Act Would Bring Common Sense Tort Reform
By George Anderson
In introducing the Commonsense Consumption Act of 2005, S. 908, Sen. Mitch McConnell (R – KY) observed, “Most Americans believe in the old adage, ‘you are what you eat.’ However, there are some who believe that others are to blame for what they eat. Over the years, we have seen lawsuits claiming the plaintiff’s weight gain is the responsibility of those selling food. Restaurants and cookie companies have been sued and ice cream parlors and even school districts have been threatened with abusive lawsuits. This is absurd. You shouldn’t be able to sue someone else because of your own eating habits.”
Sen. McConnell said the American people support this measure and it deserves the support of his colleagues on the Hill. A release from his office cited a 2003 Gallup poll that showed 89 percent of respondents said that fast-food restaurants should not be held legally liable for the eating habits of the consumers who eat their food.
If enacted into law, the Commonsense Consumption Act of 2005 would “prohibit any claim based on an alleged injury related to obesity or weight gain, in state or federal court, against a lawful food manufacturer or seller. The bill covers all food, as defined by the Federal Food, Drug and Cosmetic Act, including food ingredients and beverages.”
The National Council of Chain Restaurants (NCCR) applauded the bill.
“Senator McConnell’s bill is a common sense solution to curb abuse of the legal system that has gotten wildly out of control,” said Terrie Dort, NCCR President. “Lawsuits against restaurants based on spurious claims that the food served ’caused’ someone to become overweight or obese are patently absurd, and people of all political stripes and dispositions recognize that fact. The McConnell bill would put a stop to this kind of lawsuit, which no doubt would proliferate if left unchecked.”
Moderator’s Comment: Do you agree that obesity lawsuits have gotten out of hand? Do restaurants, food manufacturers and retailers have any responsibility
in this area? –
George Anderson – Moderator
Too much legislation! The tort laws developed over the last century along a pretty logical path. I believe most people would agree with the basic principle that if you make a product that harms people, knowing that it harms people, and knowing that you could have either made it in a way that doesn’t harm people and/or disclosed the potential harm, you may be liable for the damage the product caused.
Food products shouldn’t be exempt. As discussed above, if you make a product that harms people without disclosing that, you may be liable. The problem with obesity suits is defining the harm. There simply is not enough evidence about the effects of various foods on obesity, and of obesity on health.
The courts were designed to be able to consider the current state of things and make judgments about what is or is not wrong and what was or should have been known. The legislature was not. Yes, these suits might seem to be clogging the courts, but so did tobacco cases once, and asbestos cases. Those cases ultimately exposed the fraud and hypocrisy and real dangers that were all too well-known to the purveyors of those products.
I’m not saying obesity suits aren’t silly. But for all we know there are products being sold right now that have a very detrimental effect on certain people, in a known way, and only the people selling those products know about it. The courts are best equipped to turn away people who simply ate too much, and listen to those who seem to have been harmed in a very specific way by a specific product.
Congress is not interested in truth and justice; they are acting in the interests of business and their contributors. Congress could play a beneficial role; by crafting legislation that makes it easier and faster for courts to dismiss frivolous suits while entertaining more serious ones. There are many ways this could be done without throwing the baby out with the bathwater.
I agree with the comment above. The keys here are:
1) Providing full and accurate information on labels.
2) Freedom to choose among foods.
With regard to #1, labels should reflect the *best* knowledge we have on food ingredients. As time passes, we will no doubt learn more about how food and the processing that goes into food affect our bodies. As we learn more, food manufacturers should be obligated to disclose more.
With regard to #2, it just makes sense not to have “captive audiences.” I also feel sorry for school children. Parents and children themselves may want to make healthy choices, but can’t.
Of course, fast food chains cannot be liable for what people eat. They can, and should, however, be responsible for the information they provide regarding what people eat. Provided information is readily accessible and accurate, I agree with this legislation, with one exception.
Many (I suspect, it’s most) school cafeterias sell food much more damaging nutritionally to children than any of the fast food chains. And I don’t know who would get sued in the case of school cafeterias at any rate — the school board, the principal, the PTA, the cafeteria ladies (I’m joking)? However, this is dangerous territory that needs to be addressed and should not be folded into the same legislation as fast food chains. School children do not have as much control over what they eat at school and this needs to be recognized.
Unless you are presenting misstatements concerning your product — stating the ice cream has no calories — then I firmly believe the responsibility for weight gain resides with the consumer, not the restaurant, food manufacturer, or retailer. Misrepresentation is one thing. Responsibility for making food consumption choices is another. The later being the responsibility of the food purchaser — not provider.
The obesity lawsuits have resulted in heightened awareness of food choices, which is not all-bad. But even with this potential “good” outcome, I believe these lawsuits are opportunistic.
