The Heavy Weight of Helpless Obesity*

by Felix R. Livingston, Ph.D.

“Big media” reports that there is an obesity epidemic threatening the health of hapless Americans being seduced by the likes of Ronald McDonald. Such nonsense plays into the hands of America’s food police who want to control our diet, eager “victims” and tort attorneys who hope to line their pockets with dollars appropriated from offending “big food” defendants, and an intellectual elite intent on foisting their prescriptions of the good life on their fellow citizens. The idea of helpless obesity and misplaced attempts by some to coercively save the rest of us from making choices they disapprove of place a heavy weight on American society. It diminishes our dignity, perverts our sense of justice, and undermines the foundation of our constitutional democracy.

Freedom, Human Dignity and Prudence

The World Health Organization recently reported that 300 million people in the world are obese, another one billion are overweight, and 70 million people die each year of cardio-vascular disease, the world’s leading cause of death. The Journal of the American Medical Association reports that a government study predicts poor diet and physical inactivity will soon exceed tobacco as America’s leading preventable cause of death. U. S. Health Secretary Tommy Thompson said in March that “We’re just too darn fat . . . and we’re going to do something about it.” Thompson said that deaths in America related to poor diet and lack of exercise increased by 33 percent during the last decade, and that 400,000 people died of these causes in 2000.

A few intellectuals and trial lawyers contend that an obesity “epidemic” is occurring because most people are just not capable of making responsible food choices. They assert that forces outside of our control determine our actions. For example, Yale University psychologist Kelly Brownell, who coined the term “toxic food environment,” says that while fast food isn’t addictive, people “can be seduced into a lifestyle that leads them to eat unhealthy foods.” Brownell has also said, “We are a place where it no longer makes sense to blame people for a problem their environment is causing.” Others say that because vending machines are around every corner and billions of advertising dollars are spent to promote food containing high levels of fat, sugar and salt, it is next to impossible to avoid dietary excesses. Habits acquired by people eating fast food make them incapable of exercising the self-control required to quit.

Those who hold these views of helpless obesity say that government must solve this problem by playing a more active role to keep people from hurting themselves through their food choices. They advocate policies such as banning or imposing significant taxes on selected food products, regulating the content of processed foods, mandating a placement of warning labels on high-fat, high-calorie menu items, and requiring other informational labeling for packaged foods, menus and menu-boards in restaurants, movie theaters and virtually every other business that sells fast food, ice cream and candy. They also support tort liability cases against fast food companies that they believe are responsible for obesity-related health problems.

These proposed “solutions” to the problem of so-called helpless obesity may or may not reduce our waistlines, but they most assuredly will damage the long-term health of our society. When we are no longer held personally accountable for the consequences of our good or bad choices, our nobility as freely choosing and self-judging beings is compromised, the lessons of our experience are lost, and our choices are characterized by a moral atrophy. Frederic Bastiat, 19th century French political philosopher writes, “from earliest childhood to extreme old age, life is a long apprenticeship. We learn to walk by repeated falls; we learn by hard and repeated experiences to avoid heat, cold, hunger, thirst, excesses. We complain that experience is a hard teacher; but if it were not, we should never learn anything.” If we can’t be allowed to make simple food choices without governmental interference, then how can we be trusted to properly raise children, and to choose our life’s work? In fact, how can we be expected to self-govern ourselves in a democracy?

Freely choosing among alternatives and recognizing a connection between causes and consequences provide us opportunities to exercise our moral judgment and to develop our prudence, one of the most important of all virtues. Primitive humans survived in a hostile environment by repeating actions that yielded rewards and by avoiding situations that imposed harsh penalties. David Hume observes that before an extended social order could develop prudential humans had to adopt a “stability of possession convention” for property. At some point in the distant past they discovered that the long-run social disadvantages of plunder outweigh any short-term private windfall gains. Agreeing to let others enjoy goods acquired legitimately without fear of plunder provides, in Hume’s words, a “foundation for our moderation and abstinence” because it is a guide for determining what is ours to use and enjoy and what belongs to others for their use. Hume asserts that ideas of rights, obligations and property are closely intertwined, and that once concepts of justice and private property were contrived, small autonomous tribal units grew into extended and complex social orders. A corollary of Hume’s observations is that a perversion of the general rules of property and justice will weaken and ultimately destroy the extended order of peaceful social cooperation.

