The Weight Debate

Oct. 22, 2003

ATLANTA—Stern words, barbed accusations and some ominous predictions about the restaurant industry's responsibility for America's obesity problem were served up during an hour of titillating debate on Sept. 23 at the 44th annual Multi-Unit Food Service Operators show.

More than 1,000 attendees witnessed a sometimes-terse war of words between foodservice industry advocates Steven Anderson (president of the National Restaurant Association) and Rick Berman (president of the Center for Consumer Freedom), and their opponents John Banzhaf (professor of public interest law at George Washington University Law School in Washington, D.C.) and Ben Kelly (executive director of the Public Health Advocacy Institute [PHAI]).

Suffice it to say, there wasn't a lot of love on the stage.

Banzhaf, best known as the lawyer who took on "Big Tobacco," and Kelly regarded for his efforts in the 1960s and '70s to increase automobile safety, said repeatedly during the debate the U.S. restaurant industry must accept some share of the blame for the country's growing obesity problem. And while Kelly appeared to invite cooperation with the industry to reverse what he called an obesity epidemic, Banzhaf was decidedly more bellicose.

"I think it's very clear that we will be successful in suing fast-food restaurants to pay their fair share (of the responsibility) for obesity," said Banzhaf.

John Banzhaf, Professor of public interest law at George Washington University Law School

"I think most of you are reasonably sure that we're going to find a judge who will let these suits go forward. And somewhere we'll find a jury that's going to rule in our favor."

Both Anderson and Berman countered regularly, claiming consumers who make poor dietary and lifestyle choices are to blame for obesity and related illnesses, not the restaurant industry. Anderson accused Banzhaf and Kelly of looking for scapegoats to sue rather than looking for solutions to the problem.

"This is all about calories in and calories out," said Anderson, adding that Americans' increasingly sedentary lifestyles have contributed significantly to the country's weight-gain problem. Research done over the last 20 years, he said, has shown that Americans' physical activity has dropped 15 percent, while their calorie consumption has risen just 1 percent. "It's important to remember that 76 percent of all meals are eaten at home, not eaten in restaurants."

Steven Anderson, President, National Restaurant Association

When debate moderator Tim Ryan, president of Hyde Park, N.Y.-based Culinary Institute of America, asked the four men if any common ground existed between the two camps, the answer largely was no.

Playing the centrist throughout the debate, Kelly turned and asked the audience of foodservice company leaders if there was "a place for all of us to come together where a difference can be made in this health problem?"

Not if restaurant companies are sued over the issue, Anderson said.

Banzhaf assured the group that outcome was inevitable.

"I think both sides know that these suits are going to continue coming and eventually going to be won," he said. "In media article after media article, even our greatest detractors in the industry are saying, 'Yes, they will be winning these suits.' The question is how many, and how fast are you all going to respond to limit your liability?"

Can't we all just get along?

Berman said Kelly's attempt to position himself in the middle was deceptive in light of a PHAI-hosted event in June that was held specifically to encourage and support obesity-related litigation against the restaurant industry.

start quoteLitigation comes first, litigation makes the breakthroughs (and) generates a lot of public opinion, which puts pressure on legislators to act—and they are going to act.end quote

-- John Banzhaf,
Professor of Law, George Washington University

"They went into the conference to figure out how to file a lawsuit, not to solve the problem," Berman said. "Ben did not allow people to come to the second day of the conference unless they signed a waiver that they would not work—and do not work—in the food industry. (T)hey didn't want foxes in the henhouse."

Berman also called Banzhaf "an amazing PR machine" who claims he hasn't benefited financially from tobacco lawsuit victories and won't share in the potential spoils of a food industry lawsuit. But Banzhaf's establishment and oversight of a foundation containing nearly $4 million from tobacco lawsuit victories, which pays him a salary, proves otherwise, he said.

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"Things are not always what they appear to be," Berman said. "When you hear some of the comments here, understand there's a lot more spin than law. You just have to get on top of the spin."

Several times in the debate, both Berman and Anderson accused Banzhaf of disregarding other lifestyle factors proven to contribute to obesity, such as too little exercise, family histories and all-around bad diets.

Kelly admitted those factors do play a role, but he said that the foodservice industry still must examine whether its products and its marketing of those products also are contributing to the problem. Denying all culpability, he said, will lead the foodservice industry toward the fate suffered by the auto industry 35 years ago.

