August/September, 2002

From the Editor

Fast Food Fight

Caesar Barber is Plaintiff Number 1 in a lawsuit filed recently that claims the fast food industry provides inadequate and deceptive nutritional information and that, through its marketing efforts, creates fast food "addicts" who are helpless victims.

Mr. Barber is a 272-pound maintenance worker who blames McDonald's, Burger King, Wendy's and Kentucky Fried Chicken for his obesity and health problems, including high blood pressure, high cholesterol, several heart attacks and diabetes.

Mr. Barber explains he ate fast food constantly because he was single, the food was quick and Mr. Barber is not a good cook. He also claims that it was not until after his second heart attack that anyone told him that chowing down on fast food might not be good for his health.

Well...

The National Restaurant Association has called the lawsuit absurd. It is, of course, correct. But the restaurant industry should really treat this lawsuit with great seriousness.

I can easily recite the arguments against the lawsuit: First, all of these restaurants sell a wide variety of food, and Mr. Barber was as free to buy a salad as a Big Mac. Second, there is no evidence that any food, in and of itself, causes any disease or even obesity, so if there is a problem, it is with Mr. Barber's lack of moderation. If he went to McDonald's every day and ordered a small hamburger, small fries and a diet soda, an adult male would be hard pressed to gain weight. Third, diet is only one side of the coin; physical activity is the other. Had Mr. Barber exercised sufficiently to burn up what he ate, the same diet would not have caused obesity.

I could go on and on, but all this is really beside the point.

The point is that lawyers now have the fast food industry in their crosshairs. The industry will surely defeat Mr. Barber, but the tobacco industry won many cases for decades before it was faced with massive taxation, onerous class-action settlements and restrictions on advertising.

There are really three motivations behind these lawsuits — the first is the easiest to understand: Money. Lawyers, individuals and special interest groups see fast food restaurants as juicy, rich targets that will be anxious to avoid bad publicity — they see a big payday up ahead.

The second motivation is more pernicious. It is an attempt to use the courts to achieve what they cannot achieve with the legislatures. Put another way, it is a subversion of democracy.

After all if fast food restaurants are doing something wrong, the solution is obvious: Go to the state legislatures or to Congress and ask for a law restricting the nefarious activity. But doing so means engaging in the long and difficult process of influencing public opinion and translating that opinion into legislation. And it might never work. The public or the legislatures might never see it your way.

But, as with smoking, an opinion-making elite wants to short-circuit the democratic process.

In fact, it is a class issue. Those who dine at Le Cirque need not worry too much about the availability of cheap, satisfying food. It is easy for them to be holier than thou and rely on the fact that many a judge will be anxious to be part of elite opinion.

So the Judiciary, the least democratic of our branches of government, will gradually move to see individuals as victims and thus create causes of action which will cause changes in the way food is sold and marketed.

You will hear, and sooner than later, complaints that Ronald McDonald is the Joe Camel of the fast food industry and you can expect the judiciary to lead in restricting this type of expression.

Of course the third motivation behind this and similar lawsuits is perhaps the most dangerous to our economy, our country, and indeed our way of life. This lawsuit is an expression of a notion that people are fundamentally stupid and need elites to dictate to them.

Mayor Bloomberg in New York is now calling for a ban on all smoking in any bar or restaurant. The reason: The help in these restaurants gets exposed to second-hand smoke.

I don't smoke and don't much like being around smokers, but I take responsibility for my choices and I want to live in a society where I have options, even if sometimes I make different decisions than some self proclaimed do-gooder thinks I should.

Mayor Bloomberg is wrong in his approach because the wait staff that takes those jobs are adults, fully able to decide if they want to take the risk of working in a smoking environment or not.

Mr. Barber is also wrong because it is his responsibility to take care of his life and to learn about how to eat healthy and stay healthy. If he decides to take a risk by eating a fatty meal, smoking a cigarette or by parachute jumping out of a plane, well he can't come crying later that "big business made me do it." It would be more correct to go with that old bromide: The devil made me do it.

If we give in to the forces that would dictate our small vices — a smoke, a fatty meal, a glass of whiskey, or a game of chance — we divorce ourselves from the opportunity to make small but correct decisions. And if we are not given the option to do small things wrong, how will we ever learn to do big things right?

No problem, the dictators will be ready to restrict us there as well. Today the attack is on fast food; count on it being other restaurants, retailers and food manufacturers as time goes by.  DB