Why the 'Cheeseburger Bill' Is Hard to Swallow


Yesterday the House of Representatives once again passed the Personal Responsibility in Food Consumption Act, which purports to protect food sellers from liability for the consequences of their customers' overeating. I say "purports" because I'm not sure the bill (which has not been considered by the Senate yet) would make much of a difference in the sort of litigation that inspired it.

The so-called cheeseburger bill makes exceptions not only for violations of express warranties but for violations of state or federal law that result in excessive calorie consumption. The latter exception would apply to Pelman v. McDonald's, the case in which two overweight teenagers seek to blame the chain for their chubbiness. The suit was dismissed twice by U.S. District Judge Robert Sweet for failure to adequately state a claim, but it was revived by the U.S. Court of Appeals for the 2nd Circuit, which ruled that the plaintiffs could pursue their argument that McDonald's violated New York's Consumer Protection Act through deceptive marketing practices. The outcome will hinge on whether they can substantiate that allegation and show that it was the proximate cause of their portliness–both long shots, but permissible under the bill passed by the House.

Regardless of its practical impact, the bill relies on an overly broad interpretation of the Commerce Clause to justify meddling with state tort law. "The food and beverage industries are a significant part of our national economy," the bill says by way of constitutional justification. "The activities of manufacturers and sellers of foods and beverages substantially affect interstate and foreign commerce." That may be enough under the relevant Supreme Court precedents (if a marijuana plant in your closet is "interstate commerce," surely a cheeseburger at McDonald's is), but it shouldn't be.

In any case, the bill seems unnecessary, or at least premature. About 20 state legislatures have passed legislation discouraging Pelmanesque lawsuits, and so far there is no indication that state or federal courts are inclined to award damages based simply on the fact that fat people like to eat at certain restaurants. As far as I know, Pelman is the only pending lawsuit involving such claims, and here is how Judge Sweet reacted to it:

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.

If this is the general attitude on the bench, there may be no need for a legislative fix, let alone federal intervention.