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The Case Against Big Fat
Anthony Sebok, professor of Law at Brooklyn Law School, has a nice biweekly column in FindLaw's website. In a pair of installments from last year, he neatly addresses the arguments that may be invoked against Big Fat in the now-notorious class-action lawsuit filed by a Bronx resident (Caesar Barber) who claims that eating fast food made him fat. I read both of the columns, thought about it a bit, discussed with my law-school friends, and finally decided to present my view of the case.
1. Product Defect
This is the concept that a product, either by dint of manufacture or design, is defective and the original creating company is culpable for damages inflicted by the use of the product. Both in the case of Big Tobacco and Big Fat, manufacturing defects are not the issue, however. It is the question of a design defect.
At first glance, design defect seems like an excellent argument against Big Fat. Fast food is clearly engineered, meaning that it is eligible for consideration as a designed product. Unlike a steak, a Big Mac has very specific composition that was determined by McDonalds to have certain desired taste characteristics, even at the expense of nutritional value. Given that the primary purpose of food - even fast food - is arguably nutrition, McDonalds food is arguably defective in its design.
The problem with the design defect argument is that most states require that a safer, alternative design (that has identical function and meets the original purpose of design) be presented in order to make the charge stick. If such an alternative design cannot be found, the design is said to be manifestly unsafe, meaning that it is not the company's fault that the product is dangerous - it's the fault of Mother Nature.
What is a clearly superior alternative to the Big Mac that will still satisfy the original design parameters of optimal taste and ease of preparation? A gardenburger might be offered up as an alternative, but will juries agree that it is an adequate replacement to the beef patty? What about the French fry? They could be baked instead of fried, but then it wouldn't be a "fry," now would it? Isn't fat and sugar and salt the whole point of fast food in the first place?
I say that, but some interesting counter-evidence that could be presented would be McDonald's own redesign of the French Fry a few years back, when consumer pressures demanded that they switch from using beef tallow to vegetable shortening as the cooking fat. The problem was, while customers hated cholesterol, they also loved the taste that beef fat gave the fries. What was to be done?
After a few years of R&D, McDonald's found that the beloved beef fat taste derived from a complex assortment of aromatic compounds that naturally occur in beef tallow. By extracting those compounds from beef tallow and adding them to vegetable shortening, an adequate and nearly indistinguishable alternative to the original frying recipe was formulated and implemented at all McDonalds stores nationwide. Most customers never knew the difference, except that now McDonalds signs all advertised "100% Pure Vegetable Oil Used."
To the extent that it can be argued that McDonalds has failed to extend this level of product design improvement to their entire line of fast food offerings, design defect may successfully be invoked to hold Big Fat culpable for the poor health of its customers. I suppose the next step that McDonalds could have taken with the Fry would have been to investigate alternative preparation methods (as I half-joked above). They could look into using fat substitutes. They could try baking or roasting or a more benign version of frying, or even some strange combination of all those in order to come up with a drastically healthier alternative to their current French fry.
Of course, the slippery slope argument starts to creep up with this approach. At what point is it okay for McDonald's to stop R&D on healthier BigMac and fries, arguing that they are "manifestly unsafe designs" outside the realm of design defect? And does McDonalds have to conspire with all the other Big Fat corporations in order to force consumer choice towards safer designs? Doesn't that start to sound like product censorship?
The tobacco plaintiffs tried to invoke design defect reasoning when they presented evidence that Philip Morris in the late 1970's had developed a less carcinogenic cigarette (that contained, among other things, a miniature catalytic convertor at the filter stage made out of palladium catalyst) and at the last minute decided not to market it for fears that it would imply that regular cigarettes were dangerous. The plaintiffs lost that argument because it could not be shown that even if the better cigarette were available, the plaintiff would have chosen to smoke them.
2. Failure to Warn
This is the familiar concept that Big Fat failed to disclose known risks about the consumption of fast food to customers.
The problem with Failure to Warn is that just about everyone knows that fast food is bad for you. However, it could be argued that fast food restaurants need to label their food with the equivalent of the FDA's Nutrition Facts box currently found on the side of most supermarket products, or alternatively a warning similar to those found on cigarette boxes ("Warning: The surgeon general has found that the consumption of hamburgers can lead to clogged arteries, increased risk of Alzheimer’s, and general obesity."). The presence of these labels on food and tobacco products could be thought to have created a reasonable expectation that risks of fast food consumption be disclosed by Big Fat.
