Fast-Food Update: Where Are the Promised Obesity Lawsuits?

Last May, an Overlawyered headline read: "'String of Fast-Food Suits Expected by End of Year.'" It was one in a series of posts about fast-food litigation that suggested the "plaintiff's bar" had a strategy "to keep filing frivolous lawsuits" until a favorable ruling opened the floodgates to more obesity litigation.

As a card-carrying member of the plaintiffs' bar and the very type of lawyer that Overlawyered and its tort-reformer brethren loves to demonize, I was in a position to know that most plaintiffs' lawyers had no more interest in suing the fast-food industry than they did in eating a Big Mac. So who was keeping the idea alive? First, ironically, it was the tort reformers themselves, who were using the fear they created about the predicted flood of lawsuits to bolster their agenda of legal protections for the fast-food industry. Second, it was the defense lawyers, who were fond of holding seminars to help the fast-food industry prepare for the fast-approaching, but imaginary, wave of litigation.

My speculation about fast-food litigation was the basis of "Who Needs Marketing When You've Got a Villain," a post I wrote in April, 2004, that turned out to be a reader favorite. Now, a year later, the "string of fast-food cases" still hasn't arrived. Meanwhile, there are signs the media might be figuring out that the predicted wave of obesity litigation was all but a hoax. For example, there was this article yesterday from Reuters: "U.S. Lawyers Have Little Stomach for Obesity Cases," by Gail Appleson. According to the article, "While the continuing publicity over a three-year-old obesity suit against McDonald's makes it seem the courts are bulging with cases blaming the food industry for weight problems, few really exist." Appleson quoted a lawyer from Motley Rice, whose principals led the charge against the tobacco industry, as calling the idea of fast-food lawsuits "ludicrous." A law professor quoted in the article noted that no one forces anyone to eat at McDonald's. "Even the most ambitious of trial lawyers throw up their hands and says this does not fly," he said.

Admittedly, some good has come out of the tort reformer's fear-mongering. Appleson notes that some fast-food restaurants have added some "healthier selections" to their menu. But legislatures across the land have also wasted a lot of time. According to Appleson, "Fearing a flood of such cases and lobbied by the restaurant industry, more than 20 states have enacted or are considering legislation that bars or limits obesity suits against restaurants and food manufacturers."

One thing you can say about the tort reformers: They get the job done.

Comments

[Half Sigma]

Why can't someone write about this topic without littering the article with bad puns? "Lawyers have little stomache for obesity cases." "Courts are bulging with cases."

I know, you're just quoting other people's bad puns.

[Aaron]

Something Ted Frank wrote about this had me scratching my head a bit: "If the plaintiffs' bar is really opposed to lifestyle litigation, as Schaeffer suggests, why not score some cheap political points by supporting the legislation instead of fighting it so hard? A cynic might suggest that they're trying to keep the door open for copycat litigation in case the pioneers find a jurisdiction that will let the claims proceed."

Perhaps Mr. Frank thinks that indifference translates into opposition. I doubt many trial lawyers think that there would be much validity to fraud suits against people who contend that the Earth is flat, but it doesn't quite seem necessary to pass legislation to protect the flat-Earthers (no allusion to Thomas Friedman intended). Perhaps it is a symptom of Mr. Frank's practice areas that he has a problem only with what he deems to be excessive litigation, but apparently not with unnecessary (and thus excessive) legislation and regulation.