Oh, it's important to be on the right side and all, but what really
gets John Banzhaf going is being on the short side of a long-odds fight.
He likes to position himself as a little fellow with a pickax, digging
away at social ills and wrongheaded industries. He did it with tobacco for
35 years, arguing for nonsmoker's rights, helping eliminate cigarette
advertising on television, helping establish nonsmoking sections in public
places and smoking bans on planes, trains and buses.
Now, he wants to sue for obesity.
The public, he allows, may not quite be ready for this; they may find
the notion downright "bizarre." But they'll come around. After all, this
is about "using legal action for what seems to me very important," says
Banzhaf, an unflappable, roly-poly law professor at George Washington
University. "Saving human lives."
It's too bad it has to be this way, Banzhaf says, but when legislators
don't step up to the plate, the lawyers have to push for social reform.
So, in the past, for causes ranging from discrimination to preventing a
tobacco-sponsored tournament, he has sued Hertz, Spiro Agnew and the
Interstate Commerce Commission, filed legal complaints against dry
cleaners, male-only clubs, the National Park Service, Rep. Barney Frank
and Mrs. Simpson's Dance Classes, threatened Dulles Airport, and delivered
a Freedom of Information Act to the Office of the President. Sue 'em
all!
When Banzhaf digs into a new crusade, he starts generating pithy
sayings for the cable news shows and planning gimmicks. (Bring on a dog
for the Hill testimony? A motorcycle helmet and asbestos gloves for the
news conference?) He starts thinking about how to pick off the more
vulnerable targets (say, school board members) to make it easier to get
the big companies.
In the obesity cause, Banzhaf has established himself smack dab in the
center of all the controversy. (And, um, publicity.) He has been attending
conferences on the legal tactics, advising on key lawsuits, and talking up
the issue for anyone who breathes.
Who will he sue now? For starters, schools with food contracts that
provide sugary and fatty food, and fast-food companies in general. His
argument: Many food companies have neglected to inform consumers about
just how bad their products are, have made misleading health claims about
them and, worst of all, have exerted enormous pressure on their most
gullible audience -- children. Eventually, he predicts, the states could
sue to recover the billions they spend on obesity-related diseases
(diabetes, strokes), and then the companies could settle, presumably for
oodles of money, like the tobacco companies did.
Banzhaf, 62, is an unpaid informal adviser on two New York lawsuits
brought by attorney Samuel Hirsch: one filed in July against four
fast-food companies on behalf of a 5-foot-11, 270-pound man, and another
filed weeks later against McDonald's on behalf of two overweight young
people. Although it looks like only the latter suit will go forward,
Banzhaf thinks both are a harbinger. People may laugh about them now, he
says, as they once did with tobacco, but one day they'll see the
wisdom.
Go ahead, call the Big Fat fight frivolous. He's heard it before.
"Everything's always called frivolous," Banzhaf says with a twinkle,
"but we just keep winning the damn things."
Weighty
Matters
There is no doubt obesity is a serious health crisis. Last December,
then-Surgeon General David Satcher said obesity might surpass tobacco as
the leading cause of preventable deaths in the nation, and he linked it to
300,000 deaths a year (tobacco is linked to 430,000). Sixty percent of
adults and 13 percent of children are overweight or obese, Satcher said.
He recommended better nutrition in schools and promotion of exercise in
schools, workplaces and communities, and called on restaurants to offer
more nutrition information.
Those fighting Big Fat frame their enemy as a powerful industry with
enormous influence on the country's attitudes toward food and nutrition
and a considerable stake in getting the public to eat, a lot.
"It has become a social norm that it's okay to drink soft drinks all
the time," says Marion Nestle, chair of New York University's Department
of Nutrition, whose new book "Food Politics" is sharply critical of the
food industry. "There isn't a place where it's not okay to eat. . . . You
have to ask, when did this happen and how did it happen and to whose
advantage did it happen."
Banzhaf and Nestle are part of a growing movement that wants to do
something about fat America. She'd like to get food marketing out of
schools. Others recommend taxes on fatty food; Banzhaf suggests perhaps
raising health insurance costs for the obese.
And, of course, suing.
Making the
Case
The way John Banzhaf sees the obesity lawsuits, they're just the latest
in his lifelong effort toward "pushing the boundaries." He says he has
nothing personal against the food industry; in fact, he used to eat in
fast-food joints several times a week. He says he will make no money from
the New York litigation.
