Big food fight: when big tobacco was taken down by a rash of lawsuits, consumers were assured that other `bad' products wouldn't be targeted. But the fast-food industry appears to be next

0 Comments | Insight on the News, July 15, 2002 | by John Berlau

It was 1997, and the tobacco companies were on the ropes. Facing a rash of lawsuits from state attorneys general seeking billions of dollars in reimbursement for what they claimed were the Medicaid costs of smoking-related diseases, the companies were about to agree to an unprecedented settlement with the states. Under that settlement, the major tobacco companies would pay the states more than $200 billion, accept sweeping restrictions on cigarette advertising and pay $1.5 billion for an antismoking campaign.

While very few editorialists had much sympathy for the tobacco companies, many wondered what kind of precedents these lawsuits would set. If the government and plaintiffs' lawyers could manipulate the law to force makers of a legal product to cough up this kind of cash because tobacco is harmful to public health and costs the government health-care dollars, why couldn't other risky products, such as alcohol or fatty foods, also face the same kind of lawsuits in the years down the road? As INSIGHT reported in June 1997, "many also wonder if the demonizing of cigarettes will lead to a `slippery slope' in which caffeine, fatty food, chocolate and anything else the public-health community might deem bad or politically incorrect becomes subject to regulation or prohibition" [see "Fighting the Tobacco Wars," June 16, 1997].

Longtime antitobacco crusader John Banzhaf ridiculed this notion. Cigarettes were a uniquely dangerous product, he and other lawsuit supporters maintained. "We recognize that although alcohol is an addictive drug it is addictive only to a relatively small percentage of the population, whereas in contrast nicotine is an addictive drug which is addictive to most of the population," Banzhaf told this INSIGHT reporter at the time.

Banzhaf, a professor of law at George Washington University who mounted some of the first lawsuits against tobacco companies in the 1960s and was instrumental in getting smoking banned in most public places, also was quoted in INSIGHT'S sister daily, the Washington Times, as arguing that tobacco was a unique case. "The tobacco industry usually doesn't argue about what we do to them," Banzhaf told the Times in 1997. "They say, `Wouldn't it be horrible if it spread?' But there's no other industry in the United States that kills anywhere near 500,000 people a year."

The antitobacco lawyer continued, "I've heard it since 1969 when they said if we applied the broadcast Fairness Doctrine to cigarette commercials [to require TV stations to run antismoking ads] there'd be antiautomobile ads and anti-McDonald's ads. But it never happened."

That was then and this is now. Five years later, fresh from his victory over tobacco companies, Banzhaf is a leader of a movement of trial lawyers and public-health activists who are marshaling the strategies used against tobacco to go after fast-food restaurants and food processors that sell "fatty" food, candy, soft drinks and other consumables deemed politically incorrect. The leading chain of fast-food restaurants, McDonald's, states on its Website, "For both quality and safety, McDonald's has been a leader in setting and strictly enforcing high standards--often exceeding those established by industry and government." Yet, "Some of the same legal tactics, by which I mean both legislative and litigative, which worked so well against big tobacco could also work well against the issue of obesity," Banzhaf told INSIGHT in mid-June of this year. "I happen to think legislation would be a better way to go but, if as with tobacco the legislators don't legislate, the lawyers will litigate."

How does Banzhaf reconcile his new position with past statements implying that no other industry would be targeted in tobacco-type litigation? "I said that the argument the tobacco industry always made that anything that happens to tobacco is likely to immediately turn around and equally apply to dozens of other things simply isn't true. And it isn't, in fact," Banzhaf says. He quickly adds, "Obviously, no legal precedent lives in a complete vacuum."

Those who warned that other politically incorrect products would be targeted if the tobacco lawsuits were successful are not surprised, although they didn't think food would be targeted so quickly. Victor Schwartz, who has argued product-liability cases as both a plaintiff and defense attorney and now is general counsel for the American Tort Reform Association, says all the rhetoric about tobacco being unique was just a tactic to keep other businesses on the sidelines while tobacco was being pursued.

Schwartz tells INSIGHT: "They wanted to isolate the tobacco industry from the rest of the business community, so the rest of the business community would not worry that precedents that were used against tobacco would ever be used against them, particularly the alliance between the plaintiffs' lawyers and the attorneys general."

Sam Kazman, general counsel for the Competitive Enterprise Institute, says it's all part of a trend toward "the medicalization of social issues. That is, you take anything involving a lifestyle choice, you dress it up as a medical problem and people think `Ah ha, we need a public-health approach to this just like we take a public-health approach to epidemics.' Through that whole approach, you increase the notion that this really is appropriate for some government czar or regulation."