The Perversion of Justice and Self-Responsibility

In recent years the general rules of property and justice have come under attack by a tort liability offensive being waged against the medical profession in general and politically incorrect industries in particular. Having decimated companies in the asbestos industry, and basking in the glow of their victory against “big tobacco,” trial lawyers seeking to develop new money-making opportunities, and intellectual elites interested in controlling a larger part of our lives are collaborating to mount a broad attack against “big food.” George Washington University law professor and social activist John Banzhaf has warned, “If the fast food companies come in and say we are not responsible for the obesity epidemic, my argument is that is exactly the argument the tobacco industry used, and we beat them.” In a 2002 issue of The National Law Journal he asserts that if any fast food suit succeeds, then new legal targets will include makers of candy and high-calorie food, including manufacturers of cake mixes and potato chips, to name only a few. “You could sue practically anybody under this theory.” He adds, “If this (obesity) lawsuit gets anywhere, it’ll make the asbestos (litigation) look like a walk in the park.” As reported in Time, Professor Banzhaf said: “A fast food company like McDonald’s may not be responsible for the entire obesity epidemic. But let’s say they’re five percent responsible. Five percent of 117 billion dollars (the Surgeon General’s estimate of direct and indirect costs associated with obesity in 2000) is still an enormous amount of money.”

The attack strategy being developed against “big food” will reportedly parallel the strategy used to bring “big tobacco” to its knees. Trial lawyers will portray their obese clients as helpless victims of a deceitful fast food industry that misleads customers into thinking that fast food is healthy. But there are significant differences between addicted smokers having a cigarette and obese people eating a French fry. Although Samuel Hirsch, the lawyer involved with a now-dismissed obesity suit against McDonald’s, claimed that McDonald’s food is “physically or psychologically addictive,” this doesn’t square with the Food and Drug Administration’s definition of addiction. The FDA has delineated four attributes that together define a condition of addiction: first, compulsive use of something despite the knowledge that it’s harmful; second, a “psychoactive” or direct chemical effect produced in the brain; third, reinforcing behavior that promotes additional use; and fourth, withdrawal symptoms when deprived of the substance. While trial lawyers were able to convince juries that cigarettes meet the threshold of addiction, most people are skeptical that fast food should be considered in the same category. A July 2003 Gallup poll survey revealed that only nine percent of Americans are in favor of obesity lawsuits and this figure was no higher for people who consider themselves overweight. Although smoking is directly linked to lung cancer, obesity is a function of several factors, including diet, genetics, lack of exercise, and culture. Also, moderate smoking can still be harmful to health, but moderate eating (not including starvation) is not. Finally, while claims are made that second-hand smoke can kill innocent bystanders no such assertion can be made for fast food.

The difficulties inherent in the “big food” assault will most likely not dissuade trial lawyers from attempting to develop this new source of revenue. If successful, their contingency fees will likely exceed the $30-plus billion received in the tobacco settlement, and there is always a chance that a sympathetic judge will change rules and then apply them retroactively to punish so-called corporate wrongdoers. The 18th century French political philosopher Montesquieu advised that judges should never be “more than the mouth that pronounces the words of the law, mere passive beings incapable of moderating either its force or rigor.” Judges once followed this advice. In a 1908 issue of the Harvard Law Review, James Barr Adams wrote, “The early law asked simply, ‘Did the defendant do the physical act which damaged the plaintiff?’ The law of today, except in certain cases based upon public policy, asks the further question, ‘Was the act blameworthy?’” Now, almost 100 years later, plaintiffs can successfully sue whether or not a defendant was negligent or, in certain circumstances, whether they had anything to do with the harm that occurred. In a case involving International Harvester, the “exercise of prudence or care” by the company was actually ruled “irrelevant.” This change in tort liability law did not occur because of new legislation, but because of ex post facto legal rulings by activist judges. These arrogant innovators believe they are completely justified in implementing new theories to guide the state’s use of coercion for achieving “fair and just” outcomes. Despite their assaults on property rights and the democratic process they are, in Adam Smith’s words, “apt to be very wise in [their] own conceit” and “enamored with the supposed beauty of [their] own ideal plan of government.”

