The Centers for Disease Control admitted last week that a much-touted estimate of enormous mortality rates resulting from increasing obesity in America was wrong and arose from incorrect methodology; it promises a revised and lower estimate (Gina Kolata, “Data on Deaths From Obesity Is Inflated, U.S. Agency Says”, New York Times, Nov. 24; Radley Balko, Nov. 24; Jacob Sullum, Reason “Hit and Run”, Nov. 24; Jim Copland, PointOfLaw, Nov. 24 and Nov. 30). The National Institutes of Health’s body mass index is also falling into disrepute for overrating the incidence of obesity (Gina Kolata, “Tell the Truth: Does This Index Make Me Look Fat?”, New York Times, Nov. 28)(see Apr. 29-30, 2002).
As for lawsuits, the scary Public Health Advocacy Institute, where trial lawyers meet dietitians, held its second annual conference in September, with opening remarks by Sen. Tom Harkin (D-Iowa) (Marguerite Higgins, “Anti-obesity group mulls swell in suits”, Washington Times, Sept. 19; “Lawyers see obese U.S. ripe for fat lawsuits”, Sept. 20; Center for Consumer Freedom, “Looking For Lawsuits In All The Wrong Places”, Sept. 24). The food-industry-defense Center for Consumer Freedom (“Don’t Sue the Hand That Feeds You”) has prepared a “Thanksgiving Guest Liability and Indemnification Agreement” (PDF) (via LawfulGal, Nov. 25) and has also (Sept. 27) compiled a list of the “Ten Dumbest Food Cop Ideas” of the year. These include law prof John Banzhaf’s proposals for suing parents of obese children and doctors who fail to warn their obese patients against overeating; Texas officials’ edict against schoolkids’ sharing of snacks; and a proposal by the New Zealand health minister to apply age restrictions, in the manner of carding for alcohol and tobacco purchases, to keep kids from buying hamburgers, pie and candy. A Deloitte consumer opinion survey (“The Weight Debate”, last updated Jul. 14) finds the public overwhelmingly opposed to lawsuits against restaurants.
Finally, the Fulton County Daily Report, the Atlanta outpost of the Law.com empire, this summer published a useful discussion of the prospects for obesity litigation (“Trying Fat Suits On for Size”, Aug. 3). The chief threat to food companies in the nearer term, as attorney W. Michael Holm (Womble Carlyle) notes, will come from private suits alleging false marketing or product adulteration — theories which as it happens are often left untouched by state “cheeseburger bills” prohibiting a cause of action over sale of fattening food as such. Nor will the cheeseburger bills necessarily prevent plaintiff’s lawyers from laying their hands on internal documents and publicizing them in the worst possible light, posing a significant reputational threat at least to their targets.
Causation issues — which food or other unhealthy influence caused which disease in which persons? — would pose a “huge” hurdle to private class actions as well as individual suits, observes Scott A. Farrow, of Troutman Sanders. On the other hand, Holm discerns a “significant threat out there for the food industry” from the potential for state attorneys general eventually to get together and sue on a disgorgement or unjust enrichment theory, which might also (a la tobacco) include a claim to recoup Medicaid and other public health expenditures. And Polly J. Price, a professor at Emory University School of Law, notes that restaurant chains’ widespread fear of getting sued if they furnish consumers with inaccurate nutritional information has the presumably unintended consequence of discouraging them from releasing nutritional data at all, since many such chains “can’t control every meal that goes out of the kitchen” and thus can’t undertake to warrant the exact number of calories, carbs or fat grams that a worker on the spot will incorporate into a sandwich or salad.