By the way, in the case of Big Tobacco, Failure to Warn has consistently lost as a primary argument against cigarette makers for the same concerns I mention above. Everyone knows that smoking is bad for you and each pack you buy contains a warning on it and has for decades. Instead, what has gotten Big Tobacco into trouble is ...
3. Fraud
This historically has taken two forms in product liability torts: flat-out lying and targeted advertising.
The flat-out lies are where Big Tobacco fell: they deliberately lied on the witness stand over decades of cover-ups and misleading press releases. However, Big Fat has never gone on the record the way that Big Tobacco did in Congress years ago, and nobody thinks that McDonalds would ever argue that a steady diet of Big Macs wouldn't cause heart disease, anyway.
Besides, the law only allows for damages to be awarded if the plaintiff can show that they actually relied on the faulty information presented to them to make a damaging personal decision. In the case of Big Tobacco, it isn't clear that smokers believed the lies they were being fed by the cigarette makers and that that caused them to pick up or continue smoking. The dangers of smoking are so well known and widespread that it is hard to accept that Big Tobacco's lies persuaded anyone.
When it comes to children, who don't have the rational powers of fully formed adults and who are especially vulnerable to societal pressure, fraud in the form of targeted advertising is entirely tenable. For decades, cigarette makers equated certain things - money, fun, sex, health - with smoking in their ads, clearly misrepresenting the facts as they knew them to be. Big Fat could similarly come under fire for their ads that attempt to hook kids on fast food.
Hook? As in addiction? Yup. One of Sebok's most brilliant points is that advertising can create addiction. Indeed, one of the cornerstones of modern marketing theory is that advertising is literally the creation of needs and wants, not just the broadcasting of the relative merits of competing products. Through the miracle of the magazine spread and television spot, Gillette invented the market for disposable razors, General Mills the market for sugary breakfast cereal, Big Tobacco the cigarette, and now Big Fat will come under fire for convincing millions of American children that what they really need more than anything else is a Happy Meal. While "freedom of choice" gets touted as an argument against the effectiveness of advertising, Sebok argues that the raw statistical data do not support that hypothesis. And it is hard not to believe him: after all, why would companies continue to advertise if they didn't get clear results from it?
The FDA has long struggled with a technical definition of addiction and failed. Sebok recommends that we consider something addictive if: "the substance, in the environment in which it is used, produces unhealthful consequences that the individual with a desire to stop them, nevertheless cannot stop." On that count, advertising could be held culpable for creating certain addictions, such as those for fast food. But whether tort court is the right venue for righting that broad, societal correlation is questionable. The problem with leaving it up to the politicians is that they also fall prey to another correlation: namely, that they will do whatever the corporations want them to, irregardless of societal good. It is hard to trust them with the task of making addictive advertising illegal.
So, for now, perhaps the best thing to do is to let the tort courts handle the question of how advertising creates addiction. Maybe if enough plaintiffs win cases, our lawmakers will get the message and put restrictions on addictive advertising methods.
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I think Sebok has successfully argued that the class-action suit pending against Big Fat has legal merit, especially as fraud in the form of targeted and deceptive advertising. I think even the design defect theory may be successfully argued up to a point, although the slippery slope analogy might lead to an undesirable legislative censorship of manifestly unsafe designs (such as the Big Mac and the Marlboro Red).
In either case, it is clear to me that corporations deserve to start standing trial for manipulating societal forces that create pressures and addictions, rather than continuing to hide behind the false veil of "freedom of choice." In many ways, people today make choices that are far worse than those they made a century ago, and a lot of it is due to evil marketing practices. That holds even though people in the 21st century are better educated and sophisticated (and cynical) than ever before. Those who would argue for personal accountability miss the point. No matter how hard we try to tell our kids and ourselves otherwise, we still want our Fruit Loops and Big Macs. I blame advertising and the corporations behind the vast and unimaginable strategies to sell us things that we not only don't need, but are ultimately bad for us. Because they help create the addictions, they should be judged for them.
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