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		You Want Fries with That? Why the food industry deserves to face litigation. By Richard Daynard When I was organizing lawsuits against the tobacco industry in the 1980s and 1990s, the tobacco companies’ favorite spin became like a mantra: “First, they go after cigarettes. Next, it’ll be red meat and dairy products!” Recently, a writer for a libertarian magazine caustically reminded me my response had always been “No way.” Yet here I am, a decade or two later, urging litigation against purveyors of meat and dairy (and sugar) products—fast-food and packaged-food companies, in particular. What gives? Well, I had a conversion. It began in April 2002, after New York University nutritionist Marion Nestle wrote a book entitled Food Politics, and I was asked to comment on whether her thesis opened the door to obesity litigation. Nestle argues that Americans are getting dangerously fat because we’re consuming more food than we did twenty years ago, largely because food companies maximize their profits by maximizing the amount of food their customers eat. The companies accomplish this through a variety of misleading marketing ploys, and by buying off or manipulating those who are supposed to protect us—politicians, dietitians’ organizations, and school boards, for instance. I found Nestle’s argument plausible and disturbing. What really shocked me was the scope and seriousness of the obesity crisis. In 1978, 15 percent of Americans were obese (meaning, more than thirty pounds above a healthy weight). This was a modest uptick from 13 percent twenty years earlier. But by 1999, the obesity percentage had more than doubled, to 31 percent. An additional 34 percent of the population was overweight (ten to thirty pounds above a healthy weight). In other words, 65 percent of Americans were too heavy. The statistics for children, though lower than those for adults, were escalating even more dramatically. And the problem isn’t just an aesthetic one: Overweight and obese people are developing diabetes, heart disease, cancer, and other medical conditions in huge numbers. Indeed, in 1999, annual premature deaths related to obesity were estimated at roughly 300,000, approaching the figure for tobacco-related deaths. Perhaps most striking is the epidemic of type 2 diabetes among children and adolescents; until recently, this disease was known as adult-onset diabetes. But questionable behavior that contributes to a public-health crisis doesn’t by itself add up to a viable lawsuit. The obvious differences between Big Macs and Marlboros made me question whether my experience with tobacco litigation was applicable to the food industry. There’s no such thing as “moderate” smoking, for example. Even a little is bad for you (though a lot is obviously worse). Eating, on the other hand, is a biological requirement; too little food for a sustained period is as bad as too much. And there are other important distinctions. People who eat too much get immediate feedback, in the form of an expanding waistline; smokers can harbor lung cancer or heart disease for years without symptoms. Nicotine is strongly addictive, which explains why people continue to smoke even when they know the dangers. Finally, though cigarettes can injure or kill nonsmokers, there’s no such thing as “passive eating.” Nonetheless, the more I learned about the food industry’s operations—the massive marketing budgets; the deceptive health and low-fat claims; the rush to supersize everything; the inundation of soft-drink promotions and machines in schools; the extra sugars and fats added to seemingly healthy potato, chicken, and fish dishes at fast-food restaurants—the more I became convinced that changing the industry’s behavior is the key to stopping the obesity epidemic. True, the food industry isn’t responsible for many factors that contribute to obesity: “bad” genes, inactivity, conflicting advice from nutrition experts, hedonism, lack of willpower. But these factors don’t account for our bigger belt sizes. The genetic makeup of a population doesn’t change much over a few decades. Weakness of will and hedonistic desires are pretty much what they’ve always been. Average physical activity may have declined since the late 1970s, but it wasn’t very impressive then. What’s making us fat has to do with changes in the way we’re eating. And the food industry is obviously responsible for a lot of these changes. But where does litigation fit in? Back in 1988, I wrote an article for the Journal of the National Cancer Institute in which I described five possible public-health benefits of tobacco-industry litigation. First, that holding tobacco companies financially responsible for even a fraction of the cost of tobacco-related medical care and lost productivity—more than $100 billion annually—would force them to raise prices, thereby discouraging consumption, particularly among children and adolescents. This has in fact happened: Dramatic price increases prompted by the industry’s settlement of lawsuits brought by the states were followed by equally dramatic reductions in smoking among minors. Second, that lawsuits would have an important educational effect, translating epidemiological statistics into easily understood cases of real people. This too has happened. Even the industry’s “personal responsibility” defense—anyone stupid enough to smoke shouldn’t complain about getting lung cancer—helps discourage smoking by underlining a causal link the tobacco companies otherwise used to deny. Third, that the ability of plaintiffs’ lawyers to obtain and publicize internal industry records documenting misbehavior would serve to delegitimize the industry, making legislative and regulatory remedies politically practicable. More than thirty million pages of such documents are now available. The shocking behavior they reveal has made “tobacco executive” a term of opprobrium and tobacco money a dangerous commodity for politicians. Fourth, that health insurers would be able to seek industry reimbursement for money spent caring for tobacco victims. To date, tens of billions of reimbursement dollars have been paid to the states. And fifth, that if the tobacco industry responded like other industries confronted with product-liability claims, it would change its behavior: make its products less deadly, for example, or its marketing less deceptive. This alone has not happened, the tobacco industry having apparently concluded that its only future lies on the “dark side.” Similar benefits can be anticipated from food litigation, whether it takes the form of product-liability suits on behalf of obese citizens or, more likely, consumer-protection suits on behalf of classes of customers ripped off by unfair or deceptive marketing practices. For instance, there’s no reason why the cheapest foods should be the least nutritious. Foods made with added sugars and fats are especially “obesigenic.” If, as a result of litigation costs, the most obesigenic foods carry a higher price tag than simpler, more nutritious foods—the kind your parents or grandparents used to cook at home—that would make a big difference to the American waistline. Food litigation has already produced an explosion of media coverage, which has spotlighted the obesity epidemic. Food-industry trade groups have responded—to the current suit against McDonald’s, in particular—by insisting that everyone knows you shouldn’t eat a steady diet of fast foods, despite the fact that most fast-food business comes from customers who do precisely that. Unearthing documents that show how food companies manipulate and mislead consumers into buying their obesigenic products is likely to anger the public and complicate the benign image of food executives. And if health authorities can establish a causal connection between, for example, soft-drink concessions in schools, obesity, and the resulting health effects and costs, suits to recover these costs might be possible. Finally, if McDonald’s has to pay for the harm caused by its Chicken McNuggets (which a court recently described as “Chicken McFrankenstein”) or Filet-O-Fish, maybe it’ll figure out how to formulate them without all the added fats and starches. After all, food companies don’t have to walk on the dark side. Richard Daynard is a professor in the School of Law and the chair of the Tobacco Products Liability Project.