Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘obesity’

Frozen dessert suit melts in NYC

Sad news for the boosters of obesity litigation: a Manhattan judge has dismissed a would-be class action which asked the maker of CremaLita frozen dessert to pay for weight-gain damages because it had wrongly advertised its product as fat-free and as having 60 calories per serving when in fact it had about 10 calories more than that. After a Consumer Affairs investigation had uncovered the misrepresentation, Stephen Brandt sued, claiming “that as a result of CremaLita’s alleged false advertising …he and countless ‘other members of the class’ were put at risk of ‘severe health problems, including but not limited to cardiovascular problems, mobility problems and cancer’ as well as the ‘negative self-esteem issues’ that the ‘social stigma’ of “excess weight gain carries” in today’s culture.'”

However, Justice Emily Jane Goodman ruled that Brandt was not an appropriate representative for a class action, in part because of his difficulty in demonstrating damages. To begin with, Brandt claimed to have consumed only one serving of CremaLita per week, which meant, said the company’s defense lawyer, that his extra calorie consumption would have amounted to only 10 calories a week. Brandt, whose weight ballooned by 41 pounds over a six-year period including the seven months in which he said he’d been a buyer of the dessert, also conceded that he’d enhanced it with crumbled cookie toppings.

In court filings, the defense was rather cruel about it all: “What Brandt fails to mention,” said its lawyer, “is that he regularly eats real ice cream, McDonald’s and Wendy’s cheeseburgers, french fries, pepperoni pizza, beer, corn chips, donuts, cookies, hard cheese, eggs, bagels, peanut butter, Chinese take-out meals and pasta, [and] that he never exercises.” Moreover, “although he provided no useful information regarding his weight gain during the period that he ate CremaLita, his medical records . . . show that he managed to pack on an additional 16 pounds in the nine months after he stopped” eating the confection. (Dareh Gregorian, “Suit melts away”, New York Post, May 25; Gothamist, May 25).

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UK: menace of ice-cream vans

Campaigners for compulsory health in Great Britain are pressing for new laws that could largely spell an end to old-fashioned roving ice-cream vans (which in that country, rather charmingly, are said to play “Greensleeves” or “O Sole Mio” as their jingles). (Rajeev Syal and David Sanderson, “Why ice-cream vans face total meltdown”, The Times (UK), May 8)(via A&LDaily).

Nor are grown-ups to be trusted with their own dietary choices any more than kids, at least not in Scotland:

Bar owners have warned they could be forced to stop serving chips and traditional pub meals under proposals by the Scottish Executive.

Under regulations being considered by the Executive, landlords – many of whom are still unhappy at the smoking ban – would be required to have policies to promote “sensible eating” as a condition of their licenses.

(Russell Jackson, “Publicans fear Executive wants ‘unhealthy’ bar meals banned”, The Scotsman, May 5)(via Stuttaford)(& welcome Andrew Sullivan, Stephen Bainbridge readers). Our UK page is here, and our page on food and beverage nannyism, regulation and litigation is here.

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“Goodbye, war on smoking. Hello, war on fat”

But somehow, “the food industry” doesn’t sound quite as evil as “the tobacco industry.” Something about food — the fact that it keeps us alive, perhaps — makes its purveyors hard to hate. For that matter, the rationale for recent bans on smoking is the injustice of secondhand smoke, and there’s no such thing as secondhand obesity. …

These obstacles don’t make the assault on junk food futile. But they do clarify how it will unfold. It will rely on three arguments: First, we should protect kids. Second, fat people are burdening the rest of us. Third, junk food isn’t really food….

A fact sheet from [Iowa Sen. Tom] Harkin implies that schools should treat milk, French fries, and pizza like soda, jelly beans, and gum.

(William Saletan, “Junk-Food Jihad”, Slate, Apr. 15).

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“Public health” imperialism

Once upon a time, the main mission of “public health” was to prevent the spread of contagious illnesses, and handing the members of that profession a lot of coercive power may have seemed like a sound idea. But now many of the profession’s members are demanding that government intervene against unhealthy individual lifestyle choices. Keep your laws off our bodies, please (Ronald Bailey, “Is Diabetes a Plague?”, Reason, Mar. 17).

