Congressional action may nip obesity suits in the bud

By Steve Stanek | Dec 8, 2004

Senator Harry Reid

Senate Majority Whip Mitch McConnell

Persons who are considering suing the food industry for allegedly contributing to their obesity may be running out of time.

The U.S. House of Representatives has already passed legislation to block such lawsuits, and the U.S. Senate is heading in the same direction, said Brendan Flanagan, director of legislative affairs at the National Restaurant Association, which supports the legislation. Thirteen states have already adopted legislation barring obesity-related lawsuits, he said.

"We have numerous reasons to be optimistic in 2005," Flanagan said. He cited House action earlier this year on H.R. 339, the Personal Responsibility in Food Consumption Act, sponsored by Rep. Ric Keller's (R-Fla.). That bill to preempt obesity-related lawsuits carried the House by a 276-139 margin.

Though the Senate adjourned for the year Dec. 8 without voting on S. 1428, the Commonsense Consumption Act, this companion bill to H.R. 339 is sponsored by some of the most powerful members of the Senate. On the Republican side, the lead sponsor is Senate Majority Whip Mitch McConnell (R-Kentucky). On the Democrat side, the lead sponsor is the new Senate Minority Leader, Harry Reid (D-Nevada).

Flanagan said he expects McConnell and Reid to reintroduce the bill early in 2005.

"Having Mr. McConnell and Mr. Reid as lead sponsors has heped get bipartisan support in the Senate, which is a must for legislation to pass," Flanagan said. As a result of Republican gains in the Senate in the Nov. 2 general election, Republicans have a 55 to 45 majority.

"We're that much closer to getting the 60 votes needed to avoid the dreaded Senate filibuster," Flanagan said. "If we can hold the supporters we do have and get just a couple more, we're close to getting the 60 we need. Having Sen. Reid as a lead sponsor is very important.

"On the House side, the bill enjoyed broad support from the public and the media," Flanagan said. "They understand these lawsuits are misguided and frivolous, and they understood the legislation better than other tort reform bills, which people often can't grab right off the bat."

The U.S. Department of Health & Human Services reports that more than half of American adults are overweight. The number of overweight or obese youngsters is also climbing. The government cites rising rates of obesity-related diabetes, heart disease, hypertension and other illnesses as reasons for concern.

Late last year the Centers for Disease Control and Prevention released a study indicating that obesity is responsible for nearly as many illnesses and deaths as cigarette smoking, though the government recently pulled back on its estimates, saying the earlier study exaggerated the health problems.

Restaurants, food processors, candymakers, soft drink distributors and anyone else who conceivably could be accused of contributing to obesity are potential lawsuit targets. Several lawsuits blaming corporations for an individual's obesity have been filed, though none has been successful.

For instance, in September 2003, a federal judge dismissed a lawsuit against McDonald's Corp. that alleged the company used misleading advertising to attract youngsters as customers, making them fat.

It was the second lawsuit by the plaintiffs. The original lawsuit was also dismissed, but the plaintiffs were allowed to file again with new information related to their advertising allegations. U.S. District Judge Robert Sweet ruled the revised lawsuit still did not meet minimum standards to proceed, and he barred the plaintiffs from filing another version.

Arguments as to the causes of America's expanding waistline abound. Many physicians and researchers point to lack of exercise as a main cause, driven in part by computer technology that requires less physical labor. Video games and other entertainments that keep people more sedentary than they used to be are also cited.

Others, though, blame the food industry, including restaurants that provide larger servings than they used to.

In June 2003, the Public Health Advocacy Institute (PHAI) met in Boston and announced the event was "intended to encourage and support litigation against the food industry." According to The Center for Consumer Freedom, participants included:

* Richard Daynard, a Northeastern University law professor who was one of the architects of tobacco litigation.

* John Banzhaf, a George Washington University law professor also known for his tobacco litigation.

* Kelly Brownell, a Yale psychologist who several years ago proposed the "Twinkie tax," punitive taxes on certain foods deemed not to be nutritious.

Keynote speaker was Marion Nestle, a New York University nutrition professor and author of "Food Politics," who argues that sellers of food products should be treated like sellers of drugs or tobacco.

Flanagan said those views have little support among consumers.

"There was a Gallup poll that showed 89 percent of Americans believe that restaurants should not be held liable for someone being overweight," he said. "We have seen several lawsuits where individuals have sued to hold the industry liable for their weight. None has succeeded. But we know there will be more, because the people behind the filings have said there will be.

"It takes one judge to upset the apple cart and rewrite tort law as we know it," Flanagan said. "That's why we think it's important for Congress to reassert that judges should not be dictating health policy."

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