The March issue of the Harvard Business Review includes a fictional case study about a cookie company that has been sued for causing obesity. Four experts were asked to comment, including the Center for Consumer Freedom, and a trial lawyer who has won major verdicts for plaintiffs in tobacco and asbestos cases. He is perhaps the most prominent personal injury lawyer to endorse obesity lawsuits, and his reasoning, while tortured, tells us a great deal about what lies ahead.
“Because the risks posed by [the cookie company’s] traditional products outweigh their commercial utility,” the trial lawyer suggests, “they provide a basis for a defective-product-design case.” Unfortunately, in the twilight zone of the courtroom, this kind of “argument” has resulted in major payouts for trial lawyers.
Of course, it’s not like the cookies were actually “defective.” The worst that can be said of them is that they (like thousands of products we enjoy daily) contain partially hydrogenated oils. Consumers take note: trial lawyers are now judging the “utility” [read: taste] of a food product. If the “risk” outweighs the “utility,” well, you can say goodbye to your favorite foods.
It seems that trial lawyers have adopted the position of Kelly “Big Brother” Brownell, who argues that food companies “cannot be let off the hook for all the unhealthy products they’re still promoting.” But it turns out that marketing healthy products might result in lawsuits as well. As we note in the Harvard Business Review:
Some lawyers have even contemplated suing companies for marketing low-fat products. They reason that the public is somehow tricked into thinking that “low-fat” is a license to eat more.
Think that’s crazy? John “Sue the Bastards” Banzhaf promoted lawsuits against Weight Watchers. He argued the company shouldn’t be allowed to charge customers for nutrition information that common sense dictates we already understand. “Everybody knows that if you want to lose weight, you eat less with less calorie input and more exercise,” he stated. The bottom line, we wrote in the Harvard Business Review, is that “as long as there are trial lawyers and fat people, no large company whose products contain dietary calories will be immune from obesity related lawsuits.”