The war on fat: is the size of your butt the government's business?

Reason, August-Sept, 2004 by Jacob Sullum

Banzhaf suggests that such chains are the main cause of rising BMIS. In a May 2003 press release, he cited a study that he said found "the proliferation of fast food restaurants ... is responsible for over 65% of the current epidemic of obesity." The study, a statistical analysis published by the National Bureau of Economic Research in October 2002, looked at restaurants in general, not just fast food. It found that "the increase in the per capita number of restaurants makes the largest contribution to trends in weight outcomes, accounting for 69 percent of the growth in BMI." In their conclusion, however, the authors introduced a cautionary note that Banzhaf conveniently ignored: "A literal interpretation of this result implicates fast-food and full-service restaurants as culprits in undesirable weight outcomes. But a very different interpretation emerges if one recognizes that the growth in these restaurants, and especially fast-food restaurants, is to a large extent a response to the increasing scarcity and increasing value of household or nonmarket time." In other words, economic changes such as greater participation in the labor market by women have increased the demand for fast, convenient meals. As the NBER's summary of the paper put it, "fast-food or convenience meals should rightly be considered as much an effect as a cause of American eating patterns."

Interestingly, the same study also found evidence that declines in smoking have contributed to rising BMIs, since people tend to gain weight when they give up cigarettes. Banzhaf failed to note this finding, perhaps because he's afraid fat people might start suing anti-smoking activists.

Heavy Burden

Although Banzhaf repeatedly refers to "five successful fat lawsuits" in his press releases, none of them involved a jury verdict. More to the point, none involved a plaintiff who blamed a company for his obesity. One case, which was initiated by some of Banzhaf's students at Gwu and led to a $10 million settlement in 2002, faulted McDonald's for advertising that its French fries were cooked in vegetable oil while failing to mention that they were precooked in beef fat, an omission that understandably upset Hindus and vegetarians. It was a "fat lawsuit" only in the sense that it involved cooking fat. The litigation "victories" tallied by Banzhaf also include New York City's 2003 decision to ban soda and sugary snacks from public school vending machines, which was not part of a lawsuit settlement, and Kraft's decision to stop using hydrogenated vegetable fat in Oreo cookies, which was announced two months after a quickly withdrawn lawsuit filed in May 2003 by a San Francisco attorney who admitted the hazards of such fat were too well-known for him to win his case.

While Banzhaf's bragging needs to be taken with a tablespoon of salt, that does not mean food lawsuits will never take off. Victor Schwartz, a leading civil defense attorney and expert on tort law who has been advising the National Restaurant Association, an industry trade group, says such cases face formidable barriers, including the difficulty of arguing that a product is defective simply because consuming too much of it can be dangerous and the challenge of tracing a plaintiff's obesity to one company's food. But he notes that law firms are monitoring the issue and that a 2003 conference on food-related litigation organized by Banzhaf and Northeastern University law professor Richard Daynard (another anti-smoking veteran) was well-attended. State and federal "cheeseburger bills" aimed at protecting food sellers from liability--one of which the U.S. House of Representatives approved by a 2-to-1 margin in March--show the industry is worried. Recent decisions by McDonald's to reformulate Chicken McNuggets and to eliminate "supersize" French fries and soft drinks also can be seen as defensive responses to the litigation threat.