Litigating food for fun and profit

posted at 8:31 am on September 15, 2012 by Jazz Shaw

Jon Entine has a long, long piece at Forbes this week in which he discusses one of the less tasty results of the ongoing battle of the bulging waists of Americans. But before we get to that, Jon highlights one theory about why people are bulking up. It’s all evolution’s fault!

Three million years ago, Lucy—the partial skeleton of a young woman who has come to iconically represent our distant ancestor Australopithecus afarensis—roamed the fertile plains of North Africa. She survived mostly on fruits and seeds. With a brain roughly the size of a chimpanzee, Lucy was dimwitted and didn’t need a lot of calories to feed the high demands of advanced cogitation.

Flash forward to 2012. Our brains are more than three times as large. According to what’s known as the Expensive Tissue Hypothesis, large brains are high-energy consumers. Brain size and diet are closely correlated. Consistent with an adaptation to a high-quality diet, modern humans also evolved relatively small gastrointestinal tracts. The smarter we became, the more calories we needed. Humans with a genetic knack for storing fat would have had a Darwinian advantage.

In other words, As Elizabeth Kolbert quipped in her 2009 New Yorker essay on the growing obesity problem, “just as it is natural of gorillas to love leaves, it is natural for people to love funnel cakes.”

I suppose there are genetic tags which affect every aspect of human development, but I would argue that social evolution – which happens in a single generation at times – has a far larger impact than any long term, biological changes. People living 100 years ago were, on average, much thinner, but not because they were fundamentally different from us on a genetic level. They were identical in any measurable fashion. But they had to work a lot more, spent more time outdoors and in motion, and took food far less for granted. Hungry, hard working people tend to be leaner.

But moving on to the subject of the article, Entine focuses on one particular group of people who have been taking a great interest in this phenomenon. It’s not doctors or farmers or fitness experts. It’s trial lawyers, because the best answer to any problem is to sue somebody.

Or, as is beginning to unfold in tort happy America, we could just sue. In the past few months alone, more than a dozen lawyers who previously had hit the class action lawsuit jackpot by suing tobacco companies have turned their sights on global food producers, restaurants and even grocery stores chains in hopes of yet another mega payday. They’ve filed more than 25 cases against international food companies, including ConAgra, PepsiCo, Heinz, General Mills and even yoghurt manufacturers.

To the ostriches in the food industry, beware: You are in the crosshairs of the NGO-Media-Class Action Bar Complex.

The author describes a history of litigation which came in waves, where lawyers sought to profit from class actioin suits based on an evolving set of attack strategies. The first, beginning in the seventies, claimed that selling unhealthy foods was irresponsible and caused health problems. These cases were largely dismissed. A second wave beginning in the nineties focused on claims of “false advertising” which tricked people into getting fat. These were also weak on the legal merits, but some merchants – like McDonalds – settled the nuisance suits out of court to avoid protracted appeals and bad public relations.

This encouraged a third wave in the early 2000s based on claims of fraud. Retailers were, according to the lawyers, misstating the calorie count in their products so consumers couldn’t make an informed choice. These found a lot more traction in the courts and have forced many restaurants to publish calorie counts in addition to paying out plenty of cash to the plaintiffs and their legal teams.

And now comes the next wave: it’s a conspiracy to create a slave society of food addicts.

Now we are entering wave four, with the Kessler thesis front and center. The new popular narrative accuses ‘Big Food’ of conspiring to create food addicts who crave processed products that are fun to eat but nutritionally deficient. That wide net provides plenty of deep pockets that plaintiffs can target, from processors to food marketers to grocery chains and insurance companies, and even to states and the federal government, which could be on the legal hook if a wayward court should decide that fast foods represent “crimes against the people.” Welcome to the NGO-Media-Class Action Bar Complex.

Activist lawyers and NGOs claim their goal is to educate and empower the public. They do have an argument. From a public health standpoint, it does not even require court victories to spark public debate and prod truculent companies into writing clearer labels and introducing healthier alternatives. But make no mistake: this coalition is classic jackpot litigation.

