TorteDeForm

Public Citizen

At It Again: The Junk Food Protection Act

Linda Andros, Legislative Counsel, Congress Watch

Once again, big corporate interests are attempting to inflict new and harmful changes in consumer protection law - part of a little-here and little-there strategy to whittle away at consumer rights. A bill pending in the Senate (S. 908), the "Commonsense Consumption Act" would immunize both the food and dietary supplement industries from civil suits for health conditions associated with weight gain or obesity. The bill is being touted as a way to stop claims by individuals that blame the fast food industry for becoming obese due to consumption of fast food. While corporate interests assert the bill would focus on "personal responsibility," it is a radical assault on state consumer protection law. Its real aim is to force individuals and the public to assume more risk in the marketplace -- even if products are dangerous and their advertising is false or deceptive.

The bill would reduce access to the courts in several ways. In a radical power grab, it would preempt state consumer protection law, taking traditional enforcement authority away from state attorneys, general. The bill also fails to provide an exemption for adulterated or misbranded products. This means that if an adulterated or misbranded product is associated with any weight gain under the broad language of the bill, state attorneys' general would not be able to protect citizens. Instead, the bill requires an already overburdened and under-funded Food and Drug Administration (FDA) to monitor all 50 states for adulterated and misbranded products. Given the FDA's full plate, this is akin to totally gutting enforcement of these laws.

S. 908 also would make it virtually impossible for state attorneys' general and individuals to bring suits for false advertising and other deceptive practices. The bill radically rewrites states' unfair and deceptive practices (UDAP) statutes by setting an unreasonably high burden to prove violations. Under the strictures of the bill, a plaintiff would have to show that a manufacturer: 1) knowingly violated state law; 2) with the specific intent to deceive; and 3) that the "individual" was injured by "justifiably" relying on that deception. A similarly onerous burden of proof does not exist in most state UDAP statues and is not applied by the FTC. This preemption of state law effectively would preclude enforcement of UDAP claims and undermine the purpose of UDAP statutes, which are designed to stop unfair and deceptive practices in the marketplace. If these large corporate interests get their way, caveat emptor, or "let the buyer beware," would be resurrected as the sole protection that honest people have from unscrupulous dealings.

Likewise, S. 908 reaches down into state lawbooks to rewrite basic courtroom rules to favor corporate interests. The bill preempts state civil procedure rules by introducing new anti-plaintiff bias into pleading and discovery requirements, making it harder for individuals to hold industries accountable in court or to obtain information once there. This foray would force revisions of state civil process rules, rolling back decades of hard work on state rules, overturning scores of precedent in each state and up-ending principles of fundamental fairness that ensure everyone plays by the same rules.

While the food and dietary supplement companies suggest that S. 908 is a narrowly tailored bill, it would actually shield all food, including food additives and dietary supplements from civil liability for a substantial range of health conditions. In the case of dietary supplements, this immunity from suit is extremely dangerous because the industry remains virtually unregulated. For example, if an individual develops liver damage from consuming a food or dietary supplement, but also has unrelated weight gain from that consumption, the offending company would likely argue that it has no responsibility for any of the harm caused by the liver damage. The injured person and their family would be saddled with all of the health expense related to the liver failure, while the dietary supplement maker would lack any incentive to make a safer product.

Even the main focus of the bill is a solution in search of a problem. Its purported motivation - the threat of "fat lawsuits" - is pure hype. Suits alleging that food made a person obese do not exist, except for a single suit that was rejected by the court. S. 908 is simply a vehicle for corporate special interests to begin erasing hard-earned gains in consumer protection. Ultimately, their vision would return us to a world reminiscent of Charles Dickens; where might makes right and the economically powerful can evade responsibility for harm caused by their actions. Consumers deserve better. The Senate should vote no on S. 908.

If you or your organization is interested in learning more about or working on these types of civil justice issues, please contact cdugger@drummajorinstitute.org.

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Comments

Suits alleging that food made a person obese do not exist, except for a single suit that was rejected by the court.

