Posted on 06/24/2002 4:45:38 PM PDT by LoneGreenEyeshade
Article in part...:
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..."
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."
And right now what some call the professional health nannies are in high gear demonizing fatty and junk food the same way tobacco was demonized. Longtime self-styled consumer activist and former presidential candidate Ralph Nader asserted in the New York Times Magazine in June that "McDonald's double cheeseburgers [are] a weapon of mass destruction." Pop singer Moby recently said on HBO's Dennis Miller Live that "all the lawsuits" will force fast-food restaurants to become totally vegetarian in 25 years. In 1998 Kelly Brownell, director of Yale University's Center for Eating and Weight Disorders, told the Boston Herald, "There is no difference between Ronald McDonald and Joe Camel. … We need to start thinking about this in a more militant way."
Just as cigarettes were subjected to "sin" taxes, Brownell has proposed massive new taxes on what he considers to be "bad" foods. The boola-boola fat-checker told U.S. News and World Report in 1998, "Hit junk-food junkies where it hurts: in their wallets" by "slapping high-fat, low-nutrition foods with a substantial government 'sin' tax."
Another group getting into the act is the Washington-based Center for Science in the Public Interest (CSPI), called the "food police" by critics for its dire warnings about dishes such as fettuccine alfredo, which the group dubbed "heart attack on a plate." Margo Wootan, CSPI's director of nutrition policy, recently said on CNN's Inside Politics that "health advocates are looking at tobacco as a model." CSPI also proposes sin taxes on snack foods, soft drinks, candy and gum and a ban on advertising fast food on any TV program commonly seen by children.
And Banzhaf also is not the only prominent tobacco-war veteran to turn his sights on Big Food. Richard Daynard, head of the Tobacco Products Liability Project at Northeastern University, worked on behalf of Mississippi and other states to sue tobacco companies. Now he is working with students to develop strategies that could be used in potential lawsuits against restaurants and food makers.
Daynard tells Insight: "[Mississippi] Attorney General Mike Moore, speaking about the Mississippi [tobacco] case, when asked about going after pepperoni pizzas said, 'When somebody shows they're addictive, that they kill hundreds of thousands of people and that the manufacturers are lying about it, I'll go after pepperoni pizzas.' It's really a question of whether the shoe fits." Daynard concedes that "in many respects, it does not fit." But he says that food makers, like the tobacco companies, have "exaggerated the positive" aspects of their products and "marketed to kids."
At least one group that supported the tobacco lawsuits parts company with its former allies. The American Council on Science and Health (ACSH), headed by Elizabeth Whelan, who is antitobacco but conservative on other issues, maintains that there is a huge difference between tobacco and fast food. "Unlike tobacco, you have to eat," Ruth Kava, the ACSH's director of nutrition, tells Insight. "You don't have to smoke, you don't have to chew tobacco, but you need food. Furthermore, trying to demonize particular types of food as being nutritionally worthless or particularly likely to contribute to obesity is also off the mark, because it's the whole dietary pattern that's important."
But never mind that — the states have been hurting for revenue in the Clinton economic downturn, and public-health activists are pitching food excise tariffs as small taxes that could be turned into bigger ones after the pubic gets used to them. According to the National Taxpayer's Union, 15 states already levy excise taxes on soft drinks; six states and the District of Columbia tax snack food, candy or gum. A bill pending in California would require the state to study the feasibility of taxing junk food to fund new health and dental services for children.
"It's kind of like a perfect-storm scenario," says Mike Flynn, director of policy and legislation for the American Legislative Exchange Council, a membership group of conservative state lawmakers. "If you think about the tobacco stuff, that happened when the states had record surpluses, when you could argue that they didn't even need the money. Now they need the money, so it's even going to be more ridiculous what they try to do."
Another element added to help build the perfect storm is a December 2001 report from former surgeon general David Satcher, a Clinton appointee. The report calls obesity "an epidemic" costing $117 billion in health-care costs and lost wages and uncritically accepts as fact the figure that obesity kills 300,000 people a year, despite an editorial in the New England Journal of Medicine saying that figure is "by no means well established" and is "derived from weak or incomplete data."