Lawsuits have definitely got out of hand but that doesn’t mean that restaurants, food manufacturers and retailers have no responsibility. They have a great deal of it both in what they are offering for sale and in the ways in which they advertise what they are selling. More people, fortunately, are aware of what may be bad about the food they eat (thanks to the attempted lawsuits) and some companies have started to make changes as a result but being let off the hook over potential legal action shouldn’t signal that they can go back to their old ways. As for schools, I agree with the other comments that they should be specifically excluded from a prohibition on lawsuits. Too many schools do not teach children good habits or offer them a good selection of food. Children and their parents need to retain the right to complain and pressure schools into not restricting kids to an unbalanced or unhealthy diet. They have a responsibility to work with parents, who obviously also have a responsibility, to make sure that kids learn good habits and that what is available for them to eat doesn’t conflict with what they’re being taught either at home or in the classroom. Parents and schools must work together. If they do, and fast food joints, manufacturers and retailers come clean about what’s in their food then maybe kids will grow up healthier and with a better understanding of how to stay that way.
I totally agree with the proposition that we are responsible for the consequences of our own action. And I further agree that the purveyor of food has a responsibility not to misrepresent what they sell.
I would go one step further – the industries that purvey food, especially prepared food, should be one helluva lot more informative on a range of subjects – calories, carb and sugar levels, potential allergy ingredients. It’s not unreasonable to hold people responsible for their choices if they have adequate information readily available right on the menu or in plain sight.
I wouldn’t say it rises to the level of legally reprehensible, but I would also add that restricted choices on most American highways are painful. As a diabetic, it is almost impossible for me to stop at a highway rest-stop and eat. I wouldn’t consider suing anyone over it – but it would be helpful if the agencies that grant these virtual monopolies would insist on some better available choices.
We have all been “on the road” in our careers and know what it can do to your eating habits. Even if you are not entertaining, but merely trying to have a “reasonable portion” for dinner, it becomes a challenge.
I don’t know if it makes any sense to pay more for less, but it seems there should be a way to ask for smaller portions when that is all you want. Like many others, I tend to eat what was put in front of me and would prefer that I could limit the portion sizes while I am traveling.
We don’t need TORT reform. What we need are standards for jurors and court reform.
When we impose educational standards on jurors (I would propose a post high school exam that would assign everyone a score based upon their performance) and reform our court system, then the silliness will stop. A gateway score should be necessary for an individual to hold any public office, to work in any public job, or serve in any capacity in any position of public trust. Also, coupled with the above, jurors would be paid based on the number of days served. A one-day trial might pay $20. A two-day $60, a five-day $800, and so on. Payment would stop when the case was given to the jury. Also, jurors could opt to fine either or both/all parties for willful negligence and order that the parties (not their insurance companies pay). Folks, the law isn’t broke – the system is!
When you think about the old Ford Pinto case, you know why jury awards and fines should never be limited. Here was a case where a product was defective. The manufacturer knew it but would not accept responsibility based on internal legal advice. The problem/design lingered for years because to change it would be an admission of poor design. Additional lives were lost because of this action. In my opinion, this type of willful neglect should carry civil and criminal penalties. Any manager who participated in this kind of decision should serve a minimum of ten years in a State prison. If anyone ever intentionally designs a menu item that intentionally addicts a user, then they should be called to task. If anyone continues to offer a menu item that is discovered to addict a user, they should be called to task. The consumer, however, will have to be responsible for personal restraint. Liking something is not an addiction!
I can’t comment on “out of hand,” because I don’t know how many that represents. But to me, one obesity lawsuit is one too many. That said, we still have to look out for each other. To borrow a phrase from George Anderson, “That’s the way America is supposed to work.”
I attended a rural high school with only 400 students. We lived in an agricultural area and nearly all of us worked hard, manual-labor jobs after school and on weekends. Additionally, gym class was mandatory and nearly everyone participated in sports. At school we ate like kings. Everything was delicious, prepared from scratch in a modern kitchen, and “all you could eat.” Local farmers donated tons of food. And yet, I can’t remember a single obese student in my high school.
If we want to get litigious about obesity, we need to legally mandate exercise programs in schools at all levels. As one of the first things to be cut when funds run low, school exercise activities have fallen by the wayside. So why are we surprised when our children balloon up? Let’s eat! And then let’s exercise.
There’s an important fact overlooked in this story: just how big of a problem are those troubling lawsuits?
Personally, I suspect the “problem” is vastly overblown and that Sen. McConnell has latched onto the cause as a low-risk way to promote himself.
Just how many obesity lawsuits have been filed? Have any been successful? How pressing is the need for this legislation?
Eating establishments should not be held liable for the overall health of their customers, unless of course it is the result of negligence on their part. The consumer, on the other hand, must be provided with the proper education as to what is good fuel for the human body and what is not. This information is well documented but not readily available because in runs counter to what most Americans eat each day.
The information provided by the Department of Agriculture, together with the useless Food Pyramid are guiding the consumer to poor food choices – choices that eventually cause the majority of health problems in this country (and most of the rest of the world) today.
The only people getting anything out of these lawsuits are trial lawyers and should be dismissed with prejudice. This is a waste of the court’s time and a bottleneck in the judicial system.
Having said that, I do believe tighter regulations should be in play in school cafeterias. In many school districts, the per meal cost has to be kept significantly below $1 in order to meet budget restrictions. How much healthy food do you think you can serve a child for under $1? In certain districts, a school lunch is often the best meal a child gets every day.
Adults can watch themselves; children need help with nutrition. Overall, trial lawyers are nothing more than junkyard dogs in $1,000 suits. But I wouldn’t mind letting a few loose on school districts that spend more on perks for superintendents than on feeding their kids.