[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]
PERSONAL RESPONSIBILITY IN FOOD CONSUMPTION ACT
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON
COMMERCIAL AND ADMINISTRATIVE LAW
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
ON
H.R. 339
__________
JUNE 19, 2003
__________
Serial No. 40
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://www.house.gov/judiciary
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COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
WILLIAM L. JENKINS, Tennessee ZOE LOFGREN, California
CHRIS CANNON, Utah SHEILA JACKSON LEE, Texas
SPENCER BACHUS, Alabama MAXINE WATERS, California
JOHN N. HOSTETTLER, Indiana MARTIN T. MEEHAN, Massachusetts
MARK GREEN, Wisconsin WILLIAM D. DELAHUNT, Massachusetts
RIC KELLER, Florida ROBERT WEXLER, Florida
MELISSA A. HART, Pennsylvania TAMMY BALDWIN, Wisconsin
JEFF FLAKE, Arizona ANTHONY D. WEINER, New York
MIKE PENCE, Indiana ADAM B. SCHIFF, California
J. RANDY FORBES, Virginia LINDA T. SANCHEZ, California
STEVE KING, Iowa
JOHN R. CARTER, Texas
TOM FEENEY, Florida
MARSHA BLACKBURN, Tennessee
Philip G. Kiko, Chief of Staff-General Counsel
Perry H. Apelbaum, Minority Chief Counsel
------
Subcommittee on Commercial and Administrative Law
CHRIS CANNON, Utah Chairman
HOWARD COBLE, North Carolina MELVIN L. WATT, North Carolina
JEFF FLAKE, Arizona JERROLD NADLER, New York
JOHN R. CARTER, Texas TAMMY BALDWIN, Wisconsin
MARSHA BLACKBURN, Tennessee WILLIAM D. DELAHUNT, Massachusetts
STEVE CHABOT, Ohio ANTHONY D. WEINER, New York
TOM FEENEY, Florida
Raymond V. Smietanka, Chief Counsel
Susan A. Jensen, Counsel
Diane K. Taylor, Counsel
James Daley, Full Committee Counsel
Stephanie Moore, Minority Counsel
C O N T E N T S
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JUNE 19, 2003
OPENING STATEMENT
Page
The Honorable Chris Cannon, a Representative in Congress From the
State of Utah, and Chairman, Subcommittee on Commercial and
Administrative Law............................................. 1
The Honorable Melvin L. Watt, a Representative in Congress From
the State of North Carolina, and Ranking Member, Subcommittee
on Commercial and Administrative Law........................... 3
The Honorable Howard Coble, a Representative in Congress From the
State of North Carolina........................................ 3
The Honorable Ric Keller, a Representative in Congress From the
State of Florida............................................... 5
WITNESSES
Mr. John Banzhaf, Professor, George Washington University Law
School
Oral Testimony................................................. 8
Prepared Statement............................................. 11
Mr. Victor Schwartz, Shook, Hardy & Bacon
Oral Testimony................................................. 30
Prepared Statement............................................. 31
Ms. Christianne Ricchi, Owner, i Ricchi Ristorante, Washington,
D.C., on behalf of the National Restaurant Association
Oral Testimony................................................. 33
Prepared Statement............................................. 35
Mr. Richard Berman, Executive Director, Center for Consumer
Freedom
Oral Testimony................................................. 37
Prepared Statement............................................. 40
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Prepared statement of Dr. Neal Barnard, President, Physicians
Committee for Responsible Medicine............................. 56
APPENDIX
Material Submitted for the Hearing Record
Prepared statement of the Honorable Robert W. Ney, a
Representative in Congress From the State of Ohio.............. 59
Prepared statement of Richard Berman, Executive Director, Center
for Consumer Freedom........................................... 59
Letter from the National Association of Manufacturers............ 63
Prepared statement of the American Insurance Association......... 64
Letter from Michael F. Jacobson, Executive Director, Center for
Science in the Public Interest................................. 66
PERSONAL RESPONSIBILITY IN FOOD CONSUMPTION ACT
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THURSDAY, JUNE 19, 2003
House of Representatives,
Subcommittee on Commercial
and Administrative Law,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to call, at 10:05 a.m., in
Room 2141, Rayburn House Office Building, Hon. Chris Cannon
(Chair of the Subcommittee) presiding.
Mr. Cannon. We are about ready to start, so if we can get
people to their seats that would be good. We thank you all for
coming out today to this hearing on H.R. 339, the ``Personal
Responsibility In Food Consumption Act.'' I am going to give an
opening statement and then yield time to Mr. Watt for a
statement. Then I believe Mr. Coble would like to say
something. And then we have with us today Mr. Keller, who is a
Member of the full Committee, not a Member of this
Subcommittee, but we will give him a period to make an opening
statement. And then we will turn to our witnesses.
Recently the food industry has been targeted by a variety
of legal claims alleging it should pay monetary damages and be
subject to equitable remedies based on legal theories holding
it liable for overconsumption of its legal products by others.
Our hearing today will explore the threat the food industry
faces from frivolous litigation, the threat to personal
responsibility posed by the proliferation of such litigation,
and the need for H.R. 339, the ``Personal Responsibility in
Food Consumption Act.''
H.R. 339 currently has 61 sponsors. A similar bill was
signed into law by Louisiana Governor Mike Foster on June 2,
2003, with huge bipartisan support. Every Republican in both
State legislative chambers voted for the measure as did 93
percent of Democrats in the Louisiana House and 83 percent of
Democrats in the Louisiana Senate.
Recent history shows why similar legislation might be
necessary at the Federal level. The tobacco industry once faced
lawsuits brought by 48 States, and it was ultimately forced to
settle those cost-prohibitive and potentially bankrupting cases
for $246 billion. Lawyers demonized the tobacco industry
throughout that time, and today Ralph Nader compares fast food
companies to terrorists, telling New York Times that the double
cheeseburger is, quote, a weapon of mass destruction, unquote.