To compound this, the IRS in April classified obesity as a "disease" for deduction of medical expenses. This reminds many observers of when Food and Drug Administration Commissioner David Kessler shifted the blame from individual smokers to the tobacco companies by calling smoking a "pediatric disease." Tort reformer Schwartz says, "That's important, because if obesity is a disease, then it's not your fault. That's a very important step because the plaintiffs' lawyers and those who want to make an assault on fatty food have to move away from the concept of individual responsibility just like the antitobacco people had to move away from the idea that you choose to smoke."
Schwartz says plaintiffs' lawyers still have two hurdles to get around before they can make Big Food the next Big Tobacco. One is that food makers and fast-food restaurants haven't yet been demonized in the public mind the way tobacco was. The other is the legal burden of causation, proving a particular product is responsible for an individual's obesity and bad health. Unlike in tobacco cases, where smokers usually were loyal to one brand of cigarettes, obese people eat a variety of foods, making it hard to trace damages to one company or product. "They have to come up with some theory, stretching the law, to get around causation," Schwartz says.
Banzhaf argues that many of the theories to get around causation already were developed in the state lawsuits against tobacco to recover Medicaid costs, the type of case he predicts will be most successful against food companies. In 1994, Florida Gov. Lawton Chiles sneaked through the legislature a law crafted by his trial-lawyer friends that allowed the state to sue companies for Medicaid costs without identifying anyone who had been injured, allowed damages to "be proven by the use of statistical analysis" and said that companies could be held liable according to their "market share" without proving that a particular company's product harmed a particular person. Under pressure, Chiles signed an executive order forbidding agencies under the governor's control from using the statute against anyone except tobacco companies or illegal drug dealers.
But the order doesn't apply to Florida's attorney general, and Banzhaf says the precedent already has been set. "Basically, the state of New York or California could say, 'We've spent so many hundreds of zillions of dollars every year on heart attacks, we estimate that 38 percent of that is caused by obesity,' and then we can take 38 percent of that total cost," Banzhaf explained. "How could such a thing be possible? The best answer is by using the same strategy we used with regard to tobacco."
Banzhaf says this campaign is developing fast, predicts a dozen more lawsuits against food businesses by the end of this year and thinks this litigation will not last nearly as long as those against the tobacco companies before the food companies are forced to pay up or settle.
Banzhaf notes a recent case he helped initiate in which McDonald's settled for $12.5 million with Hindu and vegetarian groups because it had advertised that its french fries were cooked in vegetable oil without saying they had been seasoned with beef flavoring. "We proved that you could bring the suit where McDonald's didn't even lie," Banzhaf gloats. "What they said was technically correct. It was what they didn't say that we got them on."
In unusually frank comments about his profession, Banzhaf said the McDonald's settlement, coupled with the money to be made because of the larger number of food companies compared with tobacco companies, will spur lawyers into action. "They analogize lawyers to sharks, and the blood is in the water," he says. "If mighty McDonald's is willing to shell out $12 million for this kind of suit, then it's quite possible that other companies will shell out likewise."
Many critics of the proposed lawsuits distinguish the McDonald's lawsuit as one of misrepresentation. But Banzhaf sees it as just a starting point to force changes in the industry. He tells Insight that likely future targets for lawsuits will be milk and pork.
Milk commercials "tell you, 'Drink this milk for health reasons,' but then they fail to tell you that milk has a lot of saturated fat and cholesterol, and that you can get all of whatever these health benefits are without these risks by drinking skim milk," Banzhaf says. "That, to me, is very close to McDonald's."
Banzhaf and other activists also take issue with the "Pork: The Other White Meat" commercials. "It is white, but the message that they're sending to millions of people is that it's more like chicken, a safer meat that's much different from beef, whereas I'm told that it's much more like beef than like chicken, and really it's not very good for you," he says. The pork industry counters, and many of its commercials point out, that lean pork in the right portions makes sense in a low-fat diet.
