Suits Over Fast Food Chains' High-Fat Menus Are
Likened to Tobacco Cases, but There's a Difference

By Emily Heller
Palm Beach Daily Business Review
December 18, 02

Are french fries as addictive and dangerous as cigarettes?

Possibly, say some attorneys who are cheering on the product liability suits filed by obese plaintiffs who allege they became diabetics with heart disease and other diseases because of McDonald's fries and burgers.

After the successes of tobacco litigation, public interest lawyers are hungrily eyeing the fast-food industry as targets in the fight over obesity. With impetus from groundbreaking payouts in tobacco suits, attorneys are now seeking to establish junk food liability when the idea was previously unthinkable.

"After tobacco, never say never," said John F. Banzhaf III, who teaches legal activism at George Washington University Law School and spent decades suing the tobacco industry and the past year talking about obese plaintiffs suing fast-food companies. He said he is not directly involved in the McDonald's cases. "I'm just trying to help get the thing rolling," he said.

Perhaps giving some momentum to the obesity cases is the McDonald's recent pretrial settlement of a suit involving beef-flavor additives to its french fries. McDonald's, which for years had claimed its fries were cooked in 100 percent vegetable oil, has apologized, admitted wrongdoing and agreed to pay more than $ 10 million to charities chosen by vegetarian and Hindu plaintiffs, said plaintiffs' lawyer Harish Bharti of Seattle.

"You wonder why nobody did this before," he said of the suits of the obese plaintiffs.

McDonald's had called the french fries case frivolous, said Banzhaf, whose students developed the case, then passed it to Bharti to file and litigate. "I'm used to being called frivolous," he said.

The food and drink industry, through its Center for Consumer Freedom in Washington, D.C., is playing up the pervasive reaction to the suits by the obese plaintiffs as laughable. It is running ads with large headlines saying, "You are too stupid to make your own food choices," and "Did you hear the one about the fat guy suing the restaurants?"

Though it may be poking fun publicly, the food industry is taking seriously the litigation threat posed by obese plaintiffs, said James M. Beck, a product liability defender at Pepper Hamilton in Philadelphia and member of the Products Liability Advisory Council.

Even if these two initial suits fail, others are sure to follow, Banzhaf said. If any fast-food suit succeeds, then candy makers would be next, followed by all high-calorie food manufacturers, he said.

"You could sue practically anybody under this theory" - manufacturers of cake mixes, sugar and potato chips, to name a few, he said. "If this lawsuit gets anywhere, it'll make the asbestos (litigation) look like a walk in the park."

As fast food marshals its defense, deep ambivalence and skepticism remain - even among plaintiffs' lawyers - over whether the law is the right way to attack obesity.

In July, Caesar Barber, from the Bronx, N.Y., sued four fast-food companies, including McDonald's, alleging the food made him obese and gave him heart disease and diabetes. In August, two teenage girls alleged in a suit filed by their parents that McDonald's and two of its restaurants in the Bronx caused their obesity, heart disease, high blood pressure and elevated cholesterol.

In the children's case, Pelman v. McDonald's Corp., a motion to dismiss argued in November is pending.

The Barber case is dormant.

McDonald's attorney of record on the cases, Bradley E. Lerman of Winston & Strawn in Chicago, referred calls to a McDonald's spokesman, who did not return calls by press time.

On its Web site, McDonald's quotes from its response to the suit in saying that decisions people make about what, how often and how much to eat "are wholly beyond McDonald's control."

The plaintiffs' attorney in both McDonald's cases, Samuel Hirsch of New York, could not be reached for comment.

Among other citations, the suits quote a 2001 surgeon general's report saying obesity has become a major health problem with a growing percentage of people, especially children, getting so fat that their excess weight was causing significant health problems.

McDonald's and other fast-food companies "are not totally responsible or even primarily responsible" for this problem, Banzhaf said.

But, he adds, "Certainly they should bear some of it." With its marketing to children with playgrounds, kid's meals and birthday parties, McDonald's lures children to overeat food that is inherently unhealthy, he said.

The cases allege that McDonald's failed to disclose material facts about its high-fat food, said Banzhaf, specifically that eating it to excess can lead to obesity.