Starting tomorrow, from June 20 to June 22, personal injury
lawyers from across the country, including John Banzhaf, who is
a witness here today, will gather at a conference designed to,
quote, encourage and support litigation against the food
industry, unquote. Attendees must sign an affidavit in which
they agree to keep the information they learn confidential and
to refrain from consulting with or working for the food
industry before December 31, 2006, which is apparently a
deadline for bringing the food industry to its knees in a
nationally coordinated legal attack.
The frivolous litigation we have seen already against the
so-called fast food industry if allowed to proliferate will
lead by their false logic to lawsuits against the food industry
generally. According to the Journal of the American Medical
Association, even the portion sizes of foods cooked at home
have grown substantially in the last two decades. As one
commentator has written, quote, one should understand who is at
risk, who big food really is. It is not just McDonald's, KFC,
Burger King and Wendy's, it is every food company in the
country. If McDonald's is liable for selling high caloric
meals, then so are local pizzerias and grocery stores, unquote.
Some say these lawsuits will soon reach your own backyard
barbecue unless Congress acts. It is clear that obesity is a
problem. Equally clear, however, is that obesity is caused by a
combination of too much consumption and too little exercise.
Recent findings drawn from Government databases and presented
at the Scientific Conference of the Foundation of American
Societies for Experimental Biology showed that over the past 20
years teenagers have on average increased their caloric intake
by 1 percent. During that same period of time, the percentage
of teenagers who said they engaged in some sort of physical
activity for 30 minutes a day dropped 13 percent. Not
surprisingly, teenage obesity over that 20-year period
increased by 10 percent, indicating that it is not just junk
food that is making teenagers fat, but rather their lack of
activity.
Public schools could offer more physical education classes
of course, but according to John Banzhaf, one of the witnesses
who will be here with us today, school boards will be the next
targets of obesity-related lawsuits because they allow vending
machines in schools. These lawsuits will take money away from
the schools just when they need more physical education
programs and transfer that money to personal injury attorneys.
And since inactivity is the leading cause of childhood
obesity, who might be sued after school boards? Television
manufacturers and those who produce popular television shows?
Manufacturers of comfortable couches?
Besides threatening to erode values of personal
responsibility, the legal campaign against the food industry
threatens the separation of powers. Nationally coordinated
lawsuits seek to accomplish through litigation that which
cannot be achieved by legislation and the democratic process.
As the now familiar John Banzhaf has said, if the
legislatures won't legislate, then the trial lawyers will
litigate, and then I suspect that the House of Representatives
will oversee this with greater and greater incisiveness.
The House recently passed H.R. 1036, the ``Protection of
Lawful Commerce in Arms Act,'' by a large bipartisan vote. That
bill bars frivolous lawsuits against the firearms industry for
the misuse of its legal products by others. H.R. 339, which
similarly seeks to bar frivolous lawsuits against the food
industry for the overconsumption of its legal products by
others, may also be an appropriate congressional response to a
growing legal assault on the concept of personal
responsibility.
I look forward to hearing from the testimony of our
witnesses today. And now, Mr. Watt, we would be happy to yield
to you for 5 minutes.
Mr. Watt. Thank you, Mr. Chairman. I confess that I have
trouble finding 5 minutes of things to say about this. I am
almost speechless at the arrogance of the state of mind of some
of my colleagues who believe that they can just undo anything.
They don't like the Constitution, so we constantly drop bills
that suggest that we arrogantly think that we are brighter than
the Founding Fathers, even though at the same time we are
saying we believe in States rights. We don't like the results
of the lawsuits, so we try to do away with our entire system of
common law remedies that exist in our country. We arrogantly
think that we somehow have a better way to do this. And I
just--I am just flabbergasted by it.
In fact, I started laughing when I heard--when my
legislative aide told me that we were having this hearing
today. This is laughable. And it is counterproductive, I think,
because if you follow the proposed legislation the only likely
result that I could think of is that you will get to more
regulation because the checks and balances that exist in our
legal system that allow private litigants and businesses to
work these things out in the course of business won't get you
there because it will be undermined by what we are here trying
to do today. So you will end up with more regulations defining
what the acceptable parameters are rather than juries or
litigants making those definitions as common law has allowed to
play out throughout the history of this country.
Well, suffice it to say, I mean I am here. I am the Ranking
Member of this Subcommittee and I found it my obligation to be
here and I believe in the system that we have in this Congress
where we explore these ideas. Maybe somebody will tell me
something that is enlightening today. And so I will just shut
up and yield back the balance of my time and hope that that
happens as a result of this hearing, Mr. Chairman. I guess I am
happy to be here. I haven't decided that yet, but we will see.
Mr. Cannon. I think it will be at least an interesting
hearing. We appreciate the fact that you are here. The
gentleman yields back.
Mr. Coble, did you want to speak for a moment?
Mr. Coble. Mr. Chairman, unlike my friend from North
Carolina, I am glad to be here and I regret that I can't stay.
I have to go to a drug task force briefing, so unfortunately I
am going to miss a good part of this and I regret that.
Mr. Watt. I will brief my friend.
Mr. Coble. I will let you and the Chairman brief me.
Mr. Chairman, you touched somewhat in your opening
statement when you talked about physical activity and staying
in shape, personal discipline. I still think a lot has to be
said for that. As far as I know, Mr. Chairman, there hasn't
been a verdict handed down where the cause of action was
consumption of fatty food. Perhaps there have been settlements
entered into, but I don't think a verdict has been handed down
in this country.
I will admit, Mr. Chairman, in some of this area I am not
completely objective. I represent an area that is known
throughout the country as the Tobacco Belt, and I have always
found it worrisome for want of a better way of saying it that a
person can consume a tobacco product say for 25 years and then,
my gosh, he is sick. Tobacco has caused him problems after
having voluntarily consumed it for a quarter of a century.
Granted, I am not objective about it, but I would like to learn
more about that. And I think there may be some sort of
analogous comparison to that to what we are about to discuss
today. And I don't mean to imply, Mr. Chairman, that I am
uncaring about people who have suffered health problems as a
result of tobacco. But I do think that there is something to be
said for assumption of risk or contributory negligence as we go
down this slippery slope.
And I thank you for calling this hearing, and again I
apologize that I have to depart.
