Driving a Stake Into State Obesity Litigation

by Richard Goldfarb
Food Liability Law Blog
Stoel Rives LLP, NW Law Firm

Everyone from the First Lady to the Mayor of New York to my own personal physician is on an anti-obesity campaign these days.  Michelle Obama generally operates by trying to instill healthy habits; my doctor simply says I will lose weight if I use more calories than I consume (which is why you’ll find my name here).  Mayor Bloomberg tried to limit some options he considers unhealthy.

(Parenthetically, in the course of doing some research for this blog entry, I found the entry in the Urban Dictionary under my own surname.  One definition is “To maintain the proper diet in association with the physical activity.”  What a nice way to refer to “Goldfarb”.  I wish I could take credit, but it apparently comes from a Marc Goldfarb about whom I have been able to find out nothing more; ignore that first definition, please). 

Then there are lawyers.  One suggested way for combating obesity has been for attorneys general to take the initiative and sue the “food industry” for causing obesity.  This is a patently bad idea.

Happily, there is a well-written and well-argued law review article that suggests that the attorneys general would be wasting their time.  In Parens Patriae:  A Flawed Strategy for State-Initiated Obesity Litigation, published in the William & Mary Law Review, John B. Hoke makes the case that the case cannot be made for such litigation.  The argument is actually quite simple:  for a state attorney general to bring a claim, he or she ordinarily must operate under the parens patriae doctrine.  But, while this was asserted in the tobacco litigation that was generally settled between attorneys general and that industry, there are significant and important differences between the claims in those cases and the likely claims in obesity cases.  And those differences are enough to sink the idea.

Of these, the most important one is the basic causal link, without which any tort suit is bound to fail.

Because someone’s overall lifestyle contributes to obesity, and food consumption is only one cause of obesity, establishing sufficient causation between the conduct of the food industry and the obesity epidemic may be an insurmountable burden for parens patriae obesity suits.

Moreover, as Hoke points out, “no food, if consumed in moderation, is entirely harmful.”  Finally, and to me most importantly, “The sheer number of food companies and food manufacturers further weakens the causal connection between the conduct of the food industry and obesity.”  I’d actually go farther:  in this context, there is no “food industry.”  Unlike what Hoke called an “oligopoly,” where five settling defendants essentially covered all the tobacco purveyors in the United States, a significant portion of food in the United States is produced and consumed outside of any “industry” as the term could be applied to any potential defendant in a lawsuit.  Mothers produce breast milk; I think we can assume that no attorney general and no plaintiffs’ lawyer is going to go after mom.  People grow their own food; neighbors share the produce from their gardens.  People also actually cook food themselves, from raw ingredients whose quantities and proportions are up to them.  We are not slaves even to our cookbooks.

Hoke similarly destroys the use of the “public nuisance” cause of action as a grounds for obesity litigation.  His strongest argument is that, under this doctrine, “the defendant must be in control of the product that actually causes the harm.”  Other than a farm-to-table restaurant, this is a hard element to prove in connection with food, and that’s not exactly the kind of defendant these cases are likely to want to target.

Combating obesity is a worthy goal.  Educating people about healthy choices and healthy lifestyles, providing valuable and germane information about the food they eat is a laudable means to that goal.  If I may be so vain, Goldfarbing is a laudable goal.  Using the blunt hammer of the litigation system, on the other hand, can lead to uncontrollable and not necessarily benign results.

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