So what’s missing from all of this? As usual, there is absolutely zero mention of personal responsibility. The courts are willing to entertain arguments which are premised on an assumption that the American people are little more than a collection of helpless sheep with driver’s licenses. (And let’s face it… based solely on the sort of people we seem to keep electing in New York, there may be something to that theory.) Even though almost all of us can walk into the store and choose to pick up a bag of carrots, celery, or lettuce, we are somehow powerless to avoid the twelve pack of Hot Pockets once we are exposed to the clever advertising on the box. And you can’t be expected to drive past the Krispy Kreams store when the neon “Hot” sign is lit, can you?

Clearly none of this is your fault. So just sue them! And once you collect your cut of the settlement – after your lawyers skim off the lion’s share of it – you can go spend the money on supersizing your fries.


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Torts for tarts, yippee!

hillsoftx on September 15, 2012 at 8:37 AM

A WWII vet I worked for got me to visit his personal care home while the guys were eating. He was well over 80!

Then he asked me what I noticed about the 12 or 14 guys sitting there. I quickly answered “They are all older.”

“No you imbecile”, (He was at Iwo Jima so I took abuse) he said, “What about their size?”

They are shorter than kids today, they are thin..

Thats it! he said, “Where do you think the fat ones are?”

I left, determined to lose a good amount of weight.

And did.

IlikedAUH2O on September 15, 2012 at 8:41 AM

Torts for tarts, yippee!

hillsoftx on September 15, 2012 at 8:37 AM

Don’t forget tortes and tortellini.

Drained Brain on September 15, 2012 at 8:44 AM

She survived mostly on fruits and seeds.

Yeah, when she wasn’t eating an animal of some sort that her father, brother, or mate had killed.

We evolved eating animals. We can’t deny that and the last few thousand years of eating plants has not changed us.

We didn’t start getting fat from these foods because most of us had physically demanding work to do either on a farm or in a factory. Now that we’re mostly office workers, we are seeing what really happens when we eat plants.

You want to be thin? Either work your butt off in the gym (literally) or cut out the sugar, grains, and other things high in carbohydrates.

/rant

Odysseus on September 15, 2012 at 8:45 AM

If companies weren’t making good-tasting, unhealthful food, people would still be cooking it themselves!

Cajun food is proof positive :-)

cane_loader on September 15, 2012 at 8:48 AM

Lawyers love this stuff and this is why most love liberals. Keep making laws for profit.

-

Our brains are more than three times as large.

Well except for the average Obama supporter. Not much change there.

CW on September 15, 2012 at 8:53 AM

And you can’t be expected to drive past the Krispy Kreams store when the neon “Hot” sign is lit, can you?

Like a moth to a flame, jazz…….

ted c on September 15, 2012 at 8:54 AM

Here we go.
Go to my link & learn about real geneticists doing real research regarding genetics & obesity.
There is not an epidemic of obesity in the world, or even in this country.
What we have is genetics, & yes some obesity due to eating too much & being sedentary bcs in America we have a better standard of living, AKA Better Access To More & Better Food.
Back in the American colonial days, 1700s, there were people remarking upon this very same thing: Obesity. They were thinking there was a n epidemic back then as well.
It had to do with Americans having more access to more food.
Even our British cousins who visited us across the ocean remarked upon how much bigger, not even fat necessarily, that Americans were compared to them.
ACCESS TO FOOD.
Having a layer of fat has always meant success.
And don’t get me started on this new protein DEFICIENT school lunch diet. My students are reporting going away hungry every single day. I’m thinking about having a daily survey. I work in 2 schools. It would be interesting.
These kids’ brains are starving. They can’t think & I’ve noticed a big difference this year. Bcs in the schools I teach in lunch participation is very high.
I am actually encouraging students to bring their own lunches or to have snacks like beef jerky in their lockers.

Badger40 on September 15, 2012 at 8:56 AM

Speaking of litigating for profit.
I’ve mentioned this woman before, an attorney & ranch wife from Wyoming, who has researched EAJA abuse by environmental groups.
I imagine the same types of things go on in all kinds of litigation.
Read this info. It’ll pi$$ you off to no end.

Badger40 on September 15, 2012 at 9:00 AM

badger is right. Access to food is the probably the biggest contributor to obesity. couple that with inactivity and you get obesity.

Put the kitchen a mile a way and walk to it to eat is the best way to reduce it.