Mr. Cannon. Would the gentleman yield? I would like the
audience to know that the Ranking Member and I are very good
friends. We have debated over a long period of time, and I have
the utmost respect for him. But let me suggest there is an
alternative view of history, and that is that the Founding
Fathers worked very, very hard to come up with a Government
context that would last for centuries and I think they have
done a remarkable job. But after the Constitution was ratified
some of them had second thoughts, including John Jay, who was
the first Chief Justice of the Supreme Court, and did nothing
remarkable on purpose because he believed that the courts
probably had too much power under the constitutional system
that he had been a very significant part of setting up.
In fact, when you have the ability to find one judge and
one jury in one place and create law for the rest of the world,
you have to have--we have to look at our responsibility in the
legislature as imposing a burden to help straighten that out so
we don't have, as the trial bar has suggested, the ability to
legislate by finding predisposed judges. So I think this is an
extraordinarily important issue. We have dealt with it in guns
and dealt with it in many other areas. And we will deal with
it, I think, in this context although I will tell the panel and
others that we are looking for the right answer.
And we have language before us, and Mr. Keller has worked
very hard to come up with that language. He assures me he is
open to figuring out how to do this in a better way and we are
looking at this point in time not cramming down an idea that
has been well developed, as was the case I believe in the
firearms manufacturers legislation that we recently passed.
With that, I yield back.
Mr. Coble. Mr. Chairman, let me reclaim my time and I will
get with you and Mr. Watt and pick your respective brains about
what I missed, and I thank the panel for being here. And thank
you, Mr. Chairman.
Mr. Cannon. Mr. Flake, did you want to make an opening
statement?
Mr. Flake. I plan to conduct my own extensive search for
those weapons of mass destruction at the local Burger King
after arriving at the airport today.
Mr. Cannon. May I suggest upsizing to the macho size? It is
a little more manly.
Mr. Banzhaf. May I suggest you look in Iraq.
Mr. Cannon. Mr. Feeney, did you want to make a statement?
Mr. Feeney. Not at this time.
Mr. Cannon. We have with us Mr. Keller, the author of the
bill, who is a Member of the full Committee and not a Member of
this panel. And without objection, we will have Mr. Keller make
a statement.
Mr. Keller. Thank you, Mr. Chairman, and I would like to
begin by thanking all of the witnesses for appearing before our
Committee today and providing us with their thoughts and
insights regarding the Personal Responsibility in Food
Consumption Act, which I had the happy privilege of authoring.
This legislation provides that a seller of food shall not
be subject to civil liability where the claim is premised upon
an individual's weight gain resulting from the long-term
consumption of food or nonalcoholic beverages. The gist of the
legislation is that there should be common sense in a food
court not blaming people in a legal court whenever there is an
excessive consumption of fast food. Most people have enough
common sense to realize if they eat an unlimited amount of
super size fries, cheeseburgers, milk shakes and chocolate
sundaes, it may lead to obesity. In a country like the United
States, where freedom of choice is cherished, nobody is forced
to super size their fast food meals or choose less healthy
options on the menu. Similarly, nobody is forced to sit in
front of the TV all day like a couch potato instead of walking
or bike riding.
Because eating habits and exercise are a matter of personal
responsibility and common sense, it is not a surprise that my
personal responsibility in food consumption legislation
recently received broad bipartisan support in the Louisiana
Democratically controlled legislature where 94 percent of the
legislators voted yes in favor of the legislation. It was
signed into law by the Louisiana Governor on June 2, 2003.
While this is certainly a positive step in the right
direction, it does create the potential for creative lawyers to
engage in forum shopping by bringing lawsuits in other
jurisdictions, which brings me to the subject of lawyers and
why we are here.
Some of the same lawyers who went after the tobacco
industry now have the goal of seeking $117 billion from the
food industry, which is the amount the Surgeon General
estimates as the public health-related costs attributable to
being overweight. Based on the contingency fee of 40 percent,
these lawyers would stand to recover $47 billion for themselves
in attorneys' fees. Of course, this litigation against the food
industry would not make a single individual any skinnier. It
would, however, make the trial attorneys' bank accounts much
fatter.
Starting tomorrow, from June 20 to June 22, lawyers from
all across the United States are gathering in Boston for what
they call the First Annual Conference on Legal Approaches to
the Obesity Epidemic. Their goal is to bring lawsuits against
the food industry. And in fact to attend the legal strategy
workshop each must sign an affidavit which states that the
workshop is, quote, intended to encourage and support
litigation against the food industry and that information
acquired at this workshop is considered to be confidential,
close quote.
Indeed, lawsuits have already been filed against
McDonald's, Burger King, Wendy's and KFC. The New York lawsuits
against McDonald's were brought by a 400-pound 15-year-old boy
and a 272-pound, 56-year-old man named Cesar Barber. Mr. Barber
recently appeared on the CBS TV show ``60 Minutes.'' he had
this to say:
``Barber: I want compensation for pain and suffering.''
``60 minutes: How much money do you want?''
``Barber: Maybe $1 million.'' That is not a lot of money
right now.''
Most recently a lawsuit was even brought against Kraft
Nabisco seeking to bar children from buying Oreo cookies. Mr.
Banzhaf, one of our witnesses today, who will be a featured
speaker at this food litigation conference in Boston on
Saturday, recently told one publication that our public schools
that allow vending machines will be the next target of these
obesity-related lawsuits. Apparently, even the explicit
labeling on diet Cokes showing zero calories and zero carbs is
not enough for these cash strapped public schools to immunize
themselves from certain trial lawyers seeking to make a buck.
There is a real and present danger of an uncontrollable
avalanche of frivolous lawsuits against restaurants, pizza
parlors, grocery stores and companies that make ice cream, soft
drinks and cookies. Of course, the consequences of these
lawsuits against the food industry is that consumers would pay
a higher price at restaurants and grocery stores for food
costs.
These lawyers attempt to justify their quest to get money
from the deep pockets of the restaurant industry by making
three claims. First, they say more nutritional information is
needed to be made available. In reality nutritional information
is now available to anyone who asks for it at the restaurant's
counter. It is available at the fast food company Web sites,
and all products sold in grocery stores already have the
nutritional labeling. Yet we still see suits against companies
that make Oreo cookies and the threats of suits against public
schools with vending machines.
