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Fast-food sellers under fire for helping supersize people

One of the leading anti-tobacco legal activists has set his sights on a new target, the fat-laden fast-food industry.

By Victoria Stagg Elliott, amednews staff. April 21, 2003.

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John F. Banzhaf III, a professor of public interest law at George Washington University Law School in Washington, D.C., is best known for using lawsuits to make it harder to smoke -- whether seeking bans on tobacco advertising on radio and television or tobacco use during most commercial air flights. Last year, he turned his attention to a new public health crusade: The factors making us fat. He is an adviser to the lawyers bringing several cases against fast-food companies for making their clients overweight and unhealthy.

Question: How does what you have achieved with the anti-tobacco lawsuits make you think you can be successful with lawsuits against fast-food companies?

Answer: The basic principle has now been vindicated and duplicated, not just against smoking but against many other problems -- everything from environmental protection to handicapped rights.

Every study I've seen says that one of the two major causes of obesity is the proliferation of fast-food restaurants with their ubiquitous advertising and their giant portions. The other is less physical activity. Therefore, it seems to be only fair that fast-food companies bear their fair share of the responsibility -- including the $117 billion-a-year cost of the obesity epidemic.

Q: How are food issues different from tobacco issues?

A: Any amount of smoking is dangerous, but eating in moderation is not.

Nicotine is physiologically addictive. Although there is evidence that fatty and calorie-laden foods can produce addictive-like effects, it may not be in the same category.

Another very big difference, though, is that once the tobacco industry started getting sued and losing suits, they couldn't very well change and produce a safer cigarette. Fast-food companies can make a few very simple changes and largely immunize themselves from these lawsuits and, at the same time, make a significant change in obesity. They can provide clear and conspicuous disclosures of nutritional information including calories, fat and saturated fat as McDonald's is going to do in the United Kingdom. They can also provide warnings about the dangers of overeating or eating too often at a fast-food restaurant -- as McDonald's is already doing in France.

Q: Since food isn't addictive like tobacco, is it really fair to hold companies responsible for people's choices?

A: One of the turning points we had with tobacco was when we stopped trying to claim the tobacco company was solely responsible for the smoking of the person who got the lung cancer. Under modern law, there is divided responsibility. In a traffic accident you can have two or three or four different causes.

Under the law, each cause is responsible to the extent to which they contributed to the problem.

Particularly if you're dealing with an adult, the obese person bears some, maybe most, of the responsibility for their obesity. The question is should the fast-food company bear none. Our answer is they should bear their fair share.

Q: Isn't it obvious that fast food is unhealthy?

A: We have warnings for all sorts of dangers that are much more obvious -- for example, on stepladders and electric hair dryers -- because companies which fail to provide them have been held liable even concerning these well-known dangers.

When you get meals that in some cases have more fat or calories than one can safely consume in an entire day, it seems to me that they have an obligation to disclose that.

And, here, we're frequently dealing with children. What might be obvious to an adult may not be obvious to a 9-year-old or 12-year-old child.

Q: Who else might you pursue in your attempt to tackle the obesity problem through litigation?

A: We're looking at suing schools which receive a bounty for every sugary soft drink or fat burger they sell. We're looking at bringing legal action so that the government will permit health insurance companies to charge the obese more than the non-obese for health insurance. And there might be malpractice lawsuits against doctors.

A recent survey suggested that almost half of all physicians are not warning obese patients about the dire medical risks of obesity. My guess is, the first time some physician is held liable for malpractice because somebody died of a heart attack or a stroke or got type 2 diabetes, and that patient was not warned by the physician and not actively helped by the physician to lose weight, a lot of physicians will decide they are going to do a lot better at dealing with obesity.

Warnings from physicians are very important. Half of physicians out there are not warning patients about obesity. That's pretty dangerous -- to them as well as their patients.

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