Really?

Posted by: fishbane | September 22, 2006 11:07 AM

Franks’ World: Going Backwards

As Frank recognizes, there has only been a single case blaming the food industry for a person’s becoming obese. But what he neglects to tell you is that in that case, Pelman v. McDonald’s Corp., the court dismissed claims grounded in the theory that McDonald’s failed to inform that its fatty junk food could lead to obesity if over-consumed. The sole claim remaining in the case is a simple run-of-the mill deceptive advertising claim brought under New York’s consumer protection statute. Apparently, Frank does not like deceptive advertising laws either, for he would have the court dismiss the case without giving the plaintiffs the chance to show whether, in fact, McDonald’s engaged in false advertising from 1987-2002. In Frank’s world, this New York statute should require a higher standard of pleading for a plaintiff to get into court, just like S. 908. Yet, this New York statute follows the typical pleading standard found in most state civil procedure rules (and in the federal rules) for all manner of cases. Why must a consumer protection standard require more when, for example, a contract dispute does not?
You might well ask why this bill is being pushed so relentlessly. The answer is not to stop “fat lawsuits” -- which do not exist -- but to re-write consumer protection laws in favor of corporate profits, not the public’s welfare. See “At It Again: The Junk Food Protection Act”(www.tortdeform.com). There is no mystery why the real “special” interests – like Kraft Foods and the National Restaurant Association -- will benefit from the bill and so have been lobbying hard for its passage. Frank wants you to fear the civil justice system. What you really should be afraid of is being pulled backwards to Frank’s world.

Posted by: Linda Andros | September 22, 2006 5:42 PM

One wonders why Andros feels the need to shout me down and misrepresent my views, rather than address what I actually wrote. Or perhaps it doesn't take much wonder at all.

If the bill has nothing to do with fat lawsuits, why does Andros sneeringly rename the act as the "Junk Food Protection Act"? The bill doesn't distinguish between my local Vietnamese tofu restaurant or Ben & Jerry's.

Posted by: Ted | September 22, 2006 7:43 PM

how many brain cells are needed for the Pelman's of this world to understand that when they were gobbling the Big mac they would get obese ,or they are using those cells only ,while filing suits to make some shysters wet dream come true.how long this kind of fraud , this country will have to bear.

Posted by: Anirban | September 22, 2006 11:08 PM

Every time tort "reformers" commnet I wonder to myself why can't these guys express themselves in a manner different than a swift boat attack add style.

The only people have been consistently "sneering" are the tort "reformers" who comment on this blog.

Interestingly, overlawyeredd has no recent comments section, so critiques of thier arguments are buried on thier blog.

Rather convenient... I think overlawyered should promote the public expression of opposing viewpoints like we do over here.

I think they should also make comment in such a way which reflects their nature age and experience.....

as Linda does above

Posted by: Cyrus Dugger | September 23, 2006 2:59 AM

Cyrus, you have yet another motes-and-beams problem with your latest comment. You're sadly mistaken if you think there aren't illiterate tort reform opponents. The difference is that I don't pretend to think that the illiterates who send us hit-and-run comments discredit the opposition as a whole, any more than I think your inability to spell "comment," "ad," or "their" or capitalize properly discredits reform opposition as a whole. (Your persistence in using scare quotes to describe reformers, however, is a sure sign that you shouldn't be taken seriously. Really now. Grow up with that.)

Anirban hasn't expressed himself eloquently, but he shows a lot more common sense than Andros with all her age and experience does: he at least recognizes that Pelman has no justification for suing McDonald's. How about addressing more than straw-man arguments?

Posted by: Ted | September 23, 2006 3:18 PM

Hi Ted,

I just do not get why you insist on playground type antics on this blog.

It should be possible that somebody can make a comment over the weekend (let alone on a Friday night at 3am) without you having a heart attack about it.

What are you talking about being illiterate for? Unlike you on this blog, I engage ideas without feeling a need to call people names in doing so.