One evolved rule, “joint and several liability,” enables plaintiffs who do not know the exact origin of a product that caused injury to sue all companies in the industry or to target only one. With this rule, a company with “deep pockets” can be forced to pay 100% of compensatory damages, even if it was not at fault or was accountable for a negligible fraction of the harm. The most favorable tort liability rule for plaintiffs and their lawyers is “several liability with no contribution.” If a tort is judged intentional, this rule enables plaintiffs to sue several companies separately and to force each company to pay 100% of the value of the harm. If, for example, someone successfully sues McDonald’s, Burger King, Wendy’s and KFC, this tort liability rule enables the victims to receive an amount four times the value of the harm. Another evolved rule known as “strict products liability,” stipulates that a manufacturer can be held liable if its product is found defective in manufacture (e.g., a missing part causes an engine to break loose from its mounting), or warning (e.g., the dangers of using a product are not clearly explained to consumers), or design (e.g., an SUV tire disintegrates when under-inflated). Because of imaginative judicial rulings in product liability law, manufacturers can now be held strictly liable for all accidents arising from the use of their products, even if there was egregious consumer misuse (e.g., using a lawnmower to trim a hedge). And notwithstanding a clearly and comprehensively worded warning label, consumers can successfully sue companies even when they knowingly assume risk by using the product.

In the acrid environment of tort law some manufacturers have stopped producing certain products. A Conference Board survey of chief executive officers found that 47% of respondents dropped one or more product lines because of liability concerns. They also reported stopping development of some products and canceling the introduction of others. Pharmaceutical manufacturers have been reluctant to supply certain beneficial drugs because of product liability fears. Many companies that continue to supply products have been forced to buy insurance for each of its customers. At the same time, companies that still provide liability insurance have lowered limits of coverage and sharply increased premiums. Because of liability rules, the costs and prices of all affected products are higher and must be absorbed by company shareholders and consumers, most of whom do not have “deep pockets.” Strict liability rules provide no legal incentive for consumers to take precautions to avoid accidents or to make choices that would normally be considered prudent. In fact, the monetary incentives encourage us to become “helpless” victims. When the consequences of imprudent behavior are not eliminated by law but are merely passed along to others, “The result,” in Bastiat’s words, “is one injustice the more and one moral lesson the less.”

The Rule of Law and Tyranny

A judge must examine details of a plaintiff’s complaint and defendant’s response and then decide whether or not there is sufficient reason to proceed to trial. Because of judicial innovations in tort liability law, many cases now go to trial that would have been previously thrown out. When litigation is costly and there is no certainty as to how the court will evaluate evidence developed at trial, incentives are created for defendants to negotiate out-of-court settlements to avoid risk of unfavorable judicial decisions and for lawyers to “test the waters” for new sources of revenue for themselves and their clients. The attorney in a current suit against Bayer AG has publicly predicted that his litigation on behalf of more than 1,400 plaintiffs will eventually cost the company $50 billion. The Wall Street Journal reported that when this lawyer left a Texas courtroom he whispered to the Bayer counsel, “Your stock price is going in the tank. You can stop this.” The implication was that Bayer can avoid losing a very large sum of money by agreeing to a smaller multimillion-dollar settlement. Current tort liability rules place companies in an untenable position. Even if they believe they are not at fault, they will agree to settle to avoid the possibility of massive losses. Adam Smith wrote in the Wealth of Nations that the second duty of government is “the duty of protecting, as far as possible, every member of the society from the injustice or oppression of every other member of it.” Significant aspects of contemporary tort liability law fail to provide this protection and create instead a fertile environment for extortion.

