The War on Fat

Is the size of your butt the government's business?

Jacob Sullum from the August/September 2004 issue

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Likewise, food sellers who give customers extra value for their money clearly are up to no good. "Americans are constantly induced to spend a little more money to get a lot more food," lamented Margo Wootan of the Center for Science in the Public Interest (CSPI) in a press release that accompanied the 2002 exposé "From Wallet to Waistline: The Hidden Costs of Supersizing." She added: "Getting more for your money is ingrained in the American psyche. But bigger is rarely better when it comes to food."

Among the horrors highlighted by the report: "Upgrading from a 3-ounce Minibon to a Classic Cinnabon costs only 24% more, yet delivers 123% more calories....Switching from 7-Eleven's Gulp to a Double Gulp costs 42% more, but provides 300% more calories....It costs 8 cents more to purchase a McDonald's Quarter Pounder with Cheese, small French fries, and small Coke (890 calories) than it costs to buy the Quarter Pounder with Cheese large Extra Value Meal, which comes with a large fries and large Coke (1,380 calories)....A 23% increase in price [for movie theater popcorn] provides 125% more calories."

Just to be clear: CSPI is saying that bargains are bad, that there is something sinister about volume discounts and package deals. McDonald's is practically giving away tasty meals to eager customers, and we should all be deeply troubled by that fact. Brownell and Horgen, who cite "From Wallet to Waistline" in their book, argue that food bargains amount to "consumer exploitation" because "people have biological vulnerabilities that promote overeating when large portions are available, a strong desire for value, and the capacity to be persuaded by advertising."

Junk Food Junkies

With sneaky corporations taking advantage of consumers in this way, litigation was inevitable. The most conspicuous booster of fast food lawsuits is George Washington University law professor John Banzhaf, a longtime proponent of suing our way to a better society who treats the epithet "legal terrorist" as a compliment. In the 1960s this self-identified "Nader of the cigarette industry" used the fairness doctrine (which Brownell wants to revive as a weapon against Big Food) to demand that broadcasters who carried cigarette commercials also provide time for anti-smoking spots, a legal strategy that ultimately led to the demise of tobacco ads on TV and radio. Like other anti-smoking activists, Banzhaf initially resisted the analogy between tobacco and food, telling The Washington Times in 1997: "I've heard it since 1969, when they said if we applied the fairness doctrine to cigarette commercials, there'd be anti-automobile ads and anti-McDonald's ads. But it never happened."

Five years later, Banzhaf was serving as an "informal adviser" to New York City attorney Samuel Hirsch, who filed the first two lawsuits in which obese people blamed fast food restaurants for making them fat. Hirsch's first client was a 56-year-old maintenance worker named Caesar Barber, who was five feet, 10 inches tall and weighed 272 pounds (giving him a BMI of 39). The main problem with Barber, who continued a diet consisting largely of burgers and fries despite a heart attack and warnings from his doctor, was that his stupidity was literally unbelievable. "They said, '100 percent beef.' I thought that meant it was good for you," he claimed after filing the lawsuit in July 2002. "Those people in the advertisements don't really tell you what's in the food. It's all fat, fat, and more fat. Now I'm obese."

Hirsch eventually dumped Barber in favor of two hefty New York teenagers who claimed to have eaten at McDonald's on most days of the week for years. That lawsuit, which Hirsch intended as a class action, was dismissed twice, the second time with prejudice, for failing to adequately state a claim. The first time around, in January 2003, U.S. District Judge Robert Sweet declared that "any liability based on over-consumption is doomed if the consequences of such over-consumption are common knowledge....If a person knows or should know that eating copious orders of supersized McDonald's products is unhealthy and may result in weight gain...it is not the place of the law to protect them from their own excesses. Nobody is forced to eat at McDonald's....Even more pertinent, nobody is forced to supersize their meal or choose less healthy options on the menu."

To counteract this presumption of individual responsibility, Banzhaf thought Hirsch should have ditched his weak claim about misleading ads in favor of the two arguments that Sweet's ruling seemed to identify as the most promising. Citing McDonald's fries and Chicken McNuggets as examples, the judge noted that people might be surprised by all the ingredients in some of the chain's products (although the information is available online and upon request in the restaurants). If the plaintiffs could show that such items were not what they seemed, he said, "it may establish that the dangers of McDonald's products were not commonly well known."

