Is a grocer [legally] liable for simply placing the Oreo cookies on the shelf? Is your mom liable for her good cooking?” Unfortunately, these questions — posed by Senator Jeff Sessions (R-AL) at a hearing yesterday on legislation that would prohibit lawsuits blaming food companies when some of their customers got fat — are no longer far-fetched. John “Sue the Bastards” Banzhaf even advocates legal action against school board members and milk companies. And at a hearing on the House version of the same bill, he came perilously close to suggesting that, indeed, mom should be held liable for her cooking.

Senator Mitch McConnell (R-KY), sponsor of the Common Sense Consumption Act, argued: “The food police are now sounding the alarm and saying that the rise in obesity corresponds to the increased availability of fast food. What they want you to believe is that the food sellers are causing the obesity.

Earlier this year McConnell suggested that fast-food lawsuits “subvert the Democratic process,” “promote a culture of victimhood,” and “jettison the principle of personal responsibility.” We couldn’t have said it better ourselves.

Testifying yesterday, Dr. Gerard J. Musante, a Duke University psychiatrist and founder of a weight-loss clinic, agreed with McConnell:

These lawsuits do nothing but enable consumers to feel powerless in a battle for maintaining one’s own personal health. The truth is, we as consumers have control over the food choices we make, and we must issue our better judgment when making these decisions. Negative lifestyle choices cause obesity, not a trip to a fast food restaurant or a cookie high in trans fat. Certainly we live in a litigious society. Our understanding of psychological issues tells us that when people feel frustrated and powerless, they lash out and seek reasons for their perceived failure. They feel the victim and look for the deep pockets to pay. Unfortunately, this has become part of our culture, but the issue is far too comprehensive to lay blame on any single food marketer or manufacturer. These industries should not be demonized for providing goods and services demanded by our society…

Through working with obese patients, I have learned that the worst thing one can do is to blame an outside force to get themselves “off the hook,” to say it’s not their fault, and that they are a victim. To do this can bring about feelings of helplessness and then resignation. Directing blame or causality outside of oneself allows the individual not to accept responsibility and perhaps even to feel helpless and hopeless.

Victor Schwartz, co-author of the most widely used torts casebook in America, offered the legal case for McConnell’s bill:

Over the past decade, however, a new phenomenon has arisen in the law of torts. Former Secretary of Labor Robert Reich aptly called this phenomenon “regulation through litigation.” Here, the focus of tort law shifts away from its main purpose — compensating someone who has been injured by the wrongful conduct of another. The shift is toward a judge allowing a jury to make determinations that traditionally are the decisions of Congress, state legislatures, or regulatory agencies. The threat of massive liability exposure is used to change the behavior of a defendant. For example, to lower the price of a drug, to restrict the sale of a weapon beyond what is required by law or to cause a seller of food to change how it markets a product. In that way, those who are generally not elected and do not gather information through public hearings may, through one judicial decision, regulate or change how much we pay for things, what products we own, and how much they cost…

A noted consumer advocate, Professor John F. Banzhaf III, and others told me that the “regulation through litigation” concept focused solely on tobacco. I did not concur. Now we are on the threshold of a new approach to “regulation through litigation,” and the focus is food. It is not on food that contains a defect. It is on food that some health advocates believe causes harm, particularly obesity and diseases related to obesity. Everyone knows obesity can occur when people consistently overeat and fail to burn off the excess calories they consume. Everyone knows that repeated consumption of an excessive amount of French fries leads more quickly to obesity than eating a substantial portion of celery or lettuce.