No, it's nothing personal. It's about personality. On Banzhaf's Web
site, he boasts of having been called a "legal terrorist." He has built a
public persona on this principle, for decades teaching a legal activism
course that encourages law students to bring to court social reform
lawsuits. His favorite saying -- "Sue the bastards" -- has been linked to
him so many times, it's downright trite to bring it up. The saying is on
his office wall, and also on his office wall in Latin. His license
plate says SUE BAST.
Needless to say, certain people rather dislike him.
"He is the loudest and most relentless voice," says John Doyle of the
Center for Consumer Freedom, a Washington-based restaurant trade
association, who finds Banzhaf a little, um, shrill and likes to tell
about the time he says a radio station had to turn off Banzhaf's mike to
shut him up. (Banzhaf doesn't remember it that way.)
If you ask Doyle -- and indeed, some of the very same lawyers who
pushed for Big Tobacco litigation along with Banzhaf -- the problem with
suing Big Fat is that it ignores the consumer's free will.
"This portrays Americans as the most pathetic, pitiable people in the
world, that we are incapable of limiting what we eat," says Donald W.
Garner, a Southern Illinois University law professor and anti-tobacco
crusader.
Garner and others can point to a number of places where the comparison
between Big Tobacco and Big Fat falls short. First of all, food has an
inherent value. It sustains life, and even fatty food can be acceptable in
moderation. Tobacco, on the other hand, has arguably no "social
utility."
Another discrepancy is that there's no hard evidence that fast-food
companies have engaged in the coverups and intentional misrepresentation
that Big Tobacco did. Even Banzhaf will say as much, though he says he has
heard intimations and suspects he'll find "embarrassing" things once more
lawsuits get rolling.
A more crucial distinction is that many smokers were able to cite
addiction in their inability to stop smoking. This made it tougher for
tobacco companies to argue that smokers were responsible for their own
actions, particularly if they started smoking as children. Will Banzhaf
claim Big Macs are addictive?
Here, things get complicated. Banzhaf and his cohorts argue that the
concept of "free will" is a fallacy.
"Choice is based on what? Where do people get information about food?"
says Richard Daynard, a law professor at Northeastern University who has
been in discussions with Banzhaf about the obesity crisis. "They get it
from where America learns everything, which is basically television and
advertising on television."
Free will is particularly thorny when it comes to children. Nearly
every parent, Banzhaf and his cohorts argue, knows how enchanting
fast-food restaurants are to kids, knows their Pavlovian salivation at the
sight of the golden arches, their back seat chants for chicken nuggets and
fries.
"The kids are lured into McDonald's," Banzhaf says. "If you've just
seen Star Wars and you want the Princess Leia doll . . . you've got to go
in, got to get a Happy Meal to get it."
Are the parents partly responsible? Sure, Banzhaf says, but that
doesn't excuse the restaurants.
But Banzhaf doesn't think addiction needs to be a component of future
litigation. He believes he might be able to bring these cases under
product liability law. He offers the examples of how companies put
warnings for parents on toys with small parts, or warnings on stepladders
not to stand on the top step.
" 'Don't give to kids under certain age -- choking hazard.' This should
be obvious to anyone of any intelligence, much more so than the dangers of
fast food, and yet they know that if they don't have that warning, they
can be held liable," Banzhaf says.
What does the consumer know and not know? If you walk into Burger King
and order a bacon cheeseburger, don't you know what you're doing?
"The law doesn't protect you from bad choices, particularly when the
risks are obvious," says Banzhaf's colleague at GW, law professor Jonathan
Turley. "Few people view Burger King as a place to slim down."
To which Banzhaf replies: "In general somebody may know fast food is
fattening, but that's very different from being told" just how bad it is,
in hard numbers: fat, saturated fat, sodium, calories.
Two years ago, students in Banzhaf's legal activism class instigated
what eventually became lawsuits against McDonald's for flavoring its
french fries with beef extract without telling all of its customers,
angering vegetarians and Hindus. McDonald's settled by donating $10
million and issuing an apology. Banzhaf believes this makes his point
succinctly: Some companies aren't giving consumers enough information to
make smart choices.
Where is this all going?