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Paul Harris show on food nannyism

Yesterday I was a guest on Paul Harris’s radio program (KMOX St. Louis) to discuss the latest push for government regulation and courtroom action over tempting and calorie-laden items found in the refrigerator, in particular sodas. We talked about a new Associated Press article reporting favorably on some nutritionists’ plans to “make the case for higher taxes on soda, restrictions on how and where it is sold and maybe a surgeon general’s warning on labels”. (Marilynn Marchione, “A hard stance against soft drinks”, AP/Fort Worth Star-Telegram, Mar. 5). More on our Eat, Drink and Be Merry page.

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“Low-Fat Diet Does Not Cut Health Risks, Study Finds”

A big oooops for one whole sector of obesity litigation and food nannyism in general:

“These studies are revolutionary,” said Dr. Jules Hirsch, physician in chief emeritus at Rockefeller University in New York City, who has spent a lifetime studying the effects of diets on weight and health. “They should put a stop to this era of thinking that we have all the information we need to change the whole national diet and make everybody healthy.”

(Gina Kolata, New York Times, Feb. 8). On the other hand: Cathy Young (Feb. 17) says the new study may not after all prove as much as it might seem to.

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House passes cheeseburger bill

As it did last year (see Mar. 11, 2004). This time the margin is wider, 306-120 instead of 276-139. The Senate, as usual, is the sticking point. (Libby Quaid, “House Votes to Ban Obesity Blame Lawsuits”, AP/MyWay.com, Oct. 20).

More: Jacob Sullum (Oct. 20) takes a dim view of the bill because of its expansive interpretation of the Commerce Clause, and also suggests that the bill contains a rather wide loophole:

[It] makes exceptions not only for violations of express warranties but for violations of state or federal law that result in excessive calorie consumption. The latter exception would apply to Pelman v. McDonald’s, the case in which two overweight teenagers seek to blame the chain for their chubbiness. The suit was dismissed twice by U.S. District Judge Robert Sweet for failure to adequately state a claim, but it was revived by the U.S. Court of Appeals for the 2nd Circuit, which ruled that the plaintiffs could pursue their argument that McDonald’s violated New York’s Consumer Protection Act through deceptive marketing practices.

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Food, served tendentiously

From time to time it’s suggested (see Apr. 20) that folks like us are overreacting when we keep commenting on lawsuits that seek to blame food purveyors for obesity: obviously (it’s claimed) these legal actions are going nowhere, and to report on them as if they were going ventures merely casts the whole legal system into disrepute. The thing is, a presumably serious paper like the New York Times regularly publishes articles favorably showcasing obesity litigation and presenting long, uncontradicted quotes from its advocates — as it did once again in a business-section article yesterday (Melanie Warner, “Obesity Inc.: The Food Industry Empire Strikes Back”, Jul. 7). A sample quote, from Michael Jacobson of the Center for Science in the Public Interest: “If someone is saying that a 64-ounce soda at 7-Eleven contributed to obesity, that person should have his day in court”. Just three days before that, Times columnist Paul Krugman, with his customary lightness of touch and respect for the good faith of his opponents, delivered a similar screed against business’s alleged responsibility for obesity; he promises it will be the first in a series on the subject. (“Girth of a Nation”, Jul. 4). By the way, if you want to know why the food-industry-defense Center for Consumer Freedom manages to send Krugman and his co-thinkers into such fits of anger, go check out its website, whose assemblage of material on the “Food Police“, to take one example, is nothing if not informative (and refutes Krugman’s naive assertion that “nobody is proposing that adult Americans be prevented from eating whatever they want”).

On a brighter note, Cato’s indispensable Radley Balko (The Agitator) has started a special blog (description of its mission, Jul. 5) devoted to fact-checking the assertions of filmmaker Morgan Spurlock, of Super-Size Me fame. And from Britain comes a welcome new blog entitled Nanny Knows Best, a “site dedicated to exposing, and resisting, the all pervasive nanny state”.

More: Krugman is back today (Jul. 8) with his second installment, and as AtlanticBlog notes, he’s already changed his tune on the issue of whether adults’ food consumption should be left to the realm of free choice. And Radley Balko (Jul. 8) pokes a hole in Krugman’s risible assertion that coercive government policies rationalized on public health grounds have had a record of “consistent, life-enhancing success” — you know, the way alcohol prohibition did.

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