2c

ted c on September 15, 2012 at 9:02 AM

There is nothing more greedy and unethical than a class action lawyer. Absolute leeches.

tommyboy on September 15, 2012 at 9:03 AM

I blame the government! Yup, if Kennedy hadbn’t sent us to the moon we wouldn’t have been a compute society (those danged transistors and microchips) and kids wouldn’t be growing up stuck in the house playing games as youngsters and growing obese and soft.

So it’s the government that needs to diet! Heh!

Vote for Romney to put it on a diet. “It’s for the children.”

Don L on September 15, 2012 at 9:07 AM

what about people with high metabolism? I can eat a whole dog and not gain any weight.

There is nothing more greedy and unethical than a class action lawyer. Absolute leeches.

tommyboy on September 15, 2012 at 9:03 AM

Obama was a class actioner…he pioneered the Sub Prime loan crisis, and got rich while his poor minority clients got “exactly nothing” as Paul Ryan would say.

Slade73 on September 15, 2012 at 9:17 AM

So can drunks sue liqour stores now too? Sex addicts sue Playboy? Gamblers sue card & die makers,Casinos? Compulsive shoppers sue Shopping Malls? Pillheads sue pharmacies?

workingclass artist on September 15, 2012 at 9:18 AM

The smart people warned us this would be logical conclusion of all the tobacco lititgation – suing food producers and massive regulation of what we can eat. The libs just said they were being alarmist and that would never happen. Who knows what is next.

tommyboy on September 15, 2012 at 9:22 AM

I want to sue Playboy, cause it’s pics are lame

Slade73 on September 15, 2012 at 9:24 AM

its!

Grammar is hard

Slade73 on September 15, 2012 at 9:25 AM

One of the most misleading factors in the whole obesity argument is the use of BMI to measure obesity.

I am 6’5″ 245 lbs. I am very fit and muscular. No one would consider me overweight much less obese, yet according to my BMI I am OBESE. I would expect that at least 1/2 if not more of the people being considered obese by the BMI are not or anywhere close.

Walk through the mall. You may see the occasional obese person but most people are slim to slightly overweight. Like manmade global warming, the entire obesity epidemic is a fiction created to steal our individual liberties.

mitchellvii on September 15, 2012 at 9:27 AM

not me michellvii! I’m the model of good health and diesel physic.

well, except for the smoking, drinking, and occasional illicit drug. But look at Mick Jagger.

Slade73 on September 15, 2012 at 9:34 AM

Obesity is our greatest nat sec threat. We know this cuz Mooch and the shrill one told us so. Just another govt hoax like agw. They better leave my Little Debbies alone.

Kissmygrits on September 15, 2012 at 9:36 AM

Walk through the mall. You may see the occasional obese person but most people are slim to slightly overweight. Like manmade global warming, the entire obesity epidemic is a fiction created to steal our individual liberties.

mitchellvii on September 15, 2012 at 9:27 AM

“The whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by menacing it with an endless series of hobgoblins, all of them imaginary.”
H. L. Mencken

tommyboy on September 15, 2012 at 9:37 AM

I’m tired of Democrats running on fear and hate, while accusing Pubs of running on fear and hate. Makes me want to eat an 72 ounce stake with a Double Big gulp slurpee disguised in a fountain drink cup for half the price.

I’m going craaaaaaaaazy

Slade73 on September 15, 2012 at 9:43 AM

Krispy Kreams

Krispy Kreme.

Maybe you were on a sugar high when you wrote that. :P

itsnotaboutme on September 15, 2012 at 9:44 AM

Walk through the mall. You may see the occasional obese person but most people are slim to slightly overweight. Like manmade global warming, the entire obesity epidemic is a fiction created to steal our individual liberties.

mitchellvii on September 15, 2012 at 9:27 AM

Go to your local Wal Mart, that is the fatties mall.

Rio Linda Refugee on September 15, 2012 at 9:45 AM

tee hee

love that “people of Walmart” series

Slade73 on September 15, 2012 at 9:48 AM

I want to sue Playboy, cause it’s pics are lame

Slade73 on September 15, 2012 at 9:24 AM

*snicker*

workingclass artist on September 15, 2012 at 9:50 AM

“Just one tiny wafer”

Ugly on September 15, 2012 at 9:56 AM

With a brain roughly the size of a chimpanzee, Lucy was dimwitted and didn’t need a lot of calories to feed the high demands of advanced cogitation.

