HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Sunday, July 10, 2005

The Food and Restaurant Lobby Has Had Great Success In Preventing Obesity Lawsuits

Melanie Warner of the N.Y. Times reports that the food and restaurant companies have effectively waged an aggressive campaign to thwart lawsuits related to obesity and related health problems.  The National Restaurant Association, based in Washington, and its 50 state organizations have led the campaign with lobbyists for food companies and restaurants in each state helping to write the legislation and get the bills through the state legislatures.  After several attempted lawsuits to hold food companies responsible for America's obesity problem (such as Pelman v. McDonald's), food and restaurant companies have had great success in preventing these types of lawsuits by the passage of "commonsense consumption" laws. Twenty states have enacted these kinds of laws and eleven more states have legislation pending.  Although each of these laws is drafted with slight variations by lobbyists and congresspersons within the state, they basically prevent lawsuits seeking personal injury damages related to obesity from ever being tried in a court.  Besides these commonsense consumption laws, the class action bill signed by President Bush will most likely make it more difficult for lawyers in obesity cases to win large awards as seen in tobacco cases.  The Class Action Fairness Act (Pub. L. No. 109-2) will force class-action lawsuits with plaintiffs living in a state different from the defendant or those seeking more than $5 million in damages into federal court where large awards are less common than in state courts. 

Many executives and restaurant owners personally lobbied state members of Congress by making in-person visits, testifying at hearings, and directing campaign contributions to specific lawmakers.  The N.Y. Times reports that executives from Kraft and Coca-Cola personally showed up in Texas to lobby for the commonsense consumption bill, which was signed into law last month.  The Institute on Money in State Politics, a nonpartisan research group, reports that the food and restaurant industry gave a total of $5.5 million to politicians in the 20 states that have these laws shielding companies from obesity liability.  Michael Jacobson, executive director of the Center for Science in the Public Interest, calls this highly organized and effective lobbying effort "shameful" for trying to get special exemptions from lawsuits.  He remarks that "if someone is saying that a 64-ounce soda at 7-Eleven contributed to obesity, that person should have his day in court... If it is frivolous, the courts are accustomed to throwing those out."   On the contrary, Tom Foulkes, director of state relations at the National Restaurant Association, says that 89 percent of the American people say they do not support obesity lawsuits against fast-food companies. Peter Meersman, president and chief executive of the Colorado Restaurant Association says that "We wanted to makes sure that frivolous lawsuits like this never [make] it to the discovery stage, which is where these things get expensive for businesses."  Even though public opinion is not currently in favor of obesity litigation, Professor Banzhaf of GWU Law School says that the situation for tobacco was similar 15 years ago when people began suing cigarette companies for making smokers sick.  He says that "people changed their minds when documents started to come out about how tobacco companies misled customers about the alleged health benefits of light and low-tar cigarettes... Similarly, people will start to realize that Ronald McDonald is not their friend." 

Many others are also concerned over this type of overt and powerful corporate lobbying.  Larry Noble, executive director of the Center for Responsive Politics says that "It's unnerving to think that public laws are being crafted by corporate interests that simply hand language over to a lawmaker to insert in a bill."  Mr. Meersman drafted the Colorado language with the input and approval of such restaurants as Arby's, Fatty's Pizza, Outback Steakhouse, and Texas Roadhouse. 

Currently, the National Restaurant Association is working on the national "cheeseburger bill"  with Representative Ric Keller (R-Florida) and Senator Mitch McConnel (R-Kentucky).  This bill, would prevent obesity lawsuits from going forward in either federal or state courts.  It is currently stalled in the House. 

Richard Daynard, a Northeastern University School of Law professor and founder of the anti-tobacco movements says that trial lawyers will not be deterred.  "Rather than seeking personal injury damages for the consequences of obesity, there will be lawsuits based on state consumer protection laws... There's a lot of deception in the marketplace and a lot of it is relevant to the obesity epidemic.  But here we don't have to prove anyone got fat." Posted by Lindley Bain, SMU 3rd-year student.

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