Jennifer Pomeranz

Unlike Minnesota, 24 states have successfully enacted laws that limit liability or otherwise immunize the food industry from lawsuits related to claims of obesity or associated health problems.[5] These laws are largely a response to lawsuits brought in the early 2000s in which teenage-plaintiffs argued that fast food restaurants should have some responsibility for the country’s obesity epidemic, including their personal weight gain and health problems.[6]

A federal version of the Personal Responsibility in Food Consumption Act was introduced in the U.S. Congress in 2005. It received significant media attention and was the subject of heated Congressional debates. For example, in the House of Representatives, Rep. John Schwarz spoke in favor of the bill, arguing that

The most important step we can take to curb obesity is to impart to everyone in this country that obesity can be controlled when we take personal responsibility. A healthy and consistent diet, with an adequate amount of exercise, will work wonders. That’s the simple truth. . . .  Allowing consumers to sue their local restaurant, to sue half the food industry, means that we are telling our citizens, “It’s not your fault that you are obese.” . . . I support this legislation because it sends the message to everyone in the United States, young and old, that taking control of your weight is your responsibility, and taking personal responsibility is the only way that weight control can be achieved.[7]

Many public health advocates consider this type of position to be a form of victim-blaming which targets individuals who lack adequate access to healthy food and space that facilitates physical activity.

Opponents of the bill questioned why the federal government would want to allow an industry to act without the benefit of judicial oversight. Rep. Pete Stark explained that

Many of the pending cases are for false advertising, claiming food is low fat when it’s really not, and this bill is so broadly worded that it would preclude such cases from going forward. The threat of legitimate lawsuits against fast-food corporations is as much a part of creating social change as is the threat of a Congressional investigation. . . . Even more important than the issue of obesity or Congressional meddling in the judicial branch is the fundamental right of every American to have their day in court. . . . Congress has no business preemptively closing the courthouse doors to a particular group of Americans.[8]

This sentiment was echoed by consumer advocates, including Michael Jacobson, the executive director of the Center for Science in the Public Interest. He contended that “[i]f someone is saying that a 64-ounce soda at 7-Eleven contributed to obesity, that person should have his day in court. If it’s frivolous, the courts are accustomed to throwing those out.”[9] He described the food industry’s efforts “to get special exemptions from lawsuits” as “shameful.”

The federal Personal Responsibility in Food Consumption Act was reintroduced three times but ultimately has failed to become law. During the last decade, however, the National Restaurant Association has been instrumental in encouraging state legislators to pass so-called “commonsense consumption” laws,⁹ with Alabama’s bill being the most recently active in a state legislature.[10]

These “commonsense consumption” laws, which some have dubbed “cheeseburger bills,” raise a challenge for public health. They effectively remove or preempt individuals’ ability to turn to the court system to pursue obesity-related litigation.[11] While some of these lawsuits may be frivolous, others have the potential to influence how the food industry operates.

Some scholars have drawn parallels to the role of litigation against the tobacco industry in the 1990s. Although the thought of an individual suing a tobacco company for an illness allegedly related to smoking may not have been initially popular, those lawsuits and subsequent settlements led to the public availability of millions of pages of internal tobacco company documents. According to Professor Richard Daynard, “People changed their minds when documents started to come out about how tobacco companies misled customers about the alleged health benefits of light and low-tar cigarettes.”^[9]

Daynard and others believe that a similar change could occur “when people learn the elaborate ways in which companies market products they may know to be unhealthy.”^[9] The public loses the chance to learn about the food industry’s potentially harmful practices each time a state enacts a “commonsense consumption” law. In addition, the time and resources spent debating these bills could be better spent directly addressing the underlying public health issues related to obesity that persist throughout the nation.[12]

Jennifer Pomeranz is the Director of Legal Initiatives at the Rudd Center for Food Policy & Obesity at Yale University. She publishes and speaks on issues related to marketing to children, regulating unhealthy products, labeling, weight bias, and the government’s role in obesity and food policy.