What on earth does motes and beams even mean?

Ted, seriously, what's going on with you on this blog?

Cyrus

Posted by: cyrus dugger | September 24, 2006 7:17 PM

"Motes and beams" refers to Matthew 7:3-5. Some may say "pots and kettles". You get the idea.


I'm not sure where the illiteracy remark comes from, though. I imagine that Ted is using it as a sort of generic ad hom. to mean "stupid". Of course, I suppose it's entirely within the realm of possiblity that there are people on both sides of the debate who cannot read and write.


It seems to me that the real point of departure between Ted and Linda is that Ted supports a radical revision of state law such as that outlined in Victor Schwartz's piece in the current U Kansas Law Review.


Linda, as I read it, thinks that this is "throwing the baby out with the bathwater" (so to speak).


"If the bill has nothing to do with fat lawsuits..."


Well, the bill obviously has something to do with fat lawsuits - that's clear from reading the bill. But, again, what Linda is saying, and I don't think she's particularly unclear, is that the bill does so much more than simply address the narrow stated intent of the bill - preventing people from suing restaurants for making them fat - as to raise serious questions about whether or not it's repairing a crack by razing the whole building.


One can, as Ted suggests elsewhere, chalk that up to "awkward draftsmanship", or one can intuit that the tort reform lobby is making a political calculation and exploiting an opportunity to pass a bill that does much more than simply bar lawsuits against restaurants when someone eats their food and gets fat. Not an unreasonable read of the situation, IMHO.


One thing that puzzles me is that Ted continually boils Pelman down to one claim - that McDonalds should be liable for making someone fat. I can't imagine that Ted has not read the Pelman complaints and opinions, so surely he must know that there is more to the suit than simply the question of whether or not McDonald's made the teenagers fat. My impression is that he would rather avoid the more substantive arguments made by Schwartz, et al., though, preferring instead the dumbed-down question of personal responsibility.


Furthermore, I suggest that even if Pelman rested on one claim and were wholly without merit, one lawsuit does not a crisis make - certainly not one that would require such sweeping Congressional action as Ted supports: namely, regressing consumer protection law to the essentially 19th century requirements of common law fraud.


As for Ted's snide line at the end of his comment, "How about addressing more than straw-man arguments?" I might refer him back to Matthew 7.

Posted by: Seth | September 24, 2006 9:07 PM

"What on earth does motes and beams even mean?"

Careful, Cyrus, you'll confirm the stereotype red-state America has about East-Coast intellectuals. Me, I just weep for the implications of a question that rises to self-parody. You've had over $200,000 in post-secondary education at some of the finest schools America has to offer, which makes you more educationally fortunate than 98-99% of your fellow Americans. Yet you ask a question where, even if your education did not provide the answer, a simple two-word Google search could have spared the public demonstration of that failing.

All of this is irrelevant. Instead of discussing our respective posting styles, how about addressing the issues? I've written several thousand words on the issues presented by obesity litigation, and the only response from this blog has been name-calling.

Posted by: Ted | September 25, 2006 2:00 AM

Ted,

You and I and anybody who reads this blog regularly is aware that you interact in the discussions here like you were on the fifth grade playground. The above comment is right in line with your usual adult approach to discussing the issues here. How can you ask grown adults to even engage with you when every comment you make here (and it seems you write more here than on your own blog) includes the hurling of some insult at the person who disagrees with you.

I mean seriously Ted, you’re going off here about how I don’t know the term and how that shows money was wasted on my education. What is your deal?

Seth has been able to articulately discuss these issues without a personal insult of any kind. And he is rather convincing. Please follow his example. And Seth thanks for letting us know where “motes and beams” comes from (your comment posted after I submitted mine), which seems to be a Christian biblical reference.

FYI Ted, not everybody is Christian. In fact, most people in the world are not.

Posted by: Cyrus Dugger | September 25, 2006 9:45 AM

Seth, the illiteracy remark was directed at Anirban's comment, and at Cyrus's insults of all reformers based on Anirban's comment.

