard tells Insight: "[Mississippi] Attorney General Mike Moore, speaking about the Mississippi [tobacco] case, when asked about going after pepperoni pizzas said, 'When somebody shows they're addictive, that they kill hundreds of thousands of people and that the manufacturers are lying about it, I'll go after pepperoni pizzas.' It's really a question of whether the shoe fits." Daynard concedes that "in many respects, it does not fit." But he says that food makers, like the tobacco companies, have "exaggerated the positive" aspects of their products and "marketed to kids."
At least one group that supported the tobacco lawsuits parts company with its former allies. The American Council on Science and Health (ACSH), headed by Elizabeth Whelan, who is antitobacco but conservative on other issues, maintains that there is a huge difference between tobacco and fast food. "Unlike tobacco, you have to eat," Ruth Kava, the ACSH's director of nutrition, tells Insight. "You don't have to smoke, you don't have to chew tobacco, but you need food. Furthermore, trying to demonize particular types of food as being nutritionally worthless or particularly likely to contribute to obesity is also off the mark, because it's the whole dietary pattern that's important."
But never mind that — the states have been hurting for revenue in the Clinton economic downturn, and public-health activists are pitching food excise tariffs as small taxes that could be turned into bigger ones after the pubic gets used to them. According to the National Taxpayer's Union, 15 states already levy excise taxes on soft drinks; six states and the District of Columbia tax snack food, candy or gum. A bill pending in California would require the state to study the feasibility of taxing junk food to fund new health and dental services for children.
"It's kind of like a perfect-storm scenario," says Mike Flynn, director of policy and legislation for the American Legislative Exchange Council, a membership group of conservative state lawmakers. "If you think about the tobacco stuff, that happened when the states had record surpluses, when you could argue that they didn't even need the money. Now they need the money, so it's even going to be more ridiculous what they try to do."
Another element added to help build the perfect storm is a December 2001 report from former surgeon general David Satcher, a Clinton appointee. The report calls obesity "an epidemic" costing $117 billion in health-care costs and lost wages and uncritically accepts as fact the figure that obesity kills 300,000 people a year, despite an editorial in the New England Journal of Medicine saying that figure is "by no means well established" and is "derived from weak or incomplete data."
To compound this, the IRS in April classified obesity as a "disease" for deduction of medical expenses. This reminds many observers of when Food and Drug Administration Commissioner David Kessler shifted the blame from individual smokers to the tobacco companies by calling smoking a "pediatric disease." Tort reformer Schwartz says, "That's important, because if obesity is a disease, then it's not your fault. That's a very important step because the plaintiffs' lawyers and those who want to make an assault on fatty food have to move away from the concept of individual responsibility just like the antitobacco people had to move away from the idea that you choose to smoke."
Schwartz says plaintiffs' lawyers still have two hurdles to get around before they can make Big Food the next Big Tobacco. One is that food makers and fast-food restaurants haven't yet been demonized in the public mind the way tobacco was. The other is the legal burden of causation, proving a particular product is responsible for an individual's obesity and bad health. Unlike in tobacco cases, where smokers usually were loyal to one brand of cigarettes, obese people eat a variety of foods, making it hard to trace damages to one company or product. "They have to come up with some theory, stretching the law, to get around causation," Schwartz says.
Banzhaf argues that many of the theories to get around causation already were developed in the state lawsuits against tobacco to recover Medicaid costs, the type of case he predicts will be most successful against food companies. In 1994, Florida Gov. Lawton Chiles sneaked through the legislature a law crafted by his trial-lawyer friends that allowed the state to sue companies for Medicaid costs without identifying anyone who had been injured, allowed damages to "be proven by the use of statistical analysis" and said that companies could be held liable according to their "market share" without proving that a particular company's product harmed a particular person. Under pressure, Chiles signed an executive order forbidding agencies under the governor's control from using the statute against anyone except tobacco companies or illegal drug dealers.
But the order doesn't apply to Florida's attorney general, and Banzhaf says the precedent already has been set. "Basically, the state of New York or California could say, 'We've spent so many hundreds of zillions of dollars every year on heart attacks, we estimate that 38 percent of that is caused by obesity,' and then we can take 38 percent of that total cost," Banzhaf explained. "How could such a thing be possible? The best answer is by using the same strategy we used with regard to tobacco."
