Can we sue our own fat asses off?

Flush from their victory against Big Tobacco, activists are now gunning for the purveyors of junk food.

By Megan McArdle

May 24, 2002 | We celebrated World Health Day last month. The Centers for Disease Control and Prevention (CDC,) one of the official U.S. sponsors of World Health Day, says it decided to make this year's theme "Move for Health," which seems to be its polite way of telling us to haul our fat carcasses out of the Barcalounger and get some exercise.

The CDC probably felt it had to do something. A recent report from the surgeon general tells us what we already knew if we'd spent any time at a shopping mall: as a nation, we're pushing maximum density. Headlines called it "an epidemic of obesity," and the report certainly threw around some epidemic-sized numbers. Sixty-one percent of adults are overweight or obese, and the number of obese children has tripled in the last 20 years. Underneath the eye-popping statistics was an even scarier assertion: All that extra padding is costing us a lot of money.

$117 billion, to be exact, is the surgeon general's estimate for the cost of healthcare and lost wages from obesity-related illness. And that doesn't include any money spent at The Forgotten Woman or Jenny Craig.

In the face of this, declaring April 7 "Move for Health Day" seems hardly adequate.

But when it comes to weight loss, our public efforts mirror our private ones. Which is to say that we're happy to do the easy things: advertising campaigns and feel-good gestures like World Health Day. Unfortunately, the easy gestures aren't much more effective than the magic weight-loss pills or electric abdominizer gizmos gathering dust in our closets. After all, if advertising could make people embark on a fitness regime, surely the steady barrage of emaciated models in every commercial or print ad would have done the trick. Yet when it comes to the harder, more effective choices, such as raising the cost of food, or ancillary goods like healthcare, our will fails us. We bypass the obvious in search of a painless solution.

Lawyers and activists, flush from the tobacco victories, think they have found one: Sue the companies who sell us the junk we overeat. They talk about recovering the costs of obesity-associated diseases. But the real hope is that by going after the companies, they can force changes in price and marketing that will, in turn, force us to stop eating so much junk food. Corporations, after all, are much easier to regulate than the fractious individuals targeted by most public health campaigns.

There are a lot of reasons why the new legal strategy is unlikely to work. Fast food isn't as easy to pinpoint as a killer as tobacco, and legal experts can point to an additional array of factors that will make finding corporate scapegoats for obesity far more challenging than bringing Philip Morris to heel. There are a host of legal issues, they say, that will make it difficult to even get such cases heard in front of a judge. And aside from legal strategems, successfully suing the likes of McDonald's and KFC will require a dramatic shift in the way the public thinks about overeating -- taking the focus off the individual's responsibility for what he eats, and placing it on those corporations.

But we may be seeing the beginnings of that shift in two recent books: "Fast Food Nation," by Eric Schlosser, and "Food Politics" by Marion Nestle. Both have advanced the argument that the way food companies manufacture and market their products makes them bear serious responsibility for our current crisis. And now George Washington University Law Professor John Banzhaf, a veteran of the tobacco battles, has publicly declared that he thinks it possible to sue companies like McDonald's for misleading advertising, for failure to warn about the health dangers of their products and, if public opinion swings his way, for, well, making us fat.

If Banzhaf is right, we should all be nervous. Because if such cases do make it to court, they could be devastating. The economic costs alone are potentially staggering, and not just to the companies involved; the increased liability risk to all companies would almost certainly mean rising insurance premiums and interest rates, lowered profit margins and stifled innovation for fear of litigation. Not to mention the cost to our sense of justice. If you can't be held responsible for what you put in your mouth, what are you responsible for?

Next page: When you can't regulate, litigate!