Banzhaf would like to see clear nutrition information at fast-food
counters, ideally up on the board, next to the price. Maybe there should
be signs on the doors: "Eating out frequently can lead to obesity." The
way he sees it, a cheeseburger-and-fries order is a potentially dangerous
product and deserves a warning, just like a pack of cigarettes. How else,
he asks, can society counter all the expensive advertising the food
industry puts out?
Where do the lawsuits end? Banzhaf rules little out. Junk-food
packagers who label nutrition information correctly are probably safe from
suits, he says, but theoretically it would be possible to sue other
chains, like Denny's or even Starbucks. He does not propose suing
mom-and-pop restaurants because it's not practical (money-wise) or
effective (for producing big changes).
But could we sue gun companies? Alcohol manufacturers? Banzhaf says
it's all fair game; some economic theory would suggest such suits would be
beneficial to society. They would cause the prices of certain products to
rise, forcing those who buy them to pay for the crime and accidents that
inevitably occur. It might even be possible to increase the extent to
which dog owners are held liable for the cost of keeping their dogs, even
if they aren't negligent, on the principle that there are an inevitable
number of dog bites yearly.
Lobbyist Doyle says the whole thing is insanity -- any product is
potentially dangerous, if you stretch the potential far enough. If Banzhaf
puts a label on every burger, "I would argue he would have to put the same
warning label on a bag of carrots because if one ate just carrots and
water they would be dead in two months," Doyle says.
To which Banzhaf replies: "His statement is proof that you carry any
good idea to an illogical extreme it becomes illogical."
The Human
Factor
There's yet another impediment to likening junk food to cigarettes, and
it's key. Consider all the factors that contribute to obesity, from
genetics to sedentary lifestyles. In the tobacco suits, lung cancer could
be more directly associated with smoking. But how can you prove that Joe
Blow's obesity was caused by too many trips to Wendy's, especially if he
eats most of his meals at home? Add to that the number of different
restaurants a person might eat at, and the picture gets even murkier.
Banzhaf acknowledges that many factors play into obesity, but points
out that the scourge of fatness is on the rise nationwide. There's no
reason to think our genes have changed, or our willpower, he says. What's
different now is the nation's lack of exercise and "the proliferation of
fast-food restaurants with their ubiquitous advertising and their
supersized portions."
Manhattan attorney Hirsch believes his latest suit illustrates this
connection. There are two plaintiffs and five proposed plaintiffs, all
between the ages of 13 and 19. They are all overweight. One is a
15-year-old boy with diabetes who weighs 400 pounds. Some are from poor
families with little parental supervision and have eaten the majority of
their weekly dinners at McDonald's. The restaurant became a home away from
home.
Hirsch alleges that McDonald's failure to provide more prominent and
understandable nutrition information amounts to a deceptive practice. He
says the chain's marketing implies that its food is healthy and that if
children eat it, they will grow big and strong. But if McDonald's food is
consumed as intended -- which is not in moderation, he says -- it amounts
to a true health threat to youngsters.
McDonald's officials are aggressively defending themselves.
"We believe that the New York lawsuits are frivolous and really don't
have merit, and common sense will tell you that they don't make much
sense," says spokesman Walt Riker, on the speakerphone with others from
McDonald's headquarters in Oak Brook, Ill. Riker declines to detail the
company's legal response but is happy to discuss the "misconceptions and,
frankly, propaganda" surrounding his company.
The hype has "reached incredibly unfair proportions," he says. "We take
nutrition extremely responsibly around here and we have for a really long
time."
Ann Rusniak, the company's chief nutritionist, says nutrition brochures
are available in all its stores, as well as online and through a toll-free
number. She points to McDonald's menu items like low-fat fruit and yogurt
parfait, grilled chicken sandwiches and a new salad line due out this
month. Even the Happy Meals, Rusniak says, are "right-sized for kids,"
calorically speaking.
"Our wide range of choices on our menu makes it possible for people to
eat there three times a day if they wanted to, mixing and matching,"
Rusniak says.
"Those three meals that you can eat at McDonald's fits in under 2,000
calories," says Riker. He adds a little boast: He has eaten at McDonald's
every day for 10 years and, at 5 feet 11, weighs only 153 pounds.
Interestingly, though, McDonald's France, a division of the U.S.
corporation, sponsored a media campaign earlier this year quoting a
nutritionist who advised that parents not allow children to eat at
McDonald's more than once a week.