Banzhaf says this campaign is developing fast, predicts a dozen more lawsuits against food businesses by the end of this year and thinks this litigation will not last nearly as long as those against the tobacco companies before the food companies are forced to pay up or settle.
Banzhaf notes a recent case he helped initiate in which McDonald's settled for $12.5 million with Hindu and vegetarian groups because it had advertised that its french fries were cooked in vegetable oil without saying they had been seasoned with beef flavoring. "We proved that you could bring the suit where McDonald's didn't even lie," Banzhaf gloats. "What they said was technically correct. It was what they didn't say that we got them on."
In unusually frank comments about his profession, Banzhaf said the McDonald's settlement, coupled with the money to be made because of the larger number of food companies compared with tobacco companies, will spur lawyers into action. "They analogize lawyers to sharks, and the blood is in the water," he says. "If mighty McDonald's is willing to shell out $12 million for this kind of suit, then it's quite possible that other companies will shell out likewise."
Many critics of the proposed lawsuits distinguish the McDonald's lawsuit as one of misrepresentation. But Banzhaf sees it as just a starting point to force changes in the industry. He tells Insight that likely future targets for lawsuits will be milk and pork.
Milk commercials "tell you, 'Drink this milk for health reasons,' but then they fail to tell you that milk has a lot of saturated fat and cholesterol, and that you can get all of whatever these health benefits are without these risks by drinking skim milk," Banzhaf says. "That, to me, is very close to McDonald's."
Banzhaf and other activists also take issue with the "Pork: The Other White Meat" commercials. "It is white, but the message that they're sending to millions of people is that it's more like chicken, a safer meat that's much different from beef, whereas I'm told that it's much more like beef than like chicken, and really it's not very good for you," he says. The pork industry counters, and many of its commercials point out, that lean pork in the right portions makes sense in a low-fat diet.
Michael Fumento, a senior fellow at the Hudson Institute in Washington and author of The Fat of the Land, is an obesity expert who doubts that targeting "politically incorrect" foods through taxes and lawsuits will make a dent in the problem. Noting that Europeans are slimmer even though their diets include considerable amounts of butter and heavy cream, Fumento says the problem is not so much what Americans eat, but that they eat too much. "Demonizing consumption of fat is exactly the opposite of what we want," Fumento tells Insight. "As far as obesity goes, what we want to demonize is eating too damned much and exercising too damned little."
Noting that lack of exercise is a big part of the problem of obesity, Grocery Manufacturers of America spokesman Gene Grabowski joked to Insight that, if food is targeted in this way, perhaps "automobiles, television sets and office chairs should be taxed because they contribute to inactivity." Grabowski may have spoken too soon. The CSPI has proposed a 5 percent tax on new TV sets and video equipment and a new tax on cars for just that reason.
And, this time around, Banzhaf refuses to draw a line around what products will or will not be targeted for taxes and lawsuits because of their health risks. When asked where it will all end, Banzhaf replies simply: "I'm not sure anybody at this time can say. I would suggest that we have to work it out the way we always have. Which is, as [former Supreme Court justice Benjamin] Cardozo put it: 'In the great laboratories of law that are our courts.'"
John Berlau is a writer for Insight.
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Don't bet on it. As far as I can tell, the 'average Joe' has been getting it stuck in him sideways for 30 years and he continues to smile and carry on in life. I can't figure it out - I guess after a while you get to enjoy grabbing your ankles...
We're slowing suing ourselves into socialism.
People==>Lawyers===>Democrats
TADA!, another winner. Therefore I'll take the Rib-eye, medium rare, onion and mushrooms on the side, a baked potatoe with sour cream and real butter. And a diet Coke.
---max
To make matters worse, "our side" is now split between those of us who are tired of candidates who wizz on our legs and tell us it's raining, and those who see no wrong with anyone as long as there's an (R) after their name. So...that'll be $10 for your Super Size Big Mac value meal. Thank you, come again...
Scouts Out! Cavalry Ho!
Milk is also loaded with Antibiotics,Growth hormones and preservatives.
I think you should have said milk may include antibiotics, growth hormones and preservatives. It depends on where you get your milk. In Canada where you are from you should not worry about antibiotics or growth hormones in your milk supply for they are both illegal there. As for preservatives, well they are just about everywhere and in everything.
I think you are wrong, our farmers are apologizing for using antibiotics, but says "it's necessary," the only thing I know to be illegal here, is the hormone used to produce 50% more milk, and only because the scientist studying it went public with their findings, much to the chargrin of the government.
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