"The law of warnings is not designed for the best and brightest of us," Banzhaf said. It is aimed at helping people who need to be told not to stand on the top step of a ladder or not to use a hair dryer in the bathtub, he said.

For example, McDonald's warns parents not to give the toys in its kid's meals to children younger than 3 years of age, Banzhaf said. If parents need to be cautioned about an obvious threat, such as a choking hazard, then why not issue a warning about the danger of overeating the food, he asked.

Moreover, if McDonald's is already producing brochures with fat, calories and other data, why not make that information clear and conspicuous, Banzhaf asked. Maybe the disclosures should be right on the menu, he said.

The idea of a fast-food warning is silly, said Beck, the products liability defense lawyer. Manufacturers aren't required to issue warnings aimed at the "most stupid people," but the average person, he said.

To succeed, the plaintiffs will have to show that McDonald's misstated or failed to disclose information about its food and that this conduct caused the plaintiffs' obesity, said Richard A. Daynard, who teaches strategic litigation at Northeastern University School of Law and is chairman of the Tobacco Products Liability Project.

"I don't know if the evidence supports them," he said. "There are too many obvious causal questions."

Just what the ideal case would look like remains uncertain. Daynard noted that the Public Health Advisory Institute in Boston is planning a conference in the spring to investigate how to tackle obesity using the law.

Though the possible success of obesity litigation is debatable, it has key similarities to tobacco litigation, said one tobacco defender.

"There is an obvious parallel" in the sense that the McDonald's cases will examine what the plaintiff knew or should have known about the risks of fast food, said Peter K. Bleakley, a product liability attorney and partner at Arnold & Porter in Washington, D.C., who represents Philip Morris in tobacco cases.

There are significant differences between tobacco and fast-food litigation, attorneys said

"There is no such thing as secondhand eating," said Daynard of Northeastern University. "There is no such thing as a moderate amount of smoking."

Banzhaf is hopeful that discovery in the obesity case will turn up smoking-gun evidence.

"I would not at all be surprised to find focus groups and psychological workups talking about how to attract and keep obese people - and children - coming to McDonald's," Banzhaf said. That's not necessarily bad, but McDonald's, with its "squeaky clean" image, might not like it, he said.

Some plaintiff lawyers who have chalked up tobacco wins scoff at the idea that fast-food suits by obese plaintiffs are headed down the same path of success.

"I think they are more of a joke than comparable to tobacco," said Steve K. Hunter of Miami's Angones Hunter McClure Lynch & Williams, the winner of $ 37 million and $ 5 million judgments in smoking cases. "McDonald's may be tasty but they are not habit-forming," unlike cigarettes, he said.

"We are really not dealing with an addictive substance in the same way," adds Kenneth B. McClain of Humphrey Farrington McClain & Edgar in Independence, Mo., and the winner of a $ 15 million punitive-judgment award against R.J. Reynolds in June. The definition of an addictive substance is something other than food that triggers a physiological response in the brain, he said.

An addicted smoker is not making a free choice, unlike an obese person eating a Big Mac, he said.

At first blush the cases appear frivolous, but may seem less "nutty" if you think of McDonald's as a manufacturer making a product that is more hazardous than it need be, McClain said.

Also ambivalent is Steven M. Pontikes, whose Chicago firm, Pontikes & Garcia, defends Dunkin' Donuts and other food-service companies in hot-drink burn suits.

"At first blush I said, 'You've got to be kidding.' But when you think about the children's case, the companies probably should have more disclosures about the products," he said.

Class-action attorney James J. Pizzirusso, who, as a student developed the McDonald's french-fries beef-additive case, said he's not sure the obesity suits are going anywhere.

To be sure, fast-food companies know that obesity is a significant problem, yet they promote high-fat foods with little disclosure, he said.

"I'm not saying Samuel Hirsch's lawsuits are great or are going to survive. I have serious questions about them," he said. "I think there is a movement out there - a movement against obesity. I think that litigation is one small part of that movement."

Emily Heller reports for the National Law Journal, an affiliate of the Daily Business Review.

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