Briefing Report: Obesity - Personal Responsibility vs Trial Lawyers' Pursuit of Deep Pockets

Thursday, May 22, 2014

A short time ago an article discussed a scheme to make the food business bear the costs of obesity.  Twenty years ago the villain was “big tobacco.”  Now cleverly it is “big food.” Think of the “Stay Puft Marshmallow” man in “Ghostbusters.” There are trial lawyers trying to induce states to make the food industry pay for soaring obesity-related health care costs.  The 1990s tobacco litigation allegedly sought to recoup states’ healthcare costs for treating the diseases consequent from using tobacco products. That litigation resulted in hundreds of billions of dollars in settlements with 46 states, a ban on cigarette marketing to young people and the Food and Drug Administration stepping in to regulate tobacco products.  It is easy to expect that childhood obesity will garner similar focus and sympathy.  But can the trial lawyers work their magic again?  Will they find their next truckload of gold at the end of the rainbow?

A firm of trial lawyers sent proposals to Attorneys General from California to Mississippi explaining how suing “big food” could help their states close budget gaps as billions in Medicaid expenditures eat a growing share of tax revenues (no pun intended). Getting a piece of the huge costs of Medicaid would be a boon to cash-strapped states.  What they propose is simple, transparent and beguiling -- find some industry with large financial assets, tag that industry with “responsibility” for a portion of a state’s total Medicaid costs and get a piece of that back to help close the budget shortfalls.

Some observe that the central argument is that food and beverage companies have contributed to the nation’s obesity crisis, and they should pay for the costs of that portion. They are presumably responsible because their practices and products lead people to eat too much.  Eating too much causes obesity in some.  A significant group of people in each state has their medical care subsidized by the state. Thus, Medicaid costs are too high because of the food companies.  Therefore, food companies need to bear some part of those costs. Got that?

The pitching law firm has allied with a number of well-known obesity and diabetes researchers.  One medical advocate believes litigation should zero in on diabetes.   The diseases related to obesity are expensive, among them diabetes and cardiovascular problems.   The claim is made that about 75 percent of all the packaged foods in U.S. supermarkets contain added sugars; and therefore policy should change.  The battle cry has sounded. To the ramparts - fighting peoples’ struggle with food companies!  Remember the good old days of the battle against tobacco!

However, what is missing is that the food companies, unlike the tobacco industry, have not asserted that eating too much food is not harmful.  Besides, unlike tobacco, there are good and healthy ways to consume food.  After all, tobacco companies lied about the health effects of their products for decades.  No such denial exists for food.

Currently, there are the hundreds of cases concerning labeling and marketing disputes, many of them about the term “all natural.”   Some speculate that the focus will shift eventually to “food addiction,” a theory pioneered by former FDA Commissioner David Kessler.  He posits that if certain fats, sugars, and salt were “addictive,” and companies nonetheless proceeded to market products containing those nutrients, the consumer class action bar could attempt discovery in hoping to find company documents that validate Kessler’s addiction theory.  Are they fantasizing that the food companies knew of the addictive properties and suppressed the information? Do these medical advocates and lawyers dream every night of finding the company scientist willing to expose a food industry fraud as dramatic and corrupt as that uncovered by  Russell Crowe’s character in the 1999 movie “The Insider?”

The proposal is for the trial lawyers to represent states in the battle against the food business as they did against tobacco in the 1990s. They will stand ready to bear costs of the litigation, to some extent, but hope to participate in the attorneys’ fees that billions of dollars of recoveries would create. The proposal is questionable because it would rely on a contingency fee agreement, which allows a private firm to do legal work for attorneys general offices in exchange for a cut of the settlement. It’s an increasingly common practice because it allows AG offices to reward the trial bar and tackle expensive litigation without taking as much risk.  The ongoing lead paint litigation followed the tobacco stratagem, for example.  The Chamber of Commerce Institute for Legal Reform objects to these arrangements as “[p]ay-to-play relationships between [plaintiff’s attorneys and attorneys general] that exchange campaign contributions for lucrative government lawsuit contracts mean the food industry has a big target on its back.”

Will children be the focus? Sure!  Consider for a moment that childhood obesity rates remain high. Overall, obesity among our nation’s young people, aged 2 to 19 years, has not changed significantly since 2003-2004 and remains at about 17 percent.  One physician observes that looking at the risk factors for obesity, including poor eating habits and inactivity, provides lots of other people to blame.

1] Kids are less active today because they spend far more time in sedentary activities in front of the TV than any other generation. Perhaps we should blame television and video game producer and the TV networks. 2] Fast food is still a good target, with high calorie and high fat super-sized meals. 3] Drinking a lot of soft drinks and sugary “fruit” drinks are also linked to obesity, so maybe we can blame Coca Cola and Pepsi. 4] Super-sizing portions didn't start at McDonald's. Didn't that all start with the mega drinks or Big Gulps at 7-Eleven? 5] Schools, which allow students to buy snacks and soft drinks from vending machines and don't always require physical education classes, might also be partly to blame. 6] Doctors, who don't do enough to encourage breastfeeding, which can decrease a child's risk of becoming overweight later in life, and who don't educate parents about healthy lifestyles might also be partly to blame. And the list goes on and on.

According to a survey of parents by ACNielsen: 1] only 1% of parents blamed manufacturers 2] 7% blamed advertising on TV, etc 3] 9% blamed the child and 4] 10% blamed fast food companies.  Even recently, two thirds of parents blamed themselves. After all, parents are the only ones that have control over all of these things, especially with younger kids. A parent’s role is to guide healthy food choices, both at home and when eating out. Parents can limit TV watching and time spent playing video games, and should encourage kids to be more active. In spite of the obvious behavioral factors, there are many experts who “know better.”  They seek to put the blame on food companies concluding that food marketing is responsible.  The results of many studies addressing links between food marketing and children's preferences, requests, consumption, and adiposity finds that the preponderance of evidence supports their assumptions.

Who is to blame?  A newly released movie “Fed Up” goes so far as to call for the demonization of the snacks industry.  This movie has great credentials: 1] it is narrated by Katie Couric and 2] one of its producers worked on Al Gore’s “An Inconvenient Truth.”  A reviewer of that film observes “Fed Up’s” ultimate, if not fatal, weakness: “The movie seems to acquit consumers of any culpability in our health crisis. There's a reason it's called junk food, and unlike the air we breathe, we pay handsomely to ingest it. And although most of the parents of the kids are also overweight, there's little reflection on parental roles in kids' expanding waistlines.”

For more information on this report or other Judiciary issues, contact Mike Petersen, Senate Republican Office of Policy at 916/651-1501.