.
Would that be a full grown chimpanzee or a newborn? And what size head was required to accomodate a brain the size of either chimpanzee?

News2Use on September 15, 2012 at 9:56 AM

If fat people are criminals, better throw them in the clink with White People and Racist Hispanics.

Slade73 on September 15, 2012 at 10:00 AM

Go to your local Wal Mart, that is the fatties mall.

Rio Linda Refugee on September 15, 2012 at 9:45 AM

I went to Wal Mart a few days ago. Saw the same assortment of Americans I see everywhere. If you must generalize, keep it under your belt.

Ugly on September 15, 2012 at 10:03 AM

Monty Python’s The Meaning Of Life

part VI; The Autumn Years, is the grossest most disgusting piece of video that made me laugh my butt off.

listens2glenn on September 15, 2012 at 10:12 AM

Lucy became a feminist. Thought she could have it all – but by the end of the day she was exhausted and discovered prepackaged processed foods, 1 step meals & fast food restaurants…..these easy foods made her family happy and her life easier. Add in a sedentary life style and Lucy’s family became FAT. I say the trial lawyers go after Gloria Steinem – it is all her fault!

WiRichey on September 15, 2012 at 10:13 AM

I have an observation I’ll share from being well traveled across the United States over my lifetime.
Think about the general geographic areas of the United States. Now think about the GENE pools of humans that are in these areas.
Many places in the United States were settled by certain ethnic groups, including sub groups of the Caucasian gene pool. And the descendants of those groups still cluster around the places their ancestors settled, still interbreeding with similar groups.
The same thing happened in Ireland, Scotland & the main British Isles.
When I travel out East from North Dakota during the summer, I notice people getting fatter & fatter & fatter as I go south east.
I have noticed in ND as well the influx of out of staters & how some of them are more obese than the native North Dakotans by a higher %.
And these people are almost always from places like IN, IL, AL, LA, AR.
I’m talking general patterns here of course.
This is not to say that everybody from these places is obese. I don’t feel I have to state this obvious point, but I know there is going to be some retarded troll here that wants to jump on my a$$ for it, so there’s the disclaimer.
Back to my original point is this: Genetics plays a huge role in obesity & it is beyond being lazy & eating bad food.
There were fat people thousands of years ago & will continue on that way.
Different gene pools give us different phenotypes regarding obesity & it is up to the individual to consider their genetic factors when deciding what to eat.
Like Native Americans, many of these tribes have grown fat, not bcs they are necessarily lazy or eat bad food, but bcs they are eating a white man’s diet that they are not genetically able to handle.
The ignorance of diet is astounding.
And I attribute that to no solid diet science having been done in the past.
The scientific method was clearly lacking in the early days of this diet junk science movement.
It is slowly being corrected.

Badger40 on September 15, 2012 at 10:14 AM

The ignorance of diet is astounding.

Badger40 on September 15, 2012 at 10:14 AM

Yup.

*gurgle*

;)

Ugly on September 15, 2012 at 10:19 AM

There is nothing more greedy and unethical than a class action lawyer. Absolute leeches.

tommyboy on September 15, 2012 at 9:03 AM

.
Thank you for that ‘specification’.

Too many times, I hear this criticism of “lawyers” in general (all inclusive) and we really need to make the general public’s perspective more pointed on this matter.

listens2glenn on September 15, 2012 at 10:20 AM

Walk through the mall. You may see the occasional obese person but most people are slim to slightly overweight. Like manmade global warming, the entire obesity epidemic is a fiction created to steal our individual liberties.

mitchellvii on September 15, 2012 at 9:27 AM

.

“The whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by menacing it with an endless series of hobgoblins, all of them imaginary.”
H. L. Mencken

.
tommyboy on September 15, 2012 at 9:37 AM

.
Right-on, mitchell.
.
tommyboy, that’s a great quote I’ve not read (or heard) before.

