Fast Food or Fat Food: Food Manufacturer Liability for Obesity

HEADNOTE

Before the courts and juries extend liability beyond reasonable limits, proactive legislation can balance rights of claimants and the food industry

OBESITY contributes to the death of 300,000 people a year

in the United States; only the use of tobacco causes more preventable deaths.1 Overweight or obese persons are alleged to be at a heightened risk for a variety of serious and life-threatening illnesses.2 Obesity also is known to aggravate many pre-existing conditions, such as hypertension and elevated cholesterol.3 In 2000, roughly $117 billion went to treat the health problems of overweight or obese people, almost twice the fast-food industry's total revenues. As a result, in 2001, the U.S. Surgeon General, David Satcher, issued a "call to action" on obesity, stating that "there is much that communities can and should do to address these problems."4

Building on this foundation, legislators, regulators, nutritionists, government and consumer activists, and the plaintiffs' bar have launched an anti-fat movement similar to the national anti-smoking movement initiated by the U.S. Surgeon General Luther L. Terry in 1964. The most controversial component of this campaign is playing out in America's courtrooms, led by George Washington University law professor John F. Banzhaf III, who was a key figure in the tobacco litigation. In recent years, six lawsuits have tested the theory that those who make or serve fattening foods should be held legally liable for making people fat.5 Three were settled out of court.6 One was dismissed in the federal court for the Southern District of New York for failure to meet heightened pleading standards, with leave to amend.7 More are pending.