From the WSJ Opinion Archives
AT LAW
McLawsuits
Trial lawyers target fast food--and Americans' intelligence.
BOSTON--On a recent Saturday afternoon, John Banzhaf, a plus-size professor of law, finished off his chocolate fudge brownie, washed it down with a Diet Coke, and ambled up to the front of a packed Northeastern University lecture hall to talk about suing the food industry for making people fat.
Prof. Banzhaf, an architect of the tobacco lawsuits that cost Philip Morris and others hundreds of billions of dollars to settle five years ago, teaches a course in public interest law at George Washington University. He calls it his "sue the bastards" class, and students must file a lawsuit to receive a passing grade.
A federal judge tossed out one of several Banzhaf suits against McDonald's back in January, ruling that it's not the law's place to protect people from their dietary excesses. Still, the professor is pressing on. Addressing a sympathetic audience here at the First Annual Conference on Legal Approaches to the Obesity Epidemic, Mr. Banzhaf declared that, among others, Burger King, Taco Bell, Pizza Hut, KFC and Wendy's would be hearing from him soon. "Seven suits are in progress," he told those on hand, mostly trial lawyers and their potential expert witnesses in academia. "Three have been won, and four or five more are in the works."
As silly as it is, the coming legal assault on junk food was predictable. The tobacco victories, which followed big scores in asbestos and breast implants, have made the trial lawyers richer and more cocksure than ever. The profession seems incapable of policing its own, and the result has been an explosion of self-interested legal entrepreneurs masquerading as public servants. The politicians, particularly Democrats, have done little to advance the cause of tort reform, lest they clog a major artery of campaign contributions. What distinguishes this latest class-action money grab, however, is that, at bottom, it's a bald assault on the public's intelligence.
The case against the food industry--broadly defined by opponents to include everyone from farmers and retailers to advertisers and restaurant owners--ultimately rests on the assumption that overweight Americans are too weak-willed or too stupid to resist food marketing. Hence Prof. Banzhaf's pep rally was preceded and followed by presentations from a dozen or so other activists with tenure, all attempting to separate obesity from individual responsibility.
Prof. James Hyde of Tufts University told the audience the idea that a healthy lifestyle is a matter of personal choice is a common myth. "The reality," he continued, "is that healthy behavior is often dictated by factors completely outside the individual's control." Prof. Marion Nestle of New York University--she's quick to note that her name is pronounced NES-uhl--said that obesity is the result of America's food supply being too plentiful and too cheap, and that "deliberate federal policies make this so." Ben Kelley, who heads the Public Health Advocacy Institute, which sponsored the conference, said he simply wants "to help the many who can't resist the blandishments of the marketplace."
Others couldn't resist dragging their sundry liberal political causes into the mix. After calculating that obesity-related illnesses cost the U.S. up to $50 billion annually, Prof. Aviva Must of Tufts University remarked, "That's a lot, even for very wealthy countries that have a lot of money to spend on things like war." Michael Jacobson of the Center for Science in the Public Interest said the federal government isn't spending enough on the problem because "the Republicans' $400 billion federal deficit will not allow for such things." Stephen Joseph, the San Francisco trial lawyer who filed (and later dropped) a suit to ban Oreo cookies, warned that "male conservative Republican right-wing elements" are the biggest opponents of this litigation. "They're more worried about freedom," he said. "They don't care about kids."
What Prof. Banzhaf and others plan to do with all this counterintuitive "expertise" is hard to say. The second part of the conference, a "Legal Strategies Workshop," was off-limits to the press. Nonjournalists who did attend were forced to sign a two-page affidavit beforehand that read in part, "I understand that [the workshop] . . . is intended to encourage and support litigation against the food industry and that information acquired at the Workshop is to be confidential and in keeping with these interests." Attendees also had to agree "not to appear as an expert witness or work as a consultant or in any other capacity for or in the food industry before December 31, 2006."
The Personal Responsibility in Food Consumption Act, recently introduced by Rep. Ric Keller, a Florida Republican, would quash much of this nonsense pronto. But like all tort-reform legislation approved by the House--a similar bill banning frivolous suits against gun manufacturers passed earlier this year--the measure is likely to stall in the Senate unless Republicans can muster a filibuster-proof majority. In the meantime, says Walter Olson of Overlawyered.com, we can only hope that "a fit of sense will descend on the judiciary and the press, and that this will all be laughed off the national stage eventually."
Mr. Riley is a senior editorial page writer at the Journal.