I’m swiping it ! : )

listens2glenn on September 15, 2012 at 10:33 AM

News2Use on September 15, 2012 at 9:56 AM

More amazingly, current brains are apparently the size of 3 chimpanzees.

boone on September 15, 2012 at 10:34 AM

Like manmade global warming, the entire obesity epidemic is a fiction created to steal our individual liberties.

mitchellvii on September 15, 2012 at 9:27 AM

“The whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by menacing it with an endless series of hobgoblins, all of them imaginary.”
H. L. Mencken

tommyboy on September 15, 2012 at 9:37 AM

This is it exactly: yet another stealth way to try to control the food supply. And the operative word is control.

Years ago, I read an article that illustrated the Mencken quote above perfectly, except it was about the media. It said something to the effect that most newscasts, whether they were local or national, would likely be only 15 minutes or less, if there was an accident, fire or flood to report. The padding, if you will, came from all kinds of alarmist reports, of which AGW is the most prominent and egregious example, designed to create doubt and frighten the average person. The article even had the demographic breakdown — apparently those types of reports were tailored for women, 35 – 50, since they were the prime consumers and would be the most inclined to fall for whatever the alarm du jour was.

Ever since I read that, when I bother to watch TV news at all, I note with a very jaundiced eye how they insert those kinds of reports and laugh cynically to myself. It’s yet another aspect of the whole “Let’s Create a Narrative” thing.

PatriotGal2257 on September 15, 2012 at 10:40 AM

Badger40 on September 15, 2012 at 10:14 AM

I am sure what you are saying is true but I love how this whole conversation is being couched as a national security problem.

Cindy Munford on September 15, 2012 at 10:49 AM

listens2glenn on September 15, 2012 at 10:12 AM

Nuance

Ugly on September 15, 2012 at 10:58 AM

Ugly on September 15, 2012 at 10:58 AM

.
Of course, there was no way you could have known that I hadn’t eaten yet this morning.

Maybe I’ll wait for supper . . . . . .

listens2glenn on September 15, 2012 at 11:09 AM

Sorry. lol.

Ugly on September 15, 2012 at 11:11 AM

I am sure what you are saying is true but I love how this whole conversation is being couched as a national security problem.

Cindy Munford on September 15, 2012 at 10:49 AM

It is seriously deranged. And shows how desperate the narrative has become to control us.

Badger40 on September 15, 2012 at 11:19 AM

If fat people are criminals, better throw them in the clink with White People and Racist Hispanics.

Slade73 on September 15, 2012 at 10:00 AM

…New York will be the first state that will put people in jail for being a certain percentage over their ideal body weight…give them time!

KOOLAID2 on September 15, 2012 at 11:20 AM

Go to your local Wal Mart, that is the fatties mall.

Rio Linda Refugee on September 15, 2012 at 9:45 AM

It appears you’ve been successfully programmed by the progs’ Hate Walmart movement.

slickwillie2001 on September 15, 2012 at 11:32 AM

…New York will be the first state that will put people in jail for being a certain percentage over their ideal body weight…give them time!

KOOLAID2 on September 15, 2012 at 11:20 AM

It will be interesting to see how the federal government will sort out those who are over the % due to food, as opposed to those, like myself, who are over due to the drugs necessary to stay alive.

I wait await their arrival to get me with much anticipation.

Yoop on September 15, 2012 at 11:45 AM

A little over 50 years ago, I came out of Army basic training weighing 152 pounds (at 5’6″ tall).
Since then, I have eaten as much of whatever I wanted to eat – without regard to calories, cholesterol, additives or anything else other than flavor and desirability.
And now,after 50+ years of really “bad” eating habits, I find that my weight has climbed all the way to 160 pounds.
I wonder if I should go on a diet….in the interest of ‘national security’?

Solaratov on September 15, 2012 at 12:02 PM

Or, maybe I should sue someone…for something.

Solaratov on September 15, 2012 at 12:05 PM

Man cannot live on lettuce alone. I consider it governmental abuse that they are trying to make us do so.

Alana on September 15, 2012 at 12:12 PM

heres how to fix the issue.
everybody mind their own damned business and sod off…

dmacleo on September 15, 2012 at 12:21 PM

heres how to fix the issue.
everybody mind their own damned business and sod off…

dmacleo on September 15, 2012 at 12:21 PM

You really don’t understand the nature of liberals/leftists, do you?

