Litigating food for fun and profit

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.