While the nation suffers through high
unemployment, international conflict, massive budget deficits and record numbers
of Americans without health insurance, Congress is busy crafting a legislative
solution to a problem that does not exist: so-called frivolous lawsuits against
food manufacturers and retailers arising out of obesity-related health
problems.
The House passed its attack on this problem, "The Personal
Responsibility in Food Consumption Act," on March 10. Introduced by Rep. Ric
Keller, an Orlando Republican, who as it happens is a recipient of large amounts
of campaign cash from food and beverage industry donors, the bill would broadly
insulate food manufacturers and retailers from liability in courts for
obesity-related health damages. Republican Sen. Mitch McConnell of Kentucky,
another frequent recipient of the food industry's largesse, has a similar bill
pending before the Senate Judiciary Committee that he has dubbed the "Common
Sense Consumption Act."
Curiously, common sense seems not to have been
consulted in the drafting of the bills. Keller's original version would have
prevented any lawsuit against any food seller for any reason other than failure
to comply with applicable regulations. This scorched-earth proposal would have
eliminated vital safety incentives in the food supply, resulting either in a
tremendous amount of physical harm to consumers or the development of a massive
federal and state bureaucracy to fill the gaps created by the bill. Perhaps for
those reasons, Keller agreed to narrow the scope of liability protection to
obesity-related claims only, prompting House Judiciary Committee Chairman James
Sensenbrenner Jr., a Wisconin Republican, to predict that "This legislation will
put a stop to these ridiculous, frivolous lawsuits that threaten American jobs
and raise food prices for schools and the public."
The only element
missing in this war is an enemy. Put simply, there is no problem of frivolous
obesity-related litigation. The American practice of requiring civil litigants
to bear their own court and attorney costs gives parties strong financial
reasons to bring only meritorious or deeply-felt claims to court. Moreover, the
tiny handful of cases that have been brought to court on behalf of obese
plaintiffs have been dismissed in rapid order. State courts, it seems, are more
than able to separate frivolous from legitimate claims, much as they have done
for the last two centuries without the meddling assistance of Washington
legislators.
Indeed, this fact was made embarrassingly clear when the
Congressional Budget Office conducted a cost estimate of the requirements of
Keller's bill. As the CBO recognized, the cost of eliminating liability for
obesity-related health damages is equal to "the foregone net value of damages
awards." But, the CBO further noted, "no such lawsuits have been completed" and
"it is unlikely that there will be many new cases filed in the
future."
The problem addressed by the bill, in other words, is
"negligible."
The forgotten value of lawsuits, on the other hand, is
their ability to focus attention on social problems that other institutions have
failed to address. Courts are the one forum in our system where the concerns of
ordinary citizens must be heard and answered, even if the answer is a swift and
sharp dismissal of the claim. In that sense, the filing of lawsuits does not
represent a "culture of victimhood," as McConnell put it when touting his bill,
but rather a starting point for the working out of what plagues
us.
Instead of facing up to the massive public health problem of obesity,
our Republican leaders in the other branches of government seem more interested
in lecturing. Earlier this year, for instance, the White House caused a stir by
challenging a World Health Organization report on the global incidence and
effects of obesity. According to a Health and Human Services official, the Bush
administration believes that government action to combat the obesity epidemic is
inappropriate because obesity is a matter of, guess what, "personal
responsibility."
To some extent, the administration's view is undeniable
-- no one physically forces individuals to scarf unhealthy food -- but a more
compassionate administration might try to understand the plight of consumers who
find themselves negotiating a gauntlet of super-sized temptations in a
biological vehicle that is fundamentally ill-evolved for the task.
What
plagues us now is not frivolous lawsuits, but a host of economic and situational
factors that make responsible diet and exercise profoundly difficult to achieve,
including most significantly a food industry that benefits tremendously from our
daily struggles and therefore has an interest in perpetuating
them.
Congressmen who are busy pursuing frivolous legislation and
spouting righteous diatribes about non-existent problems should get to work on
weightier matters.
Douglas A. Kysar is a member scholar of the Center
for Progressive Regulation and an associate professor of law at Cornell Law
School. He wrote this commentary for the Orlando Sentinel.