They could no more mind their own business and leave others alone than a zombie could stop eating people.

Solaratov on September 15, 2012 at 12:35 PM

What the dem sheeples dont realize is when you give the gov. the “responsibility” over our healthcare (sickcare) they then have the “respnsibilty” to make you healthy…whether you want it or not…sad little sheeple.

airmonkey on September 15, 2012 at 12:38 PM

They could no more mind their own business and leave others alone than a zombie could stop eating people.

Solaratov on September 15, 2012 at 12:35 PM

+1

airmonkey on September 15, 2012 at 12:38 PM

We need to bring back “Loser pays All” lawsuit rules. The only reason the US doesn’t have them is because we tried to stick it to the British back in the mid 1800′s.

It was a stupid idea.

Voyager on September 15, 2012 at 1:38 PM

Hey, I love carrots, celery and lettuce and consume them often but we’re not rabbits and who wants the repressed diet of a deranged supermodel?

And on the subject of overweight and obesity:
If it’s so unhealthy and deadly, how is it that so many live on?
In the event of the predicted food shortages or, horrors, an impending famine, guess who survives longer?

stukinIL4now on September 15, 2012 at 2:00 PM

Good points Jazz. And I would add “shame” to the list of reasons. Or more precisely lack of shame. It’s an emotion that used to keep behavior in check. Now few have it. From lawyers who sue for ridiculous reasons to people who are obese and musicians who glorify “big butts” in their songs to people who can work but refuse to and on and on. People don’t feel shame for their behavior anymore and society has made it acceptable to blame everyone but ourselves for our problems. And I’m not just talking about obesity.

stukinIL4now on September 15, 2012 at 2:00 PM

Perhaps overweight people are living longer but are they living healthier? I would suspect a huge chunk of what gets spent on healthcare gets spent on treating illness that wouldn’t be if the patient were a healthier weight.

hopeful on September 15, 2012 at 3:44 PM

Lucy: Clearcut Case of Evolutionist Fraud

davidk on September 15, 2012 at 5:19 PM

The number of overweight and obese people is commonly based on BMI over a certain value. That number has been revised twice since being introduced. Both times, the number was revised downward, so that more people could be called overweight or obese.

This is what Leftists do: make up science to ensure they can control us. See global warming, obesity, etc.

SDN on September 15, 2012 at 5:25 PM

Walk through the mall. You may see the occasional obese person but most people are slim to slightly overweight. Like manmade global warming, the entire obesity epidemic is a fiction created to steal our individual liberties.

mitchellvii on September 15, 2012 at 9:27 AM

Go to a Walmart.

Go to a hospital.

Walk around a downtown other than NYC.

Go to a bariatric surgery office and see the 300-400 pound 20 somethings looking for a cure for their unhealthy lifestyle.

Ohio has drive-through minimarts so people don’t have to get out of their cars.

The obesity epidemic is very real. It is being used by the government to get more control, but it’s still real.

talkingpoints on September 15, 2012 at 5:57 PM

Anyone else notice the resemblance of Axeldork to Mr.Creosote??

USN Corpseman on September 16, 2012 at 4:35 AM

Three million years ago, Lucy—the partial skeleton of a young woman who has come to iconically represent our distant ancestor Australopithecus afarensis—roamed the fertile plains of North Africa. She survived mostly on fruits and seeds. With a brain roughly the size of a chimpanzee, Lucy was dimwitted and didn’t need a lot of calories to feed the high demands of advanced cogitation.

Flash forward to 2012. Our brains are more than three times as large. According to what’s known as the Expensive Tissue Hypothesis, large brains are high-energy consumers. Brain size and diet are closely correlated. Consistent with an adaptation to a high-quality diet, modern humans also evolved relatively small gastrointestinal tracts. The smarter we became, the more calories we needed. Humans with a genetic knack for storing fat would have had a Darwinian advantage.

In other words, As Elizabeth Kolbert quipped in her 2009 New Yorker essay on the growing obesity problem, “just as it is natural of gorillas to love leaves, it is natural for people to love funnel cakes.”

The pseudoscience of evolution mythology

tom on September 17, 2012 at 10:22 AM