Posted
September 17, 2004
Obesity
Lawsuits Duplicate Strategy of Tobacco Torts, Levy Says
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| Bob Levy, left, argued that litigation
by states against the food industry would be a "shakedown." Law
professor Larry Walker responded to Levy's lecture by noting that
tort litigation serves as an effective private protector of consumer
interests. |
Lawsuits against the food industry are following the pattern of tobacco
litigation, said Bob Levy, Senior Fellow in Constitutional Studies
at the Cato Institute, at an event sponsored by the Federalist Society
Sept. 15. States might contract with private attorneys again to win
a massive legal settlement—this time to pay for obesity-related
medical costs incurred by Medicare and Medicaid. Private plaintiffs
are now looking to lawsuits instead of taking responsibility for their
actions, Levy suggested, and the cases could lead to further government
regulation and less citizen choice.
The tobacco cases “were just the first step down a pretty slippery
slope,” Levy said. He said he predicted six years ago the tobacco
lawyers would attack other products, likely targeting the food industry. “Now
we know that the risk is real. The risk is imminent.” The states
are “eager to refill their depleted Medicare coffers.”
Levy mocked the claims of plaintiffs suing the fast-food industry
who said they didn’t know the food was bad for them (one memorably
remarked that he thought his hamburgers were healthy because they were
made of 100-percent beef).
In January 2003 a federal judge threw out a class-action suit filed
on behalf of obese children against the fast-food industry, but left
enough room in his dismissal to encourage further claims, Levy said. “If
the tobacco litigation holds up, it will be not just private actors,
but states.”
Signs are mounting that more lawsuits are on the way. Levy said a
Northeastern law professor held a strategy session for nearly 100 attorneys
interested in suing big food. The nonprofit Physicians Committee for
Responsible Medicine announced that obesity caused $61 billion each
year in U.S. medical costs, and suggested the fast-food industry be
held accountable.
There is “an insatiable appetite for social engineering, and
of course, the big bucks that go along with it,” Levy said.
Plaintiffs will have to prove that they bought fatty foods and were
misled by ads, that they are physiologically addicted, that the food
causes obesity, and that obesity is responsible for their medical problems.
On the side of the food companies, the data showing connections between
fat and disease are unreliable because other competing factors like
genetics can complicate the picture. Blaming fatty foods alone is “virtually
impossible,” Levy said.
“When I was young, the nutritional gurus were pushing steak
and eggs,” he said, and after that they promoted potatoes and
pasta. So who should be sued, he wondered—cattlemen or Idaho
potato farmers?
“The trial lawyers have a ready response, and that is, sue all
of them.” Levy played devil’s advocate: “If fatty
foods are injurious, let’s make sales to kids illegal.” But
banning sales of candy to juveniles, for example, likely wouldn’t
receive public support.
Levy denounced the idea of having private attorneys act as government
subcontractors. He equated it to policemen receiving incentives for
writing speeding tickets. “The potential for corruption is enormous,
and yet that was the tobacco model,” he said. Contingency-fee
contracts between the state and private attorneys, like those used
in the tobacco litigation, should be illegal, he said. The ultimate
aim of the tobacco litigators and class-action lawsuits blaming fast
food is “not to go to trial, but merely to go to negotiations.”
Levy said laws should be enacted by legislators, not attorneys or
courts who are responding to failed legislation. In 1919, lawmakers
believed a constitutional amendment was necessary to prohibit the sale
of alcohol, but now drug control is entirely statutory, he pointed
out. The FDA can ban products, but with food, you only need a lawsuit
to bypass the legislative branch.
The House of Representatives has weighed in on the lawsuit debate
by proposing legislation blocking obesity-related lawsuits in federal
and state courts. But where in the Constitution does the national government
have the authority to tackle obesity—and do it in state courts
also? “Not every national problem is a federal problem,” Levy
argued.
Proposals for reform are never far behind the explosion of torts. “I
sympathize with those goals,” Levy said, but commercial laws
do not permit Congress to commandeer state courts. The commerce clause,
which defines congressional power to regulate interstate commerce,
is often used to push social programs, he said. But none of the fast-food
lawsuits has reached a jury yet, so congressional action is premature.
He suggested Congress might preclude suits affecting business outside
the state in which the lawsuit is filed. “A sensible rule like
that would give firms an exit,” he said. The “choice of
law” doctrine determines which state’s laws will control
litigation in a national class action suit, but Congress could enact
a federal choice of law rule, making the location of the business determine
which laws apply. There might be a race for companies to look for the
state with the most favorable tort laws, but voters will want adequate
redress too. State governments would aim to please both parties, assuming
they want to attract businesses. The fixes to the tort problem can
be procedural, Levy said, and connected to the federal function to
ensure state sovereignty doesn’t extend beyond the state’s
borders. But however real the problem, if there is no authority imbued
by the Constitution, the federal government must step aside. If Congress
claims it can regulate anything that affects anything that crosses
state lines, then federal lawmakers effectively control everything. “My
preference is to restore sanity to tort law,” he said.