Michael Fumento, a senior fellow at the Hudson Institute in Washington and author of The Fat of the Land, is an obesity expert who doubts that targeting "politically incorrect" foods through taxes and lawsuits will make a dent in the problem. Noting that Europeans are slimmer even though their diets include considerable amounts of butter and heavy cream, Fumento says the problem is not so much what Americans eat, but that they eat too much. "Demonizing consumption of fat is exactly the opposite of what we want," Fumento tells Insight. "As far as obesity goes, what we want to demonize is eating too damned much and exercising too damned little."
Noting that lack of exercise is a big part of the problem of obesity, Grocery Manufacturers of America spokesman Gene Grabowski joked to Insight that, if food is targeted in this way, perhaps "automobiles, television sets and office chairs should be taxed because they contribute to inactivity." Grabowski may have spoken too soon. The CSPI has proposed a 5 percent tax on new TV sets and video equipment and a new tax on cars for just that reason.
And, this time around, Banzhaf refuses to draw a line around what products will or will not be targeted for taxes and lawsuits because of their health risks. When asked where it will all end, Banzhaf replies simply: "I'm not sure anybody at this time can say. I would suggest that we have to work it out the way we always have. Which is, as [former Supreme Court justice Benjamin] Cardozo put it: 'In the great laboratories of law that are our courts.'"
I've been on several threads lately trying, with limited success ( I guess my approach was wrong) to warn that this was going to be the outcome if people did not start taking some responsibility, especially as relates to what their kids are eating.
This is the world we live in now, but how do we stop them...how do you stop the lawyers. I may have a fighting chance with the legislators (though that too is open to debate) but the lawyers????
I'm looking for some practical "how to's"...any ideas?
Thank you. There are many among us who don't know this or disbelieve it completely.
And I agree, as an adult I should have the free choice...
But my concern here is "How do we stop these guys?" You and I may agree that it is not a legal issue, but I asked for help from the FReeper 'Puff List' because this could only lead to more and more legal interference in our freedoms. We have to accept responsibility, as a society, not only for ourselves, but what we let the lawyers get away with. I just don't know what to do to stop them or if it's even possible.
I pray we are too late! The lawyers may "reign and rule" very soon if we don't stop them!
Richard Daynard, head of the Tobacco Products Liability Project at Northeastern University, worked on behalf of Mississippi and other states to sue tobacco companies. Now he is working with students to develop strategies that could be used in potential lawsuits against restaurants and food makers.
"Richard Daynard... says that food makers, like the tobacco companies, have "exaggerated the positive" aspects of their products and "marketed to kids."
Meanwhile, politicians and bureaucrats lie through their teeth. Facilitated by big media reporters and academia elite.
When asked where it will all end, Banzhaf replies simply: "I'm not sure anybody at this time can say. I would suggest that we have to work it out the way we always have. Which is, as [former Supreme Court justice Benjamin] Cardozo put it: 'In the great laboratories of law that are our courts.'"
Honest justice will come from the general public scorn of parasitical elites and praise for value creators and value producers.
"The government picks the citizens' pockets taking half their money while parasitical elites declare tobacco and junk food are the 'enemy'." -- Zon
Politicians and bureaucrats are notoriously incompetent when it comes to solving real problems yet champions at creating problems where they need not exist.
Politicians and bureaucrats create and implement roughly 3,000 new laws and regulations each year. That number increases on average from one year to the next. Each year they tell us that the new laws are "must-have laws" that people and society can't prosper without. They do that to keep people from running society headlong into destruction. To that end lawyers are their greatest champions.
Yet how is it that citizens and the society they make up has managed to not only survive but increase prosperity when they didn't have this year's 3,000 new laws last year or for decades before. Likewise, how did citizens increase prosperity for decades prior to last year's 3,000 new must-have laws? And they do that despite a mountain of laws that they've already saddled with. Thirty new laws a year is probably overkill. But 3,000 is insane.
During Clintons eight years in the White House alone, there were 25,000 new laws and regulations created. How many of those laws did you break? With that many laws piled on top of the ones that already existed virtually every citizen is a criminal.