I'm fascinated by the chutzpah of Seth's substantive allegation: the plaintiffs' bar has argued, contrary to all notions of justice, fairness, history, and due process, that people who have suffered no cognizable injury should be allowed to sue for "fraud" without any evidence of reliance or causation, and those who wish to restore justice to the justice system by repealing this in-my-lifetime wealth-transfer of billions of dollars from consumers to a powerful lobby of attorneys are the ones who are supporting a "radical revision in state law." My opposition to this rent-seeking is hardly a secret, given my regular citations to Greve's work on the subject.

Seth accuses me of failing to address more than straw-men. Apologies for not reproducing every single one of the thousands of words I've written on the subject here.

I mean seriously Ted, you’re going off here about how I don’t know the term and how that shows money was wasted on my education. What is your deal?

Cyrus, you're the one who went off about how you don't know the term, and insulted me for using it. And now you're engaging in this Argument-Clinic game of insulting me while insincerely announcing you're above insults.

And, by the way, I'm not Christian, and never have been. Do you really wish to imply that non-Christianity is an excuse for ignorance?

Posted by: Ted | September 25, 2006 10:27 AM

Thousands of words?

I'd like to read some of them.

Ted, do you have a last name?

Willing to share it?

Posted by: Lee Tilson | September 25, 2006 12:02 PM

Ted's last name is Frank. He works for the American Enterprise Institute on liability issues. He has a recent law review article on obesity litigation available for download here. If you download it from SSRN, you get the added benefit of feeding Ted Frank's ego. ;)


Most of the footnotes, if I remember correctly, are references to work by Walter Olson and Jonathan Klick - the latter is also, I believe, a former employee at AEI's Liability Project, though Frank does not note that in his footnotes; the former is Frank's partner at both overlawyered.com and pointoflaw.com and is a Senior Fellow at the Manhattan Institute - another conservative non-profit.


I note these things because I worry sometimes that Ted has isolated himself in an echo chamber and is unable to appreciate that he doesn't have all the answers that, yes, some people may honestly disagree with him and not be liars or morons.


It's telling, I believe, that Ted considers sincere and honest discourse to be a sign of "chutzpah" - perhaps this is part of the reason he's seemingly unable to consider the issue in terms other than the hyperbolic.


There are interesting and substantive questions of law and public policy in this debate, so I am, again, puzzled as to why Frank continues to reduce them to absurd notions of "wealth-transfer of billions of dollars from consumers to a powerful lobby of attorneys."


I am willing to give Ted Frank the benefit of the doubt and assume that he is sincere in his beliefs and not just an overpaid shill for the business lobby. Would that he could extend the same courtesy to those with whom he disagrees.

Posted by: Seth | September 25, 2006 1:07 PM

Lee: the web-design for this blog doesn't do a good job of highlighting links, but if you click on the words "several thousand words on the issues presented by obesity litigation," in the comment above or in this one, you'll have your answer. If you click on "Ted," you get to my blog. I haven't exactly hidden my identity.

Posted by: Ted | September 25, 2006 1:16 PM

Seth, I never called you (or anyone else here) an overpaid shill. I took issue with your characterization of reconciliation of the more outlandish interpretations of consumer-fraud statutes with fundamental principles of tort law as a "radical revision." I stand by the wealth-transfer issue: Public Citizen and its ilk are defending a law that, at the relevant margin subject to potential reform, takes billions of dollars from consumers' pockets and gives them to attorneys. I view myself as a consumer advocate, just one who advocates for consumers rather than plaintiffs' lawyers.

For the record, my paper has 113 footnotes (more than I preferred, but that was the editors' decision); three cite to Olson and zero to Klick. Hardly an echo chamber.

The implication that I would have done something wrong if I had followed Bluebook citation rules and cited Klick without mentioning his affiliation with AEI is ludicrous.