The second argument they make is that no new laws are
needed since judges can throw out frivolous suits. In reality
it is the job of Congress to make the laws and it is up to the
judges to interpret the laws. Right now there are no laws on
the books to give judges any guidance in this unchartered
territory. So decisions are being made on the vague elements of
negligence and State consumer statutes.
And, third, some cynics have implied that this sort of
common sense legislation must be some sort of political payoff
to the restaurant industry. Well, the largest fast food company
in the country is McDonald's. Last cycle, according to
opensecrets.org, a nonpartisan organization which tracks
campaign donations, the trial attorneys out contributed
McDonald's by a ratio of 45 to 1.
In summary, we need laws such as the Personal
Responsibility and Food Consumption Act to make it tougher for
lawyers to file frivolous lawsuits. We need to care about each
other more and sue each other less. We need to get back to the
principles of freedom of choice, common sense and personal
responsibility, and get away from the culture where people
always try to play the victim and blame other people for their
problems.
This legislation is a step in the right direction, and
again I thank the witnesses for taking time out of their busy
schedules to appear before us today, and I yield back, Mr.
Chairman.
Mr. Cannon. I thank the gentleman. Our first witness is
Professor John Banzhaf of George Washington University Law
School. Professor Banzhaf, according to his official biography,
was the, quote, master mind of lawsuits against the tobacco
industry. Presently Professor Banzhaf is co-counsel in several
lawsuits against such restaurants as McDonald's and Pizza Hut,
which again, quoting from his official biography, seek to hold
the fast food industry accountable for the unhealthy
consequences of overconsumption of its products. Among the
courses he teaches is one entitled ``Legal Activism,'' in which
students are tasked with suing someone.
Our second witness is Victor Schwartz. Mr. Schwartz is a
member of the American Law Institute. He has served on the
Advisory Committee of the Restaurant--Advisory Committee to the
Restatement, Third, of Torts: Products Liability, and he
continues to serve on the Advisory Committee to the Restatement
of Torts--got restaurants on the mind here--Restatement of
Torts: General Principles.
For over two decades he has been co-author of the most
widely used torts casebook in the United States, Prosser, Wade,
and Schwartz's Cases and Materials on Torts. He has authored
hundreds of law review articles and speaks before national and
international audiences interested in civil justice reform.
Mr. Schwartz also co-chaired the Civil Justice Reform
Committee of the American Legislative Exchange Council and
chairs the American Bar Association's Legislative Subcommittee
of the Products Liability Committee. He is also a partner at
Shook, Hardy & Bacon.
Our third witness is Christianne Ricchi, whose restaurant i
Ricchi in Washington, D.C. has been presented with the Insegna
del Ristorante Italiano Award of Excellence, meaning it is a
darn good Italian restaurant. My staff tells me we need to get
down there and investigate. That is the investigative staff. My
personal staff is also interested in the topic. i Ricchi was
named one of the best Italian restaurants in the world outside
of Italy. It took Ms. Ricchi over 25 years and a lot of hard
work to reach that milestone since her first trip to Italy in
1971 where she worked at a restaurant in the hills outside of
Florence.
In addition to her duties at the restaurant, Ms. Ricchi
served as the former Chairman of the Distinguished Restaurants
of North America, and she currently serves on the Board of the
National Restaurant Association, for whom she is testifying
today.
Our fourth witness is Richard Berman of the Center for
Consumer Freedom. He is also the Executive Director of the
Employment Policies Institute and General Counsel to the
American Beverage Institute. Mr. Berman was previously employed
as the Executive Vice President of Public Affairs for the
Pillsbury Restaurant Group, where he was responsible for the
Government relations programs of all restaurant operations. Mr.
Berman has also worked for the U.S. Chamber of Commerce.
I look forward to hearing your testimony today. Let me
point out that there is a little timer on the desk before you.
That will be set for 5 minutes. After 4 minutes elapse, you
will have 1 minute remaining. A yellow light will appear. And
at the end of the 5 minutes a red light will appear. I will tap
the gavel just to remind you that that has happened. You don't
have to just stop. This is not--if you could finish up your
thought or thoughts, and that will allow us to move on through
the rest of the body.
Let me also point out that you are not under oath but of
course the law, Federal criminal law, requires honest testimony
and we do have a perjury type penalty and we want to make that
clear to our witnesses. Nothing in particular with this panel,
I think we always try to do that same statement. In any event
we look forward to your testimony.
Mr. Banzhaf, you have 5 minutes.
STATEMENT OF JOHN BANZHAF, PROFESSOR,
GEORGE WASHINGTON UNIVERSITY LAW SCHOOL
Mr. Banzhaf. Mr. Chairman, before I begin the testimony,
before the clock starts running, I would like to respectfully
lodge an objection to the procedure which is being used with
regard to this hearing.
I was called on Monday and asked whether I would testify on
a bill called 339, and I was told that the majority insisted
that my testimony had to be in in writing by noon on Tuesday. I
worked all night Monday analyzing bill 339 and submitted my
testimony on time. That testimony pointed out, A, that the
original version of 339 was full of loopholes, B, may well be
unconstitutional. Now I gather from your remarks we are not
looking at 339.
Mr. Cannon. Let me help you understand a couple of things.
The way the system works here is that when we have a hearing
typically on a bill, the fact that we are looking at the law
means that we are looking for guidance from people who have
experience like you do. Secondly, we have an agreement with the
minority whereby we choose, depending upon the circumstances,
two or three of the witnesses and they choose at least one. And
so their choice and the time of the choice is something we
can't control.
We appreciate the fact that you are willing to work hard
and get something to us in advance. You are not limited to the
testimony that you submitted and you are going to be able to
share a great deal of your expertise through the questioning
process. And I am sure Members will have significant questions,
many of those directed to you. So you will have an opportunity
regardless of the time, which we don't begrudge you at this
point, to have your concerns known. I think it is fairly clear
here what we are trying to do is figure out how to stop the
lawsuits that you and your fellow trial lawyers want to bring.
