Litigation and Obesity Symposium Transcripts Available

Public interest lawyers and industry representatives debated the merits of
using litigation to address obesity at a December 2010 symposium hosted
by George Mason University, and edited transcripts have recently been made
available in the Journal of Law, Economics & Policy. Among the speakers was
John Banzhaf whose law students at George Washington University have
long focused on “public interest litigation,” including lawsuits and regulatory
initiatives against the interests of cigarette manufacturers.

Banzhaf claims that a reporter’s question in 2002 about using litigation as a weapon in other arenas, such as concerns over obesity, led to the “modern fat litigation movement.” He contends that litigation and the courts are a legitimate tool to effect policy change, arguing that until corporations and their customers are forced to pay the full costs of their products, changes will not be made. Banzhaf also discussed the 10 lawsuits or threats of litigation that convinced food companies to reformulate their products in recent years; most involved charges that the companies failed to accurately disclose information about their products on food labels. He also claimed a victory in Brazil, involving an order against McDonald’s to pay a former manager $17,500 for the 65 pounds he gained while in the company’s employ.

During a panel discussion, industry attorneys and a former Federal Trade Commission (FTC) policy planning office director argued that litigation will not affect the incidence of obesity. They stated, among other matters, that the court system “is not a satisfactory vehicle for creating public policy,” tobacco litigation is an inapt model for obesity-related litigation, and advertising does not cause obesity. They also discussed how personal responsibility plays a large role in whether people eat too much and exercise too little. The former FTC director discussed research the agency had conducted indicating that children actually watch less commercial television today than they did in the past and are exposed to fewer food commercials.

Stephen Gardner, who brings litigation on behalf of the Center for Science
in the Public Interest against the industry, also participated in the panel
discussion. He spent some time discussing the lawsuit recently filed against
McDonald’s Corp. in California to stop the company from selling its Happy
Meals® with toys that Gardner contends “are there as an attempt to cut into
parental responsibility, to cut into parental rights, by going around the parent,
no matter how hard they try to prevent it, and marketing straight to the kids.”
Banzhaf provided a rebuttal to industry claims, saying “My simple answer is
déjà vu: I’ve heard all of this over, and over, and over again. I heard it twenty
years ago when we started suing tobacco companies.” He stated that he will
continue to litigate public health issues because “we have proven over, and
over again, that this stuff works.”