Posted by: Ted | September 25, 2006 2:00 PM

Ted,


Anyone would be hard-pressed to call me overpaid, and I'm afraid I wouldn't be a very good shill, anyway. :)


I understand your characterization of wealth transfer, but I stand my desire for a respectful discussion of the core issues. It concerns me that you so casually refer to an undefined set of principles, such as, I assume, the idea that private citizens should be able to bring a claim to enforce a consumer protection law rather than as a common law fraud or contract claim, as "outlandish." You may believe that this is outlandish, but there have been many individuals and courts, much more eloquent than myself, who disagree with you. And, believe it or not, they may actually disagree with you on the merits, and not out of any desire to pad the bank accounts of some un-named plaintiffs' attorneys. I find it hard to believe that there has been a long term conspiracy between the courts and the plaintiffs' bar to undermine capitalism or rob the American people through interpretation of consumer protection law.


I characterized the idea of reverting to strict common law fraud and contract requirements as a "radical revision" because, as far as I can tell, it would be a radical departure from the status quo that would require revision of statutory law. I don't think that's too far off the mark.


As for my comments about the footnotes in your recent article, I stand corrected. I did not take the time to double check that, and I certainly should have.


At any rate, I did not mean to imply that you would have done anything wrong by not mentioning Klick's affiliation with AEI, I was simply noting his affiliation as part of my comment about echo chambers. I'm sorry that you felt that I was impugning your honesty - I certainly had not that intention.


I remain concerned about the echo chamber effect. To be clear, I do not think that you are alone susceptible to such effects, and, to be fair, I would neither contend that I myself am immune. That is why I think it is invaluable for those of us with differing opinions to engage in honest dialogue about the issues. This is why I do read what you and Victor Schwartz have to say, and try to do so with an open mind.


It's when we go into questions thinking we already know all the answers that we get ourselves into trouble.


Best,

Posted by: Seth | September 25, 2006 5:10 PM

Thank you, Seth, for your polite response. I, too, am happy to have a reasoned discussion. I don't disagree that there are people who take positions that I disagree with for sincere motives.

For example, on caps, I think people can make a reasoned policy choice that says we're willing to take the costs to society as a whole to ensure maximum compensation for victims of malpractice; it's a question of tradeoffs. (Empirically, most people are willing to make those tradeoffs against maximum compensation: since New Jersey residents have been given the choice of cheaper auto insurance or opting into full compensation for non-economic damages, over 90% choose the cheaper auto insurance rather than bearing the cost of non-economic damages.) Ideally, we set up systems where everybody gets that sort of choices: the more choices, the more consumers win.

It disturbs me, however, for example, when the opponents of caps, rather than forthrightly acknowledge the tradeoffs, insist that caps wouldn't reduce insurance costs at all and pretend that the problem of malpractice insurance costs is solely that of the (doctor-run mutual) insurance companies, when that plainly isn't true.

Here, it disturbs me here when opponents of this particular law try to have it both ways. You and Andros say that this is only "one lawsuit" (which isn't quite true), but at the same time the two of you keep implying that Pelman has some sort of a legitimate claim, which, if courts were to agree, would mean (you would surely have to admit) that we're talking about far more than "one lawsuit." There's such a thing as closing the barn door before the horse gets out and hundreds of lawyers have billions of dollars of motivation to keep obesity litigation going. Let's have the real policy debate, rather than pretending that there isn't a real issue here.

Similarly, it still disturbs me that a form of common-law fraud pleading that is available in all fifty states in 2006 is called "regressing to the nineteenth century" when reformers suggest that that same standard should be applied to the handful of states that revoked injury requirements in the late twentieth century—especially when, every time voters squarely consider the question, they overwhelmingly vote for measures like Proposition 64 in California to return to the traditional standards of tort law and standing.

Seth, I don't believe we've formally met. May I have the privilege of knowing with whom I'm conversing? Feel free to take this to e-mail, which I would have done had that option been available to me here.

Posted by: Ted | September 25, 2006 10:11 PM