"We're highly decentralized," Riker says of his company. "We strongly
disagree" with the ad.
Tipping the
Scales
Is public opinion changing?
For the time being, the weight of it does not appear to fall on
Banzhaf's side. Samuel Hirsch's first obesity suit involved the 270-pound
maintenance supervisor Caesar Barber, whose capacity to elicit sympathy
was questionable. Barber kept eating fast food even after a heart attack
and the warning of a doctor. Hirsch has since decided to put Barber's suit
on hold because he thinks it may be tough to bring for a variety of
reasons.
Anyway, when Hirsch, Barber and Roberta Pelman (mother of an overweight
girl in the second suit) appeared on the Dr. Phil show in September, they
got . . . perhaps the best word is creamed.
Dr. Phil McGraw: Did you choose the food?
Pelman: Yes, I did.
McGraw: And did you serve it to your child?
Pelman: Yes, I did.
McGraw: So she could sue you for putting it in front of her?
Pelman: Well, you know . . .
Hirsch: Yes, she could.
McGraw: Okay. Anyway. Next, a grown man who makes his own decisions
and also blames fast-food chains for his super size.
Reactions like this are why Banzhaf's efforts have as much a public
relations goal as a legal one. One hopeful scenario is that, as more
information about the food industry comes to light, companies will be
shamed into changing their ways, or into settling cases instead of taking
them to trial.
Eye of the
Storm
The way Banzhaf talks about the fat litigation, it all just sort of
happened. After the surgeon general's report came out, reporters who knew
him as an anti-tobacco warrior started calling him to ask him what he
thought of obesity suits.
"Here I am thrust by accident into this maelstrom," he says, sitting in
his GW office beneath a sign that says "Honest Lawyer."
The thing about Banzhaf is, he's always in a maelstrom. If there were a
homing device for maelstroms, he would have invented it. Look up
"maelstrom" in the dictionary and . . . you get the point.
"A few people have said I get far more publicity than I deserve,"
Banzhaf allows. "Which may mean I'm doing well."
As a bright young lawyer in the mid-'60s (he received his law degree
from Columbia University and an electrical engineering degree from MIT),
Banzhaf hit on a clever idea to fight what was just beginning to be
considered a public health problem. He filed an action with the FCC
requesting airtime for anti-tobacco messages, an effort that eventually
ended cigarette advertising on television. Later, he founded Action on
Smoking and Health (ASH), an organization instrumental in nonsmoker's
rights issues.
He likes to tell war stories: About the time he almost served as an
expert witness for Larry Flynt on anti-smoking ads in Hustler. About how
during Watergate, he filed a suit calling for a special prosecutor. About
the time as a law student when he managed to register what he says were
the first copyrights ever for computer programs, and the time, also as a
student, when he testified in Congress.
One of Banzhaf's colleagues at GW describes him as a "lone wolf."
Victor Schwartz, a Washington lawyer who went to law school with Banzhaf,
says, "He was exceptionally bright, very serious . . . I believe I was the
only person on Columbia Law Review who would make him laugh."
Maelstroms. In one of his more famous incidents, on a talk show in the
mid-'80s, Banzhaf dumped water on a right-to-smoke lawyer who was lighting
up. When talking about school contracts with companies that market junk
food and soda, Banzhaf compares school boards to prostitutes.
During a recent legal activism class (naturally known on campus as "Sue
the Bastards"), Banzhaf instructs a tiny seminar group on the "care and
feeding of the press." His main message is: Be helpful, be quotable and be
everywhere. He offers tips on everything from what font to use on news
releases ("I use Ariel bold 12") to what to write ("Hidden deadly
ingredients! . . . Whoa!") to how many speakers to have at a news
conference ("Even Ralph Nader shares the podium with others").
Why is all of this important? The students understand. Publicity puts
pressure on the other side. It lends legitimacy to a cause. It helps draw
allies. And let's not forget one more benefit -- not the most important
one, Banzhaf cautions, but a factor nonetheless.
"Some psychic satisfaction," he says. "You get on TV . . . there's
something to that."
After class, the students give their assessment. They appreciate the
power of their professor's tactics.
"People might say the obesity lawsuit is frivolous," says 23-year-old
Jake Kramer. "But they're still talking about it, and that's what
matters."