However, if in a day it was physically possible to apprehended even one quarter of those lawbreakers society would come to a screeching halt. Yet with all these supposed criminals on the lose prosperity continues to increase.
Seems obvious enough to me that lobbyists and special interest groups seeking to buy access to government power in order to gain unfair competitive advantages would be non existent if politicians weren't putting government power up for sale in the first place. They sell the "little guys" snake oil while they sell access to government power to their cronies.
Politicians and bureaucrats write and implement thousands of laws each year to justify their unearned paychecks and to usurp power that rightfully belongs to the citizens.
It seems obvious to this writer that politicians and bureaucrats think the citizens are as stupid as themselves and can't readily comprehend the bigger picture when given even a small amount of full-context facts presented honestly.
Government intervention into peaceful, private activity -- free association wherein any or all parties are free to walk away -- will make things worse rather than better.
Parasitical Elite vs. Prosperity Creators
If civilization had to chose between business/science and government/bureaucracy, eliminating the other, which is the better choice?
The first thing civilization must have is business/science. It's what the family needs so that its members can live creative, productive, happy lives. Business/science can survive, even thrive without government/bureaucracy.
Government/bureaucracy cannot survive without business/science. In general, business/science and family is the host and government/bureaucracy is a parasite.
Aside from that, keep valid government services that protect individual rights and property. Military defense, FBI, CIA, police and courts. With the rest of government striped away those few valid services would be several fold more efficient and effective than they are today.
Underwriters Laboratory is a private sector business that has to compete in a capitalist market. Underwriters laboratory is a good example of success where government fails.
Any government agency that is a value to the people and society could better serve the people by being in the private sector where competition demands maximum performance.
Wake up! They are the parasites. We are the host. We don't need them. They need us.
Huh...sorry, don't understand!
Super post.
I think apathy rather than stupidity on the part of our citizens plays an even larger role. Will anyone actually do anything to stop this kind of thing. Sheesh, as a society, we can barely drag at best half the population out to vote for President.
I have a huge amount of time on my hands, thanks to lawyers. I'm involved in an professional ethics issue and had no choice but to get legal representation. (I didn't commit ethics violations, my employer did and I got fired because I refused to participate.) I have been forced to sit around waiting for the legal system to plod along before I can even go out and get a job. I would like to do something here. I don't want to just sit and watch. I've never had any experience with lobbying and don't know how or where to begin.
Politicians and bureaucrats write and implement thousands of laws each year to justify their unearned paychecks and to usurp power that rightfully belongs to the citizens.
How do we stop them? How do we reverse the trend?
Do you know a lawyer? :~)
never get involved in a land war in Asia
Maybe I should start a campaign to send the lawyers....or better yet, though many have heard this lately, maybe on border patrol.....
The good ol' American spirit at work....
Now maybe I understand how this snowball keeps getting bigger....
Well thanks for a practical idea...it's a start. But I have to admit, not totally fair. I struggle to keep the pounds off and have not eaten so-called fast food but once or twice in a year. My skinny husband on the other hand, loves the stuff! He will be more upset than me if combo meals get zapped!
Gee, this is what the smokers have been trying to warn you about for YEARS and you would not listen. Nope, all the non-smokers whined and moaned that smoking was a nasty, disgusting habit and that affected everyone's health. Several times we tried to warn you about letting this gate open, but you would not listen.
LOL, now the shoe is on the other foot and the blubbery, roly-polies of the world are seeing that they are going to be the next target, so who do they cry out to for help? The smokers... Even now, some of you are saying that we got what we deserved while crying out for our help. Ain't THAT ironic? Sheesh...
I would prefer to wait until all the fattie nonsmokers are whining, crying, and gasping for breath on their government mandated daily 5-mile runs to start helping. I would rather wait until chocolate double-fudge sundaes are only to be found in museums (and the offices of the very same politicians and lawyers who do this to you) to help.
But, smokers being the kind-hearted people that we are, we will probably do our best to help you anyways. Even if you will throw it in our faces later.
