You're Fat, Who Can You Sue?
Jan. 22, 2002 -- So we're fat — 61 percent of us. We're gluttons, supersizing our fries and indulging in whopper-sized cinnamon buns at the mall.
But obesity is not just an American image crisis — it's fast becoming our most serious public health problem. Indeed, obesity now rivals smoking in its deadliness and is linked to diseases such as type-2 diabetes, heart disease, and certain types of cancer.
An estimated 300,000 Americans die each year from fat-related causes, and we spent $117 billion in obesity-related economic costs just last year, U.S. Surgeon General David Satcher reported last month.
Conventional wisdom says our obesity stems from laziness, lack of willpower or a fast-paced lifestyle that prevents healthy eating and exercise. We already spend up to an estimated $50 billion a year on diet and weight loss products — are we really just not trying hard enough?
While individuals surely bear responsibility for what they eat and whether they move, some nutrition and legal experts say we may not be entirely at fault.
Some say the food industry — particularly fast food, vending machine and processed food companies — should be held accountable for playing a role in the declining health of the nation, just as the tobacco industry ultimately was forced to bear responsibility for public health costs associated with smoking in its landmark $206 billion settlement with the states.
Although no one is taking such legal action against the food industry, nutrition and legal experts say it is reasonable to think that someday, it may come to that.
"There is a movement afoot to do something about the obesity problem, not just as a visual blight but to see it in terms of costs," says John Banzhaf, a George Washington University Law School professor.
The Case for Fat Suits
Most public health experts agree that regulations or taxes would be better than legal action, but they are mindful that after years of going after Big Tobacco, anti-smoking forces only achieved success when plaintiffs and lawyers stepped in.
No matter how it happens, though, nutrition activists say corporate America must bear some responsibility for obesity.
They point to a David and Goliath-like imbalance between the government's nutrition education spending and the food industry's $30 billion advertising budget. Only 2 percent of the industry's ad dollars go to promote fruits, vegetables, whole grains and beans, according to watchdog group Center for Science in the Public Interest. Most ads lure Americans toward high-fat, high-calorie, large-portion food.
While McDonald's reportedly spent $500 million on the "We love to see you smile" ad campaign, the National Cancer Institute's "5-a-Day" campaign spends about $1 million a year to promote eating five daily servings of fruits and vegetables.
The government's entire budget on nutrition education is estimated at just a fifth of the advertising budget for Altoids mints, says Marion Nestle, a New York University professor and author of the soon-to-be released Food Politics: How the Food Industry Manipulates What We Eat to the Detriment of Our Health.
"It's not fair," Nestle said. "People are confronted with food in every possible way to eat more. The function of the food industry is to get people to eat more, not less."
Targeting Saturday Morning Fare
The purpose behind suing food companies would be both philosophical and economic and resembles the logic of the tobacco litigation, explains Banzhaf, who helped craft the tobacco lawsuits. "If there are products the use of which cause large costs, grave costs, it is better that the burden of those costs fall on people who use and make the products rather than third parties or the general public," he said.
For some, it may be difficult to buy the argument that companies should be blamed for what adults eat. For that reason, some health experts suggest that a campaign against marketing junk food to children would be more successful, just as the anti-smoking forces went after Joe Camel ads.
Four out of five food ads market products attractive to kids, CSPI says, such as sugary cereal, snack food, soft drinks and fast food.
For years, nutrition activists have attempted, unsuccessfully, to get junk food ads off Saturday morning television, long the domain of commercials featuring kid-friendly characters hawking sugary, high-calorie foods.
Junk food in schools has also been the longtime bane of many nutrition experts. Although school lunches must meet federal dietary standards, vending machines and snack bars are not required to withstand nutritional scrutiny and often bring multi-million dollar contracts between corporations and school districts.
"Certainly, fast food is marketed overtly to children and my guess is if you looked closely around the internal documents of the fast food industry and processed food industry it would shock me if they didn't have very sophisticated studies about their consumers," said Richard Nagareda, Vanderbilt University Law School professor. "Whether you can take that to the level of a successful lawsuit is not so clear."
Message from Government: 'Just Do It'
For its part, the food industry claims that its products are not directly linked to obesity and have pointed to Americans' lack of exercise as a major factor contributing to our fatness. Less than a third of all Americans exercise as much as doctors advise.
The American Dietetic Association also stresses that a healthy diet depends on variety, balance and moderation for all foods and beverages, and does not recommend restricting specific foods or ingredients for weight management.
Even surgeon general Satcher did not recommend policy changes aimed at the food industry when he released his report last month, although he told an interviewer: "That doesn't mean Congress can't read the report and decide that we need it."
Instead, Satcher's report recommended that families, communities, businesses, the health care system and the media all work together to get America eating right and exercising. The official message from the government: It is our responsibility to stay healthy and help others to do so, too.
This message is especially pertinent in lower-income communities, then, where it is most often easier to find a greasy burger and fries than a fresh head of lettuce. According to the surgeon general, women of lower socioeconomic status are about 50 percent more likely to be obese than their better-off counterparts.
Smoking, Obesity Quite Different
Even those public health and legal experts who agree that corporations bear some measure of responsibility for American obesity say a viable strategy to hold the food industry liable in court does not yet exist.
After all, there are significant differences between the smoking and obesity epidemics.
Even if food industry practices play a role in obesity, surely other factors do, too — genetics, inactivity, television watching, and cultural differences, to name a few. "Lung cancer is caused by smoking," says Banzhaf. "When you get to eating, it's much more complex."
When used as sold and in moderation, cigarettes cause illness and death — this was a persuasive argument in the tobacco litigation. That argument doesn't hold up with food.
But perhaps the greatest barrier to launching lawsuits against the food industry is the public perception of obesity and its root causes, experts say.
"Because food is so familiar to us the risk perceptions are very different," said Margo Wootan, director of nutrition policy at CSPI. "We have emotional connections to food. Poor diet and a lack of activity kill as many people as tobacco but people don't think about it as being as deadly as tobacco."
Despite these challenges, some public health advocates still say corporations should — and will — ultimately bear some responsibility for the obesity epidemic.
"It will not be easy, but the public now sees the tobacco industry as having caused the epidemic of lung disease and cancer," said Tony Robbins, chair of family medicine and community health at Tufts University. "People need to be creative about this, but tobacco was no minor opponent, either."