We are looking to you for guidance, and there is nothing that
would ramrod anything. And if the timing was short for you, our
appreciation is that much greater for your willingness to be
here and be involved.
Mr. Banzhaf. If I may finish the objection----
Mr. Cannon. It is not a matter of objection. This is not a
trial or court. This is a hearing where we are gathering
information. You don't control.
Mr. Banzhaf. I will give the testimony.
Mr. Cannon. Pardon me, this is Congress and we have rules
and procedures. This is not a court.
Mr. Banzhaf. And you substituted a new bill at the last
minute.
Mr. Cannon. This is not a matter of argument. It is an
opportunity for you to express yourself. You are not compelled
to stay. We appreciate the fact that you are here. We would
appreciate now your testimony. That will be a 5-minute
allotment of time.
Mr. Feeney. Mr. Chairman, if I could raise an objection. It
is obvious that Mr. Banzhaf doesn't like the democratic process
and doesn't like the representative process. But having said
that, he doesn't have standing to raise objection.
Mr. Watt. Can we proceed with regular order here?
Mr. Feeney. Well, the regular order here would not be for a
law professor to come down and lecture Congress.
Mr. Watt. Can we go on with the regular order?
Mr. Cannon. We appreciate your comment and now, Mr.
Banzhaf, if you would be so kind to grace us with your
testimony.
Mr. Banzhaf. Mr. Chairman and Members of the Committee, in
2001 the U.S. Surgeon General issued a report showing that the
United States was suffering from an epidemic of obesity which
annually killed 300,000 people and cost us over 100 billion a
year. Since that time, Congress has done virtually nothing of
consequence to deal with this problem, just as for many years
it did nothing of consequence to address the problem of
smoking.
However, since I first proposed that legal action could be
a powerful weapon against obesity and as I suggested and then
helped prove that it could be a powerful weapon against the
public health problem of smoking, three fat lawsuits have been
won, two are poised to be won, one is going to be heard in
court later this month. More importantly, numerous articles and
reports have noted that the very threat of these lawsuits have
already prompted many food companies to take steps likely to
reduce obesity. Yet some Members not content to shrink
Congress' responsibility to do something meaningful about
America's second most preventable health problem, now support
an industry-sponsored bailout and protection bill to end what
seems to be one of the few effective tools against the problem.
With all due respect, shame on you. If it ain't broke,
don't fix it, especially until Congress is prepared to step in
and adopt comprehensive legislation and save taxpayers some 50
billion annually in obesity costs.
This bill is premised on two faulty assumptions. The first
is that the problem of obesity is caused solely by lack of
personal responsibility. But virtually everyone agrees that
obesity and obesity-related diseases occurred suddenly within
the past 15 to 20 years. There is no evidence that there has
been a sudden corresponding drop in personal and parental
responsibility.
The second faulty assumption is that contrary to virtually
every serious study, the fast food industry, with its
ubiquitous advertising, misleading advertising, failure to
identify ingredients, as most foods do, or to provide any kinds
of warnings that this is such an insignificant cost of our
current problem of obesity, contrary to every report, that they
should be given unprecedented immunity from all liability. And
let me emphasize we are not seeking to hold them liable for all
the liability, only their fair share, as we did with tobacco.
Now neither proposition can be seriously advanced, much
less proven. And the public, according to recent surveys, is
about willing to hold them liable. There is liability now.
Juries are about to hold them liable as they are in tobacco
suits.
The industry and their spokesmen claim on the one hand that
all these suits are frivolous, but industries don't need
protection from suits which are truly frivolous, only those
which judges, juries and appellate court judges are likely to
take seriously. And let me remind you that the smoker suits,
the nonsmoker suits, the suits by the States against the
tobacco industry all were originally called frivolous. A member
of this panel once said they were frivolous and we would never
even get to court. But they have all proven their worth and
they have helped to do something about the problem of smoking,
which is more than I can say for the United States Congress.
In this bill, prematurely, Congress assumes that it can
predetermine that in no set of facts involving obesity
litigation should any company be held liable even for its fair
share of those costs. This is presumptuous as well as
preposterous. It departs also from the 200-year-old tradition
in which courts initially decide product liability cases and
then the legislature steps in only if the results seem to be
clearly contrary to the public interest. This is especially
egregious here because the bill unnecessarily and unreasonably
interferes with the rights of the sovereign States to have
their courts decide these product liability issues at least
initially. And it seems to affect matters which have no
relationship to interstate commerce and, as the Supreme Court
has recently reminded us, therefore may be beyond Congress'
ability to legislate.
For all of these reasons, I respectfully suggest that it is
very premature for Congress at this time when not a single
judgment has been held, not a single trial has been held, for
you suddenly to step in and say on the one hand the suits are
frivolous, on the other hand the danger is so imminent that
Congress has to adopt unprecedented legislation to grant
immunity, something Congress wisely refused to do with the
tobacco industry.
There are a wide variety of different legal theories,
different pieces of evidence, many of which you have not seen.
And you are going to prejudge and say no one is entitled to
their day in court. Instead, I would very respectfully suggest
that Congress before it wants to grant immunity consider
comprehensive legislation aimed at America's epidemic of
obesity. Wait to see what the effect of these legislative
remedies and of the fat litigation is and then and only then if
the litigation truly is as bad as you make it out, Mr.
Chairman--and you have demonized me. I hope you can repeat
those comments so I can respond to them, because some of them
are wrong and may even be slander, but I would like to suggest
that before you adopt new legislation you do something that you
are supposed to do and deal with the problem.
[The prepared statement of Mr. Banzhaf follows:]
Prepared Statement of John H. Banzhaf, III
In 2001 the U.S. Surgeon General issued a report showing that the
U.S. was suffering from an epidemic of obesity which annually killed
about 300,000 Americans and cost us over $100 billion a year. \1\ Since
that time Congress has done virtually nothing of consequence to deal
with this problem, just as for many years it did nothing of consequence
to address the problem of smoking.
