Obesity in the Headlines

February 3, 2004 - Milwaukee Journal Sentinel

Lawmakers look to limit obesity cases
Fast-food industry would be shielded from claims of promoting fat

By MIKE JOHNSON

At a time of bulging waistlines in Wisconsin, state lawmakers are weighing legislation that would prohibit people from suing fast-food chains and other restaurants for selling food they claim made them fat.

Introduced at the behest of the Wisconsin Restaurant Association, the measure would immunize fast-food giants and other eateries, food manufacturers, marketers, packers and advertisers from civil liability in obesity or "McFat" suits.

But the Wisconsin Academy of Trial Lawyers and state Sen. Dave Hansen (D-Green Bay) say the legislation - which could come up for an Assembly vote this week - is a "knee-jerk reaction" to a problem that doesn't exist. No obesity suits have been filed in Wisconsin, they say.

"It is pre-emptive. There haven't been any claims," Hansen said. "I'm surprised it's being brought forward when we've had no cases of obesity claims."

Furthermore, the measure threatens citizens' constitutional rights to go to court, they said.

"Our members do not support the filing of so-called obesity lawsuits. We certainly question whether eating at restaurants is a 'cause' of obesity," Keith R. Clifford, past president of the lawyers group testified during a hearing on the legislation.

But he said: "Immunity is the equivalent of 'special dispensation' or a permanent 'stay out of court' card for wrongdoers. The growing push for immunity via legislation represents a major threat to our system of civil justice and any concept of accountability."

Only a matter of time, some say

Although Wisconsin hasn't been hit with such a lawsuit, sponsors of the measure believe it is only a matter of time before people here try blaming their obesity and resulting health problems on the places where they consume big burgers, supersize fries and other fare.

Earlier this month, a West Bend man tried to blame a cable TV company for his television addiction and his wife's 50-pound weight gain. He threatened to sue the cable provider, but dropped that threat.

"There seems to be this trend in society of not accepting personal responsibility for your own behavior," said Sen. Tom Reynolds (R-West Allis), sponsor of Senate Bill 289. "There just seems to be a need to prevent these frivolous type lawsuits that could decimate the restaurant industry in Wisconsin."

The legislation, he said, would "help to clarify that restaurants are not the reason why Wisconsin people are the most obese in the nation."

"My reason for putting it forward is it has to be an issue of personal responsibility," said Daniel P. Vrakas (R-Town of Delafield), sponsor of Assembly Bill 595, the companion to SB 289.

Modeled after federal act

The measures, modeled after a bill before Congress, are being touted as the "Personal Responsibility in Food Consumption Act."

"Ultimately, it is the responsibility of the person with the fork in their hand that determines how much they want to eat and what they are going to eat," said Ed Lump, Wisconsin Restaurant Association president.

The bills provide an exception to immunity if a claim involves a violation of state and federal law concerning the food.

Nonetheless, attorney Barry Levenson said the proposed legislation smacks of special interest.

"Why don't we call it the 'food industry gets special treatment from the court system' legislation," said Levenson, the former head of the criminal appeals division of the Wisconsin Justice Department.

"I do sympathize with the announced purpose of the act: to stop the rash of frivolous lawsuits," said Levenson, author of a book on food law called "Habeas Codfish" and the curator of the Mount Horeb Mustard Museum.

"But I got a touch of indigestion when I looked at the bills. Why do we need special legislation when we're not seeing any kind of a problem?" Levenson asked. "Once you close the door to a whole class of lawsuits, you are not only throwing out frivolous lawsuits, but also throwing out some that might not be frivolous."

Levenson and Clifford point out that no obesity suits have made it past the hearing stage anywhere in the United States.

Earlier this month, a federal judge in New York dismissed a lawsuit against McDonald's that was filed by two teens who said the food made them obese.

In California, an attorney sued in 2003 to ban the sale of Oreo cookies in the state, saying the trans fat in them was bad for children. The lawyer later withdrew the lawsuit.

Clifford, in testimony before the state Senate Committee on Labor, Small Business Development and Consumer Affairs, also points out that Wisconsin already has a strict law to control frivolous lawsuits.

Several years ago, he said, a plaintiff brought a lawsuit against a food manufacturer. The plaintiff dropped the case, but the court assessed the plaintiff more than $700,000 in court costs, Clifford said.

But Reynolds and Vrakas said even lawsuits that wind up being dismissed or settled can cost restaurant owners thousands of dollars, threatening their livelihoods.

"Even though we've not seen filings of lawsuits of this nature up to this point in our state, we worry the next target could be somebody smaller than a national chain like McDonald's," said Sara Stinski, a Wisconsin Restaurant Association spokeswoman.