"Everybody needed cars, so there was no threat that (safety) changes would put (the auto industry) out of business," Kelly said. "The industry had a choice, and they made what I believe was a poor choice for themselves, for society, for their children and for everybody."

The result, he said was multiple, major product liability lawsuits against automakers that could have been avoided.

"If the past is a precursor, then I think we're seeing the future right here," Kelly said.

When Ryan asked Banzhaf if he thought the foodservice industry was as responsible for Americans' obesity problem as the tobacco industry is for smoking-related health problems, he said no because tobacco was proven in court to be a defective product.

However, he said there are enough similarities between the problems caused by tobacco and those blamed on restaurant food to pursue comparable litigation.

When Berman mentioned

Rick Berman, President, Center for Consumer Freedom

the September dismissal of an obesity lawsuit against McDonald's (see related story Case Dismissed) as proof of the frivolity of that and similarly threatened lawsuits, Banzhaf was undeterred and insisted Judge Robert Sweet's ruling in the case gave lawyers new insights on how to succeed in upcoming obesity cases.

Banzhaf said the judge suggested that inadequate nutritional information and false advertising claims by restaurant companies could become potential liability loopholes he and other lawyers may exploit.

Berman sharply disagreed with Banzhaf's interpretation of Sweet's ruling.

"The spin on this case is far different from what the actual case shows," he said. "This was a slam dunk for McDonald's. It was a big a loss as you can get in a lawsuit."

Suggesting fast-food is addictive, Banzhaf cited an obesity study reported on this year in New Scientist magazine claiming humans, like rats tested in the study, undergo physiological changes when ingesting food high in fat and calories.

Anderson said the study proved nothing and that its conclusion that "food is addicting ... is patently absurd. It changes the whole definition of addiction. John can't make that leap from tobacco to food without some measure of addiction. I think he takes this whole study totally out of context." (The article is available at

Banzhaf's and Kelly's key problem, Berman insisted, is a belief that restaurant customers are victims rather than consumers who buy the industry's foods by choice. If consumers demand high-calorie foods in large quantities and at low prices, the restaurant industry is merely meeting market demands, he said.

start quoteThey went into the conference to figure out how to file a lawsuit, not to solve the problem. Ben did not allow people to come to the second day of the conference unless they signed a waiver that they would not work—and do not work—in the food industry. (T)hey didn't want foxes in the henhouse."end quote

-- Rick Berman,
President, Center for Consumer Freedom

Such logic may work with adult consumers, Banzhaf said, but a 10-year-old child can't be held accountable for bad dietary choices. And when he said foodservice operators should be held accountable not only for what they feed children, but how they market to them, Ryan, the moderator, weighed in.

"I have two children. I make the choices. I'm personally responsible" for their diets, he said.

Berman added, "You can talk about kids all day long, but kids don't drive to fast-food restaurants ... . If parents are exercising responsibility, kids are not eating there every day, three meals a day."

What's the endgame?

Kelly insisted public health groups like his don't view litigation as the sole solution to the country's obesity problem. The goal, he said, is to get foodservice companies to help customers make better-informed choices by providing them all the nutritional information available.

Such a feat is far easier said than done, however, said Berman. A restaurant menu bearing the nutritional information of every item available would have to be the size of "the Manhattan phone book," he said.

To demonstrate Berman's point, Anderson said that providing nutritional information for a mere five menu combinations at a standard hamburger outlet would result in a possible 120 combinations requiring labeling. "Fifteen items and you have 1.3 trillion possible combinations you'd have to label."

Banzhaf said no one is seeking such a detailed level of reporting. "All the major fast-food companies have this data on their Web sites. What we're suggesting is they put it up as it is on their menu boards, nothing more and nothing less."

Though the

Ben Kelly, Executive Director, Public Health Advocacy Institute

debaters disagreed that such nutritional revelations on menu boards and menus are imminent, Banzhaf predicted upcoming lawsuits will make them a certainty sooner than later.

"Within three to five years, every major fast-food restaurant will have up on its menu board, at the very least, calories and fat," Banzhaf said. History shows, he added, that litigation nearly always serves as the impetus for large cultural movements, such as those for civil rights, rights for the disabled and rights for non-smokers. Consumer rights for more information from the foodservice industry will be next, he said.

"Litigation comes first, litigation makes the breakthroughs (and) generates a lot of public opinion, which puts pressure on legislators to act—and they are going to act," Banzhaf said.

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