Fast Food

Fast Food Nation: An Appetite for Litigation

US Lawyer John Banzhaf Was the First to Sue the Tobacco Companies in the mid-Sixties. Now He Wants to Prosecute the Junk-Food Industry for Making Americans Obese

by Andrew Gumbel

John Banzhaf likes to pose this challenge to students who enroll in his graduate class on legal activism at George Washington University, in Washington, DC. Think of something that really irritates you or smacks of obvious civil injustice, he tells them. Then think of a way of using the law to right the wrong and seek redress.

In other words, as Professor Banzhaf himself puts it with the freewheeling candor we have come to expect from both heroes and villains in the American legal system, let's sue the bastards.

It's a unique approach to legal education that has had some astonishing results down the years. Banzhaf's students successfully forced the stuffy Washington Cosmos Club to admit women for the first time, and got dry-cleaners to stop charging women more than men for laundering their shirts. Back in the 1970s, they sued Spiro Agnew, the Vice-President who left office in disgrace shortly before his boss, Richard Nixon, forcing him to return the bribes he had received.

Most famously, Banzhaf pioneered the notion of suing tobacco companies for the deleterious health consequences of smoking. He started doing it in the mid-1960s, when everyone thought he was nuts, and he was still doing it in 1998 when the US states successfully pried hundreds of millions of dollars out of the Big Five tobacco companies as compensation for their smoking-related health-care costs. If tobacco advertising is now banned on television, and smoking no longer tolerated on planes or in shops and restaurants in many parts of the United States, it is largely due to Banzhaf's 35 years of campaigning and savvy application of public-interest law.

And now, he has a new target: the junk-food industry. America, as we all know, is the fattest nation on the planet and getting fatter all the time. According to a report by the US Surgeon-General, released a few months ago, 61 per cent of Americans are now significantly overweight, compared with 55 per cent in the early 1990s, and 46 per cent in the late 1970s. Obesity generates $117bn in annual medical bills and triggers 300,000 premature deaths each year.

Is this a health problem on a par with the effects of tobacco-smoking? Banzhaf thinks so, and the government's figures are there to bear him out. Can the fast-food companies and the agribusiness giants, the packagers and marketers, be held responsible for the problem? Banzhaf argues that they are certainly the ones stuffing the nation's consumers full of fat, sugar and chemical additives. With a little statistical analysis, he believes, it should be possible to assign specific shares of the blame to specific companies.

And so, he is embarking on a new adventure in legal activism. Already, his graduate class has inspired one lawsuit, against McDonald's, and at least three others are in the works around the country. And that is just the beginning. As a recent magazine headline memorably put it, he wants to see whether Americans can sue their own fat asses off.

Banzhaf, it must be said, is far from your stereotypical litigation lawyer, forever looking out for an opportunity to screw a corporation or public institution and make a fast buck. Not only does he not make a penny from the suits that he inspires, he would, in fact, much rather not bring them in the first place. He would love it if the government would overhaul the food industry to make Americans healthier, just as he would have preferred the government to take action on smoking unprompted. But America is a country where recourse to the courts is frequently the only way to effect social change, since Congress and the federal government are all too often beholden to powerful industry lobbies, and public activism is rarely effective on its own because of the country's sheer size and deep-rooted conservatism. As the mantra goes, "If you can't regulate, litigate", and that is exactly what Professor Banzhaf has in mind.

"If government is willing to regulate, force disclosure of fat and calorie content, get fast food out of schools, put more health foods in vending machines, install bike racks and showers at public buildings to encourage more exercise, and so on, great," he said in an interview. "But if government does with obesity what it did with tobacco, which is largely nothing, then we may be forced to go to our third branch, the legal system."

The big question is how to go about it. It's one thing to say that diet has a lot to do with the growing obesity problem in America, quite another to prove in court that client A's heart attack was caused specifically by McDonald's hamburgers, or by excessive bingeing on Cherry Coke. Nobody sticks to one brand of food like they stick to one brand of cigarettes, so individual suits are out of the question and class action suits would have to depend on highly complicated statistical analyses of food intake and medical cause and effect. Also, unlike smoking, there is nothing intrinsically unhealthy about eating. From the standpoint of food chemistry, at any rate, the worst that can be said about junk food is that it contains large amounts of sugar and fat, both of which are actually important parts of a balanced diet as long as they are consumed in moderation. Can individual food companies really be held responsible for the immoderate appetites of their customers? Clearly, if there is a legal case to be made, it is going to have to be fairly ingenious.

Banzhaf's approach is a gradualist one, to start with the relatively easy stuff and see how far he can take it. The first line of attack is to go after food companies that misrepresent their products by understating the fat content, say, or omitting to mention certain ingredients. That is the basis of all the suits currently going through the courts. The second, slightly harder one is to accuse companies of making misleading health claims for their products - proclaiming pork to be "the other white meat", for example, when its fat and cholesterol content are in fact closer to beef than to chicken.

The third approach would be to pick up on sins of omission, or failure to warn consumers of certain health risks. Is it wrong of a fast-food chain to fail to point out that its triple-bacon double cheeseburger supersize meal contains more fat than any sane human being should consume in a week? Arguably