PHAI Attorneys Discuss “Cheeseburger” Bills and Obesity-Related Lawsuits
Public Health Advocacy Institute (PHAI) Staff Attorney Cara Wilking and President Richard Daynard, a self-described “strategic litigation expert with a focus on combating the epidemics caused by tobacco and obesity,” have co-authored an article titled “Beyond Cheeseburgers: The Impact of Commonsense Consumption Acts on Future Obesity-Related Lawsuits.” 68 Food & Drug Law Journal 229 (2013).
Beginning with the premise that “[a]ffirmative litigation is an important tool in the public health toolkit to recover healthcare costs stemming from harmful commercial practices and to prevent future health harms,” they provide a detailed analysis of the “Common Sense Consumption” acts (CCAs) enacted in 25 states to shield the food industry from civil liability for obesity-related harms allegedly caused by the long-term consumption of food. According to the authors, the National Restaurant Association took a leadership role in getting the measures before state legislatures.
Noting that CCAs “have yet to be meaningfully tested in the courts and that is where their ultimate scope will be determined,” the authors observe that a number of them limit obesity-related claims brought by state attorneys general, who, they contend, “play an important role in maintaining the integrity of food labels.” They also suggest that CCA legislation is not necessary to curb frivolous obesity-related litigation, because such litigation is extremely expensive, has been brought only twice by one attorney and has been unsuccessful. Contending that state laws apportioning civil damages and proscribing frivolous lawsuits are adequate to curtail frivolous obesity cases, they conclude that the point of CCA proponents “was not to prevent frivolous litigation, from which industry already had plentiful protection, but rather to limit legally and factually sound litigation, which might eventually have harmed industry’s bottom line and forced it to change its practices.”
The article suggests that plaintiffs can still craft claims that sidestep CCAs “by limiting the alleged harms to simple restitution for the cost of the food products purchased as a result of the alleged illegal conduct and any available statutory damages. While cases structured this way would be much too expensive to bring on an individual basis, class actions are possible and could be promising to protect citizens in CCA states from unlawful food industry conduct.” Research for the article was supported by a National Cancer Institute grant.
In a related development, a CCA proposal (SB 12) that was introduced during a special Oklahoma legislative session on August 30, 2013, was signed into law by the governor on September 9. It is intended to “prevent frivolous suits against manufacturers, packers, distributors, carriers, holders, sellers, marketers or advertisers of food products . . . for any claim arising out of weight gain, obesity, or a health condition associated with weight gain or obesity.” It applies to all pending claims and those filed after its enactment “regardless of when the claim arose.”
