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Jewish World Review March 15, 2004 / 22 Adar, 5764

Debra J. Saunders

Debra J. Saunders
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Consumer Reports

If you are what you eat, then sue | The House of Representatives voted 276 to 139 Wednesday to pass the Personal Responsibility in Food Consumption Act — also known as the "cheeseburger bill" — to prohibit overweight Americans from suing the food industry for their avoirdupois. Given that a 2003 Gallup Poll found that 89 percent of Americans don't believe in blaming the fast-food industry for obesity, you'd think the bill is unnecessary.

I take this vote as Washington's way of recognizing that in America a bad idea, given enough time, will gain support, take root and become law. If there's one value that has been eroded in America, it is the belief in personal responsibility. Hence the House vote.

Consider tobacco lawsuits. For years, juries rejected the suits filed by smokers seeking damages from cigarette companies on the grounds that smokers knew the habit was risky. But after plaintiff lawyers were able to establish that Big Tobacco covered up bad news on smoking, juries found a strong pretense to rule against manufacturers.

The war against Big Mac has begun — even though it is no corporate secret that fast food is fattening. Last year, a federal judge dismissed a New York suit filed by two overweight teenagers who claimed McDonald's hid heath risks associated with Big Macs and chicken McNuggets. But there's always another day.

As Mike Burita of the food industry's Center for Consumer Freedom noted, anti-tobacco lawyers eventually won by filing lawsuits, and then more lawsuits, across the country until finally one jury broke the tide.

Bryan Malenius — an aide for Rep. Ric Keller, R-Fla., who authored the cheeseburger bill — said that his boss believes anti-food lawsuits will fail. Still, Malenius admitted, "You can't imagine that there's not a judge and a jury somewhere in the country that is going to enable (anti-fast-food lawyers) to win the lawsuit that opens up the floodgates."

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John F. Banzhaf III will be there. A law professor at Georgetown University, Banzhaf is America's biggest booster when it comes to suing Big Food.

I asked Banzhaf how someone could overeat fast food to the point of obesity and then sue the chain. His answer: "Under the law, the fact that person voluntarily undertook an activity and even was negligent doesn't bar them from recovery if there was some wrongdoing on the other side."

What wrongdoing? No one can accuse Banzhaf of lacking creativity.

"In many of these situations, the plaintiffs are going to be children," said the professor. Aren't parents responsible? His answer, in essence: Kids can sue when their parents roll an SUV. They can sue when their parents feed them supersize meals.

Banzhaf argued that fast-food chains have an obligation to warn consumers. That's right: They have an obligation to tell people what people have to know.

In particular, Banzhaf believes burger chains should have to display calories, fat content and other nutritional information on menu boards, next to the prices. It's not enough to put that information on the wrapper — because Banzhaf argues people should see the numbers before they order. It doesn't matter that one cheeseburger can't make you fat.

When Burita told me that Banzhaf wants to require nutritional labels so that lawyers can sue if the information might mislead, I told Burita he was exaggerating. But Banzhaf cited kids' food products that offer the percentage of recommended fat intake for adults as an example of the type of behavior that would invite a lawsuit.

Banzhaf also advocates a prominent warning like this: "Warning. Eating fattening food frequently can lead to obesity and double your risk of a heart attack." That is, he is arguing that if fast-food joints don't chase customers away, their customers can sue.

Banzhaf even invoked the addiction card when he said he knew scientists who believe fattening foods are addictive. Addiction, that's legalese for "jackpot."

So as America gets wider, the nation's personal ethics are under-exercised. It doesn't matter if, over time, people's bodies are telling them to eat less. It doesn't matter if the media constantly hector the public on the dangers of over-eating and junk food. It doesn't matter that lack of exercise is a big factor in the thickening of America.

Washington, D.C., Rep. Eleanor Holmes Norton complained in The Washington Post, "We're talking about a public health problem for which our government has not taken responsibility." Actually, Uncle Sam has begun airing TV ads telling Americans to exercise more. But if individuals won't take responsibility for their weight gain, why should their government?

Do you want to put warning labels on televisions, I asked Banzhaf, to warn people that excessive television viewing might lead to lack of exercise and thereby contribute to obesity?

No, Banzhaf answered, "As with anything else, you can carry a good idea to an extreme."

A good idea? So it's a good idea to overeat, under-exercise and then, on the dubious grounds that you had no idea how you got fat — and shouldn't be expected to know — sue a fast-food chain? Only in America.

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© 2003, Creators Syndicate