---------------------------------------------------------------------------
\1\ See, http://www.surgeongeneral.gov/news/pressreleases/pr--
obesity.htm
---------------------------------------------------------------------------
However, since I first proposed that legal action could be a
powerful weapon against the public health problem of obesity, just as I
had suggested--and then helped prove--that it could be a powerful
weapon against the problem of smoking, the mere threat of legal action
has proven to be very effective. For example, numerous articles and
reports have noted that the threats of law suits have already prompted
many food companies to take steps likely to reduce obesity. \2\
---------------------------------------------------------------------------
\2\ See generally, http://banzhaf.net/obesitylinks See also page 6
infra.
---------------------------------------------------------------------------
Yet some Members, not content to simply shirk Congress'
responsibility to do something meaningful and effective about America's
second most important and expensive preventable health problem, now
support an industry-sponsored \3\ bailout and protection bill to end
what seems to be one of the few effective tools against this problem.
FOR SHAME! If it ain't broke, don't fix it, especially until Congress
is prepared to adopt comprehensive legislation to help save taxpayers
more than $50 BILLION annually in obesity costs. \4\
---------------------------------------------------------------------------
\3\ ``The National Restaurant Association is leading the effort to
build support for this bill [H.R. 339] on Capitol Hill. See if your
lawmaker is a cosponsor of H.R. 339 and take action to encourage them
to sign on if they haven't already.'' See: http://www.restaurant.org/
government/issues/lawsuits--food.cfm
\4\ Fast food companies are responsible for more than 65% of the
rise in American obesity, and for more than $50 billion of the annual
health care costs obesity imposes on taxpayers, according to a new
study for the National Bureau of Economic Statistics. As the New York
Times reported: ``In analyzing the relationship of weight to incomes,
food prices, restaurants, workforce participation and other variables,
the economists concluded that the growth of fast food accounted for 68
percent of the rise in American obesity.'' Belt-Loosening in the Work
Force, New York Times [3/2/03].
---------------------------------------------------------------------------
This bill is based upon two faulty assumptions. The FIRST is that
the problem is caused by a lack of personal responsibility. But
virtually everyone agrees that this epidemic rise in obesity and in
obesity-related diseases \5\ occurred largely within the past 15-20
years, and there is no evidence that there has been a corresponding
drop in personal and/or parental responsibility. \6\
---------------------------------------------------------------------------
\5\ Although some have tried to argue that the huge increase in
obesity was caused merely by a change in the definition of ``obesity,''
there has also been a corresponding very large increase in obesity-
related diseases such as Type 2 Diabetes--a fact-based phenomena which
obviously was not caused by a mere change in definitions.
\6\ If there were some kind of precipitous decline in personal
responsibility (or in parental responsibility) during the past 15-20
years, one would also expect to see it manifested in a huge increase in
other risky personal behaviors such as the use of illicit drugs, the
failure to use seat belts, boating and rafting accidents, accidental
gun shot injuries , drunk driving accidents, etc. But this has not
occurred. Thus one is asked to believe that this relatively-recent
epidemic of obesity was caused by a dramatic decline in personal and/or
parental responsibility for which there is no evidence, and which does
not appear to manifest itself with regard to other risky personal
choice behaviors.
---------------------------------------------------------------------------
The SECOND faulty assumption is that, contrary to virtually every
serious study, the fast food industry--with its misleading advertising,
\7\ failure to clearly and conspicuously disclose nutritional
information (as all other foods do) \8\ and/or to provide any warnings
of the type common to many other products which present risks which are
less serious but even better known \9\--is such an insignificant cause
of obesity in all cases (including those regarding children) \10\ that
it deserves unprecedented absolute immunity from all liability. \11\
---------------------------------------------------------------------------
\7\ See, e.g., Judge Sweet's initial opinion in Pelman v.
McDonald's:
http://banzhaf.net/docs/sweet1
\8\ The fast food industry lobbied vigorously and successfully to
be virtually excluded from the statute which requires all foods sold in
stores to provide prospective consumers with nutritional information,
including the amount of calories, fat, and saturated fat. Thus, as
Judge Sweet himself pointed out, potential consumers may well be
deceived into believing that chicken dishes have less fat than beef
entrees, and many customers are totally unaware of the large amounts of
fat which are increasingly being found in dishes which purport to be
``healthful.'' [see Ibid.]
---------------------------------------------------------------------------
As the business-oriented Wall Street Journal recently noted in ``That
Veggie Wrap You Just Chowed Down Is More Fattening Than a Ham
Sandwich'' [1/14/03]: ``HERE'S A FAST-FOOD nutrition quiz. Which has
the fewest calories: a McDonald's Quarter Pounder with Cheese, Panera's
Smoked Ham and Swiss sandwich, or Baja Fresh's grilled chicken salad?
Surprisingly, it's a Quarter Pounder. The answer is likely to shock
diners who are flocking to trendy new eateries such as Fresh City, Baja
Fresh Mexican Grill and Panera Bread, all of which promise fresh,
nonfried and healthy-sounding fare . . . the truth is that these and
other wraps, salads and sandwiches being hyped as a healthy alternative
to fast food are loaded with calories and fat. . . . While the
restaurant chains don't make any specific claims about the
healthfulness or calorie content of their menu items, they nonetheless
give consumers the impression that they are offering healthier food. .
. . But consumers are being fooled. . . . But making the healthy choice
can be tough. Most restaurants don't display nutrition information
inside the restaurant, and the menu offerings often are deceptive. . .
. Nutritionists argue that calorie information should be available at
the ordering counter. [emphasis added].''
---------------------------------------------------------------------------
\9\ Courts have held that step ladder manufacturers can be held
liable not only for failing to provide warnings about falling off the
top step--a danger even clearer and more clearly common knowledge than
the danger of eating too much fattening food--but even for failing to
provide adequate warnings. Similarly, failure to warn about the danger
of electrocution from reaching into the back of the television set, or
using an electric hair dryer around ground pipes, or of infants eating
lead-based paint, have all been held to create potential liability.
---------------------------------------------------------------------------
Warnings, after all, are not designed only for the best and
brightest, but also for those with less education; less wisdom,
judgment or maturity; and those who may be momentarily forgetful.