Take care,
Ruck
Thanks, I think. But this is not just directed at overweight people....it's the legal momentum....what next? Okay, I admit that I didn't do enough personally, even though I smoked, to stop the anti-smoking legislation. But...first smoking, now "fatty" food....what's next on the list. If "we" missed the point with the smoking laws, should we just throw in the towel on this too and wait for the next legal target to rear it's head. With every one of these legal "victories" we set the stage for the next infringement on our personal freedoms.
I've been an advocate of educating parents of my students about the importance of proper nutrition. Somewhere, we have failed and kids are getting hurt and are given way too much Ritalin and not enough apples. But it's an issue of ignorance or apathy, and not one to be legislated.
We seem to be failing in taking personal responsibility, individually and collectively, and allowing the lawyers to step in and become our watchdogs.
I didn't take it as one!!! :~)
I stuggle, but I do succeed!
And I do truly believe you've given me a good practical idea.
Along with 50 something or other percentage of the adult population now overweight and obese (and some of them smoking too) who will be left?
These groups have way too much money and time on their hands. This will never stop unless we start countersuing these goo-goos -- and the enviro-Nazis -- on some sort of constitutional grounds.
This seems to be a common sentiment. Know a lawyer?
From PLF's Web site (www.pacificlegal.org):
Pacific Legal Foundation was established over 25 years ago to provide an effective voice in the courts for mainstream thinking -- a voice that speaks for less government and the preservation of free enterprise, private property rights and individual liberties. Today, PLF is the largest and most experienced public interest law foundation of its kind in America.
And, as we find out now, neither was the no-smoking-nazi's attack on tobacco either. What is next? Alcohol? Driving? Air Conditioners? The number of children you can bear? Who knows? This is just another attempt to regulate behavior through the use of laws and taxes; where it will end is anyone's guess.
If "we" missed the point with the smoking laws, should we just throw in the towel on this too and wait for the next legal target to rear it's head.
Nope, we need to stop this in its tracks and reverse the damage that has already been done (ie: smoking).
With every one of these legal "victories" we set the stage for the next infringement on our personal freedoms.
yup, I couldn't agree more.
Somewhere, we have failed and kids are getting hurt and are given way too much Ritalin and not enough apples. But it's an issue of ignorance or apathy, and not one to be legislated.
As the father of a small child, I couldn't agree with you more. Fortunately, he gets plenty of apples, almost no sweets, and absolutely NO freakin Ritalin. (They start trying to give him that poision, they are gonna have to kill me first.)
We seem to be failing in taking personal responsibility, individually and collectively, and allowing the lawyers to step in and become our watchdogs.
When people fail to take responsibility for themselves and their actions, they leave the door open to laws being inacted to prevent them from harming themselves. This is exactly why I cringed when I heard about the first "I smoked cigarettes for 20 years, against my doctor's orders even, and got cancer. You fooled me! Waaah, give me money!" lawsuits. That made it appear that it was not a conscious choice and therefore should be regulated by law.
No, smokers did not do this to themselves... WE ALL did it to ourselves, ALL of us.
Don't think you'll find anyone here who disagrees. That's the point....what next....My "BuzzBlast" cereal?
That's a hard one. As long as certain members of the population view themselves as victims and resort to ambulance chasing tort "attorneys" it doesn't look good.
Speak for yourself. I'm almost forty, and on a typical day I'll smoke 30 cigarettes and pedal my bike 30 kilometres. On my last pilot's medical the doctor checked his notes and couldn't believe it- my pulse, weight and respiration were identical to the results he got two years earlier.
As for helping out the fatties, I'll do that just as soon as (a) they lobby HARD for repeal of anti-smoking laws & tobacco taxes, and (b) stop demanding that they have a "right" to crowd me out of my seat on a plane or pay for the extra room they take.
Great post.....
My husband thinks alcohol is next....and as I just posted elsewhere, we are also worried about out "Buzz Blasts" cereal!
LOL, yeah let em keep thinking that. I got a LEEETLE surprise for them. (I run 2.5 miles every morning carrying a 30 - 35 lb backpack. AND I smoke a pack a day.)
"If it don't hurt at least a little, you ain't puttin forth enough effort."
Take care,
Ruck
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.