Dr. Diana Berger, a public health expert specializing in obesity, notes that there are two obvious ways to make a difference in what people eat, both of which will require legislation or litigation to enact. The first is closing the information gap: letting people know about the 1,200 calories before they order their meal. And the second is what any economist could have told you: Raise the price. We turn to fast food, after all, not because it's good, but because it's fast and cheap.
But trying to make such a change legislatively is tough. In California, where they'll try anything, a state legislator has introduced a bill to put a 2-cent tax on every can of soda. Now, imagine yourself in the 7-Eleven, your hand hovering between the bottled water and the carbonated sugar syrup, paralyzed by indecision. Suddenly you notice that the can of soda is 2 cents more. Decision made. You grab that bottle of spring water and march it triumphantly to the register.
You get my point: The proposed tax is too small to do much good. Oh, sure, there will be someone who doesn't have the extra coins on the day the "give a penny, take a penny" jar is out of service. But when 61 percent of a nation as rich as ours is overweight, adding 2 cents to the price of a soda is like rearranging the deck chairs on the Titanic.
Stronger measures are bound to meet stiff opposition. Every measure designed to tax that 61 percent into giving up their high-calorie treats will catch the almost 40 percent who aren't overweight in its dragnet -- which by my calculations makes almost 100 percent of voters eager to get rid of the politicians who made them pay extra for their Big Mac attack.
Which brings us to litigation. When the tobacco suits were first brought, critics charged that the legal reasoning behind them could be applied to almost any product that was bad for you, like, say, fast food. At the time, the plaintiff's attorneys said that this was ridiculous, a bit of grandstanding from tobacco industry apologists. Now that an anti-tobacco lawyer is training his sights on fast food, however, it seems that the slippery slope really is steep -- and dangerous. All the legal experts I talked to agreed on one thing: After tobacco overturned years of legal precedent, you can't say any lawsuit is impossible.
"After all," said David Leebron, dean of Columbia Law School and a specialist in torts, "the great mystery of the tobacco suits is why they settled. The law seemed to be on the side of the companies." He points to public opinion and government intervention as major forces in the capitulation. As state governments began changing their laws to make it easier to sue, and state attorneys general got involved in the suits, the companies' risks began to rise dramatically, even as the public's opinion of them declined.
Companies manage risk by weighing the probability of a given event, such as an earthquake or a windfall profit or, yes, a lawsuit, against the money to be gained or lost. Such calculations tend to break down, however, when a single event is both unpredictable and catastrophic; that's why frightened insurance companies stopped offering terrorism coverage in the wake of 9/11. That's also why tobacco companies seem to have decided to settle. With lawsuits piling up and no end in sight, they had to face the risk that, even though the law was on their side, a jury might return a verdict that would bankrupt them. This cataclysmic possibility made even an expensive settlement attractive. If such suits could be brought against the food industry, they could follow a similar course.
So the question is: Can such suits get a toehold?
Banzhaf is cautiously optimistic. He describes four different kinds of suits that could be brought, ranging from easy to difficult. The first and easiest kind is for false advertising or labeling. In fact, such suits are already being brought, notably against the makers of Pirate's Booty brand snacks, for allegedly misrepresenting the fat and calories in their product. Another, slightly more challenging type is suing for misleading advertising; sue the manufacturer of, say, Fruity Nutrition Puffs for implying that their sugar-kibble is healthy. More difficult still are suits for "failure to warn": sue McDonald's for not telling you the calorie and fat content of that super-sized Big Mac meal they're trying to sell you. (The answer, by the way, if you order a diet soda and no dessert, is 1,200 calories and 63 grams of fat. No wonder we're gaining weight.)
But it is the fourth category of lawsuits that presents the possibility of making radical changes in the food industry, and thus radical changes in the way we eat: suing the companies to recover the costs of our national fat problem. Such suits would be very difficult to bring. But they're also the most likely to actually make a dent in our waistlines.
Litigation lets public health advocates sidestep the messy process of attempting to regulate bad behavior and forces companies to make the changes in marketing and price that Dr. Berger suggests will change our habits.
If, that is, courts will allow the suits to be brought.
Next page: Why it won't work unless the public buys in