---------------------------------------------------------------------------
\10\ It is impossible to argue that young children should be held
fully responsible for their own lack of judgment or immaturity. Even
the simplest contracts they enter into are void or voidable, and girls
under the age of consent (often 18) cannot validly consent to engage in
sexual intercourse because we conclusively presume that they cannot
understand the consequences of their acts. Yet it appears that most
girls of 17 understand the consequences of having sex far better than
they understand the consequences of eating out often at fast food
restaurants.
---------------------------------------------------------------------------
For those who then argue that food companies should escape all
liability because children's obesity is caused solely by a lack of
parental responsibility, the simple answer is that the law does not
blame children for the lack of care of their parents, so long as the
harm was reasonably foreseeable by the defendant. For example, when
McDonald's gives out tiny action figures with its children's meals, it
is very careful to warn in big letters of the choking danger present if
the toys are given to infants--even though that danger is clearly
common knowledge. McDonald's knows that, if a child choked on a part
from the toy and suffered brain damage, McDonald's would be held liable
for its fair share of the medical costs--despite the clear negligence
of the parents--provided that it could have foreseen that this would
happen.
With regard to meals served to children, and even meals like Happy
Meals and Mighty Kids Meals intended solely for children, McDonald's
provides no warnings whatsoever.
---------------------------------------------------------------------------
\11\ Congress wisely denied just such immunity to the tobacco
industry, even after several multi-million dollar verdicts. The only
other instances of industry immunity--shielding gun makers from
lawsuits for ``harm caused by the criminal or unlawful misuse'' of a
firearm, limiting the liability of airlines if armed pilots
accidentally shoot a crew member or passenger; and limiting the nuclear
industry's liability in the event of a catastrophic accident--are all
clearly distinguishable.
---------------------------------------------------------------------------
Neither proposition can be seriously advanced, much less proven,
and the public seemingly is rejecting them and is prepared to hold the
industry liable in law suits. \13\
---------------------------------------------------------------------------
\13\ One recent survey shows that almost half of the public already
blame fast food companies for contributing to the current epidemic of
obesity, and another says that jurors are almost as likely to vote
against defendants in fat suits as against defendants in tobacco suits.
See:
http://banzhaf.net/obesitymediareleases#Jurors--Support--Fat--Suits
---------------------------------------------------------------------------
The industry and its spokesmen claim that all such law suits are
frivolous, but industries do not need protection against law suits
which are truly frivolous, \14\ only those law suits which judges,
juries, and appellate courts are likely to take seriously. In this
regard note that the smoker law suits, the non-smoker law suits, and
the law suits by the states against the tobacco industry, all were
initially called frivolous. \15\ But they have all proven their worth,
and helped to make a significant dent in the public health problem of
smoking. \16\
---------------------------------------------------------------------------
\14\ ``Frivolous' has been defined as ``Unworthy of serious
attention; trivial.'' But these law suits and the threat of future
suits are being taken very seriously by many major business and general
interest publications (including one new publication, Obesity Policy
Report, devoted primarily to this topic) http://www.obesitypolicy.com/
The law suits are also being taken very seriously by industry and stock
analysts. See generally http://banzhaf.net/obesitylinks
---------------------------------------------------------------------------
The industry itself has paid for full-page ads in national magazines
attacking the suits, and has written Op-Ed pieces opposing them. But
their very concern and attention to these legal actions clearly belies
any suggestion that the industry regards them as merely frivolous.
---------------------------------------------------------------------------
\15\ Indeed, one of the panelists today, Victor Schwartz, once
appeared on television with the author and confidently predicted that
no smoker law suit against a cigarette maker would even get to trial,
much less produce a verdict for plaintiff.
---------------------------------------------------------------------------
Even the lawyers who represented smokers in such suits were reluctant
to represent NONsmokers in suits against the tobacco industry,
believing that such suits had little if any chance of success. But one
husband-and-wife team has already won $300 million in the first round
of a class action nonsmoker law suit, and individual nonsmoking
plaintiffs are beginning to win also.
Finally, even anti-tobacco lawyers were so sure that state law suits
against the industry could not possibly succeed that most refused to
take them on, and the few that did were called ``crazy.'' Today, of
course, we call them multi-millionaires, since these law suits--
likewise termed ``frivolous' in their day--have now resulted in a
settlement of over $240 BILLION dollars.
As one reporter, after talking to many legal experts of all sides of
the issue put it: ``All the legal experts I talked to agreed on one
thing: After tobacco overturned years of legal precedent, you can't say
any lawsuit is impossible.'' Can We Sue Our Own Fat Asses Off?:
http://salon.com/tech/feature/2002/05/24/fastfoodlaw/index.html
---------------------------------------------------------------------------
\16\ See, e.g., Where the Public Good Prevailed, The American
Prospect [04/01].
---------------------------------------------------------------------------
Many articles and reports have suggested that more progress has been
made regarding the problem of smoking than any other major public
health problem: e.g, abuse of alcohol, illicit drug use, teenage
pregnancies, etc. Clearly this is due in large part to the effective
use of a wide variety of different kinds of legal actions--exactly what
is being planned now with regard to obesity.
In this bill Congress assumes that it can pre-determine that in no
set of facts involving food litigation should any company be held
liable, even for its fair share of the resulting costs. \17\ This is
presumptuous as well as preposterous, since the bill covers many
situations in which most would agree that there should be liability. It
also departs from the 200-year-old tradition of letting courts first
decide new cases as they arise, and then stepping in to ``correct'' the
process only if the results prove to be clearly contrary to the public
interest.
---------------------------------------------------------------------------
\17\ It should be noted that plaintiffs in fat suits--like
plaintiffs in tobacco suits--do not necessarily contend that they bear
no responsibility, and/or that the defendant is solely responsible and
should pay all of the costs. Instead, plaintiffs in the fat suits--like
plaintiffs in the tobacco suits--simply argue that the defendants'
failure to clearly and conspicuously provide necessary information, or
to provide appropriate warnings, etc., was at least in some part a
cause of the resulting medical problem, and that the defendant
therefore should bear its fair share of the costs.
---------------------------------------------------------------------------
This is especially egregious here because the bill unreasonably and
unnecessarily interferes with the rights of states to have their courts
decide these issues, at least initially, and is so broad that it seems
to affect matters having no relationship to ``interstate commerce'' and
therefore may be, as the U.S. Supreme Court has recently reminded us,
beyond Congress' ability to legislate.