Limited constitutional government means that we are ruled by law and not by men, and that everyone is equal before the law. Furthermore, “The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will,” wrote John Stuart Mill, “is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant . . . Over himself, over his own body and mind, the individual is sovereign.” Until the last half of the 20th century, the “rule of law” in America meant that no individual could be punished or compelled to forfeit property unless there had been violation of written law as interpreted by the courts. Today it is difficult, if not impossible, to abide by laws that are changed and applied retroactively by activist judges. Equality before the law traditionally meant that no person is above the law, and that no law will unfairly target particular individuals or companies. But this is precisely what is happening to politically incorrect industries, including tobacco, the manufacturers of firearms and purveyors of fast food. Trial lawyers, activist judges and their intellectual supporters are accomplishing what 20th century socialists were unable to do. They are implementing the formula “From each according to his ability (i.e., “deep pockets”), to each according to his need (i.e., helpless victims of corporate greed).” And trial lawyers responsible for these transfers have raked in tens of billions of dollars. This is tyranny pure and simple because it substitutes the rule of trial lawyers and activist judges for the “rule of law.” Aristotle once warned that “ . . . he who bids the law rule may be deemed to bid God and Reason alone rule, but he who bids man rule adds an element of the beast; for desire is a wild beast, and passion perverts the minds of rulers, even when they are the best of men.”

Summary and Conclusion

We frequently observe that courses of action yielding short-run benefits can be unexpectedly pernicious over a longer period. What seems to be a logical means of achieving a desired end can create significant and unintended long-term consequences. A few intellectuals, activist lawyers and judges have turned the traditional meaning of the “rule of law” on its head. In their quest to solve the problems of “bad” consumer choices, they are chipping away at the foundation of limited constitutional government. It is remarkable that we have allowed this to happen because arbitrary power makes all of us less secure and less free. Upon his arrival in England, French writer and philosopher Voltaire commented that he had left the realm of French despotism and entered a land where laws were strict but not arbitrary. It seems that in 1717 French authorities sent Voltaire to the Bastille for a poem they found offensive. This occurred even though Voltaire hadn’t written the poem and didn’t even know its author. France’s violation of Voltaire’s nonmaterial rights almost three centuries ago isn’t much different than the violation of material rights occurring today in tort liability suits. Whether or not they are guilty of injuring plaintiffs, companies are being sued for activities that were legal when undertaken, and are being forced to pay damages that are driving small and large businesses alike into bankruptcy. France was a typical despotism during the 18th century, and America is becoming a contemporary judicial despotism.

There is a large realm of human action that should remain outside legal sanction. Choices here are either morally neutral or should be guided by self-imposed allegiance to moral and social guideposts. Choosing freely in accordance with objectives, values and hierarchies of virtues, sometimes making mistakes, and then modifying our actions develops our prudence and gives a moral dimension to our decisions. Paternalistic lawgivers who limit freedom in order to protect individuals from making choices considered bad by an elite, retard development of individual responsibility and extinguish human dignity. We are no longer moral agents when we can only be obedient and follow our protectors’ orders. Intrusive lawgivers are the shepherds and we are their flock, they are the sculptors and we are their clay, they are the despots and we are their slaves. Freedom means that some of us will gain an excessive amount of weight. While advocates of freedom don’t endorse an unhealthy lifestyle, they assert that obesity, however each of us decides to define it, can be avoided by choices reflecting self-imposed standards. Through freedom each of us can become as thin, and as good and as noble as we really want to be.

*This essay will be published in a forthcoming issue of Felix R. Livingston, ed., Independent Reflector, (P.O. Box 551145, Jacksonville, FL 32255: Vol. 3, No. 1, 2004).