The other argument to which Sweet seemed receptive was that fast foods are addictive, a theme that Banzhaf, the self-anointed "spark plug and spokesman for this controversial movement," emphasizes in the press releases he e-mails to anyone who might mention him in print or on the air. (In what may be a first for him, Banzhaf turned down the opportunity to be interviewed for this article.) Banzhaf is quick to latch onto any study that can be used to suggest that certain foods trigger a physiological compulsion to overeat. In October, for example, he trumpeted an article in New Scientist that cited, based on a review of a dozen or so studies with rats, "a growing body of evidence" that "fats and simple sugars can act on the brain the same way as nicotine and heroin." He announced that he had "sent a legal notice to several large food companies suggesting that, in light of the growing evidence that eating fattening foods can produce addictive effects on the brain similar to nicotine, they may have a legal duty to warn their customers."

Such research does not tell us anything important about overeating that we didn't already know. As the psychiatrist Sally Satel noted at the AEI conference on obesity in June 2003, "virtually every pleasure we encounter is associated with surges in dopamine," and brain images "cannot distinguish between an irresistible impulse and an impulse that is not resisted." Just as we did not need brain scans to recognize that smokers often have difficulty giving up tobacco -- a fact that people have been noting for hundreds of years -- we do not need rat studies to show that people find eating pleasurable, often eat more than they initially intend, regret their overeating, and have trouble cutting back to lose weight despite the health risks and social costs of being fat. In these respects, eating high-calorie foods, like any activity that provides pleasure or relieves stress, can be addictive, leading to habits that are hard to break. But jurors are not likely to blame fast food chains for the familiar sin of gluttony unless they are led to believe that McDonald's, Wendy's, and Burger King pump their food full of magical chemicals that enthrall customers and keep them coming back for more.

Banzhaf suggests that such chains are the main cause of rising BMIs. In a May 2003 press release, he cited a study that he said found "the proliferation of fast food restaurants...is responsible for over 65% of the current epidemic of obesity." The study, a statistical analysis published by the National Bureau of Economic Research in October 2002, looked at restaurants in general, not just fast food. It found that "the increase in the per capita number of restaurants makes the largest contribution to trends in weight outcomes, accounting for 69 percent of the growth in BMI." In their conclusion, however, the authors introduced a cautionary note that Banzhaf conveniently ignored: "A literal interpretation of this result implicates fast-food and full-service restaurants as culprits in undesirable weight outcomes. But a very different interpretation emerges if one recognizes that the growth in these restaurants, and especially fast-food restaurants, is to a large extent a response to the increasing scarcity and increasing value of household or nonmarket time." In other words, economic changes such as greater participation in the labor market by women have increased the demand for fast, convenient meals. As the NBER's summary of the paper put it, "fast-food or convenience meals should rightly be considered as much an effect as a cause of American eating patterns."

Interestingly, the same study also found evidence that declines in smoking have contributed to rising BMIs, since people tend to gain weight when they give up cigarettes. Banzhaf failed to note this finding, perhaps because he's afraid fat people might start suing anti-smoking activists.

Heavy Burden

Although Banzhaf repeatedly refers to "five successful fat lawsuits" in his press releases, none of them involved a jury verdict. More to the point, none involved a plaintiff who blamed a company for his obesity. One case, which was initiated by some of Banzhaf's students at GWU and led to a $10 million settlement in 2002, faulted McDonald's for advertising that its French fries were cooked in vegetable oil while failing to mention that they were precooked in beef fat, an omission that understandably upset Hindus and vegetarians. It was a "fat lawsuit" only in the sense that it involved cooking fat. The litigation "victories" tallied by Banzhaf also include New York City's 2003 decision to ban soda and sugary snacks from public school vending machines, which was not part of a lawsuit settlement, and Kraft's decision to stop using hydrogenated vegetable fat in Oreo cookies, which was announced two months after a quickly withdrawn lawsuit filed in May 2003 by a San Francisco attorney who admitted the hazards of such fat were too well-known for him to win his case.

While Banzhaf's bragging needs to be taken with a tablespoon of salt, that does not mean food lawsuits will never take off. Victor Schwartz, a leading civil defense attorney and expert on tort law who has been advising the National Restaurant Association, an industry trade group, says such cases face formidable barriers, including the difficulty of arguing that a product is defective simply because consuming too much of it can be dangerous and the challenge of tracing a plaintiff's obesity to one company's food. But he notes that law firms are monitoring the issue and that a 2003 conference on food-related litigation organized by Banzhaf and Northeastern University law professor Richard Daynard (another anti-smoking veteran) was well-attended. State and federal "cheeseburger bills" aimed at protecting food sellers from liability -- one of which the U.S. House of Representatives approved by a 2-to-1 margin in March -- show the industry is worried. Recent decisions by McDonald's to reformulate Chicken McNuggets and to eliminate "supersize" French fries and soft drinks also can be seen as defensive responses to the litigation threat.