Law professor Larry Walker responded to Levy’s argument by agreeing
that causation may be difficult to prove in fast-food torts. Wisconsin
prison guard Don Gorske recently broke the Guinness world record by
eating his 20,000th Big Mac sandwich. But he’s in excellent health
because “he has been walking to work both ways and eating little
else except one or two Big Macs a day.” The story highlights
how unlikely fast-food lawsuits are to be successful, Walker suggested,
because proving causation is almost impossible.
“I don’t think this is a serious threat,” he said. “It’s
very, very unlikely—because of the hurdle [of causation]—to
be the same as tobacco.”
Walker pointed to the toxic-tort standard of causation: “at
core is the requirement…that there be some connection between
a medical ailment that has cost the plaintiff money and the allegedly
toxic substance.” Two types of causation must be proven: general
causation, in which an expensive, complicated epidemiological study
is required to show a chemical can cause medical harm; and secondly,
that the food or chemical caused a specific medical problem. “It’s,
plainly speaking, extraordinarily difficult,” he said.
Walker said the “so-called trial lawyers” have brought
positive impacts to consumers. “We have the very finest consumer
protection apparatus in the world,” he said, not because of the
government, but “we have it chiefly because of the private bar.” Private
attorneys supply the kind of daily analysis and constant vigilance
of a sort no government could possibly apply, he said. “The virtue
of that system...is because it’s private. It’s privatized.
It’s market-driven.” Torts focusing on a particular product
don’t last because businesses respond to litigation by making
their products safer, and lawyers move on. A government agency would
just monitor a product forever and likely would be more expensive,
Walker said. Even if Americans are getting too much consumer protection,
legal incentives to file torts should be reduced only modestly.
Levy responded that the private system Walker described cost about
$7,700 per hour in the tobacco litigation case, in which lawyers received
30 percent of the settlement of $246 billion. There’s evidence
that lawyers working on the suit in Texas earned a hefty $92,000 per
hour. Consumers “surely can be protected at less than $92,000
an hour. I would do the job for $90,000.”
Responding to Walker’s assertion that individuals must show
the food made them ill, Levy said states simply eliminated private
causation in the tobacco cases. “All you had to show was generalized
statistics,” he said. The states and their contracted lawyers
also retroactively abrogated the traditional rules of tort law, he
said, when they removed the assumption of risk from the arsenal of
weapons the tobacco companies could use. He noted the Maryland legislature
admitted they changed centuries of precedent in order to ensure a win.
Levy suggested Secretary of Health and Human Services Tommy Thompson
may have further paved the way for food-related lawsuits when he decided
that obesity will be considered a disease, opening the door for Medicare
and Medicaid to pay for treatment. Levy argued that taxpayers have
a right to demand responsible behavior from people getting Medicare
or Medicaid benefits. Allowing food lawsuits to go forward further
sends a warped message to children that they can foist their conduct
off on someone else.
In the end, consumers may not always be protected by massive settlements,
Levy suggested. The tobacco litigation turned out to be a sweetheart
deal for all parties: The tobacco companies ensured they wouldn’t
face increased competition by including language in the settlement
requiring uninvolved tobacco companies to pay the same damages for
25 years, with the net result that smaller companies couldn’t
compete by cutting prices. The tobacco companies involved in the settlement
made their money back by raising prices, and the people who bore the
costs were those who weren’t represented at the negotiating table—the
smokers. Levy said the collaboration between private companies, private
lawyers and the states was “fearful.”
Walker said the private attorneys assumed risk as well when taking
the case because they could have lost.
Levy retorted, “Who do you think won the bids [to work on the
lawsuit]?”—the attorneys who were bankrolling the officeholders.
He said the state does not need help to get access to the legal system,
and thus does not need private attorneys.
In response to a question about the food industry’s reaction
to looming lawsuits, Walker said the fast food industry has modified
its behavior only slightly—for example, McDonald’s now
includes a pedometer with some meals, but “they desired for business
reasons to make that adjustment.” In response to the argument
that causation was dropped from state laws in the tobacco cases for
the advantage of the plaintiffs, he noted that “you would find
that the causation standards employed by the EPA are much, much less
demanding.”
• Reported by M. Wood
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