For all of these and other reasons, it is respectfully suggested
that it is premature--if not presumptuous and preposterous--for
Congress at this time to conclude that the one weapon against the war
on obesity which appears to be having an impact should be eliminated;
that it can decide without waiting for state court trial and appellate
judges to consider the myriad of factual situations, legal arguments,
and still-undiscovered evidence which may be presented in these trials
that no such plaintiffs should even have their day in court; and that
an industry should be given unprecedented immunity from all liability
without any showing of harm or even serious danger.
Instead, Congress should consider comprehensive legislation aimed
at America's epidemic of obesity [see next page], wait to see what the
effect of the legislative remedies and of fat litigation may be, and
then and only then even consider some form of limited immunity.
Fortunately, this bill is so ill-considered that it contains several
unintended loopholes.
Both the author and those involved in the movement to use legal
action as a weapon against obesity have frequently stated that
legislation is far preferable to litigation. Legislation can accomplish
more, be applied fairly across the board, and affect many practices
that litigation cannot reach. Here are only a few proposals which
Congress may wish to consider before it abdicates its own
responsibility to regulate, and simply grants the industry unnecessary
blanket immunity:
A. Require that all fast food restaurants display information
about the calories and fat in their menu items at the point of
purchase when patrons are considering their choices while
standing on line, not buried on a web site or on a hard-to find
pamphlet or back wall. Several state bills to require this have
been introduced, and Congressional action would avoid confusion
due to lack of uniformity.
B. Require that all fast food restaurants provide appropriate
warnings about the danger of eating fattening fast food too
often. PepsiCo has promised to do this, and McDonald's is
already doing it in France.
C. Require that all fast food restaurants provide more
nutritious alternative menu choices for people who find it
inconvenient to eat elsewhere and who want to avoid the many
fattening foods which all too frequently are their only
choices.
D. Require that all food items intended for young children--
e.g., Mighty Kids Meals, Lunchables, etc.--provide information
about fat and calorie content not only in terms of adult
nutritional requirements but also in terms of the vastly lower
requirements for young children so that parents can
knowledgeably exercise the parental responsibility they are
urged to.
Should the fast food restaurants do these things--either
voluntarily or as a result of uniform legislation--it would appear that
they would largely insulate themselves from potential liability. This
is a far better approach than simply granting them unearned immunity.
ATTACHMENT 1
ATTACHMENT 2
Mr. Cannon. Mr. Schwartz.
STATEMENT OF VICTOR SCHWARTZ, SHOOK, HARDY & BACON
Mr. Schwartz. Good morning, Mr. Chairman and Mr. Watt.
Thank you for inviting me here today. As you suggested in your
opening remarks, my experience in the law has been on both
sides of the aisle. I have been a law professor. I also serve
as General Counsel to the American Tort Reform Association, but
I do want to make clear my views are simply my own today.
John and I were actually colleagues in Columbia Law Review
and chose Columbia Law School. We might have slightly different
views today. We were permitted to do so when we were on Law
Review together and we feel the same way today.
Very recently, the American Law Institute, which is the
fountain head for restating the law of torts, and this is tort
law, restated the law after a 30-year-period of time. And the
people who are involved in that are judges and lawyers and
plaintiff's lawyers, purportedly the best in the Nation, and
they look at the case law, they look at American case law. And
what they decided was food manufacturers and food sellers can
be liable in three instances.
If they have something in food, there is a pebble in a can
of tuna fish or there is a needle in food you ate in a
restaurant, the company is liable. And if you fail to warn
about something that people may not know about, such as an
allergen of coloring, you are liable. And if you violate
regulations that are there to protect people, you are liable.
Now that sums up 200 years of American law on food. In law
school it takes about 16 weeks, but professors try to hide the
ball real good so you don't know where it is. But there is a
new trend in American tort law and we have seen it in other
areas and it began, I think, in modern times with John's work
in tobacco, what the former Secretary of Labor Reich calls
regulation through litigation. Now here tort law is not
directed at what we were thinking about in the restatement, and
that is compensating somebody for an injury they have had
because they have been hurt by a product. The focus is not on
compensation, but it is on regulating an industry through tort
law. And some people favor it. In fact, Secretary Reich favored
it at first. But as he thought about it, and for the record I
will indicate and give you his op ed from the Wall Street
Journal, he said that regulation through litigation, which is
really changing what we have to eat, changing what products we
may be able to obtain, violates the fundamentals of the
democratic process, because he appreciates--and here is a
little bit of a response of what Mr. Watt suggested in his
opening remarks--that you can do things that courts can't do.
You are having a hearing today. You can hear from all
sides. Courts don't do that. You can hear from all different
points of view. You can recall witnesses. You can cross-examine
them. Courts are not in a position to do that. They have two
lawyers before them in a case. So if you are dealing with a
matter of national policy, which has to do with what warnings
are going to be on our food, what food is going to be
available, what school children should or should not have, that
is something that is in this arena and it is the proper arena
for it. And if you don't do your job the voters have a very
good weapon that they don't have against judges; they can
decide to elect somebody else. So when it comes to food and
what fat content should be and what we are going to do about
obesity, this is really the right forum to do it.
Now some lawsuits have been brought up already, and has
been suggested by a number of people here they are in a very
early and a very nascent stage. And I believe the fat lawsuits
have very big hurdles to climb. First, the person is going to
have to prove that if he or she is obese, it was because of
food, not because of inactivity or genetics or 101 other
things, and that is not easy. The second thing they are going
to have to prove, and this is even more difficult, is that
their harm was caused by eating a particular food.
I doubt you will have a suit against yourself, Ms. Ricchi,
because you serve good food and it is going to be very hard for
anybody to prove that. But targeting fast food companies seem
to work because people do go there repeatedly, it is low cost,
and maybe they think they can show that they were hurt by a
McDonald's hamburger. I personally think it is going to be
very, very difficult to climb that mountain. And finally courts
are going to have to throw out 240 years of law, take the
restatement and burn it and say we are going to have a totally
new way of imposing liability.
With all of those hurdles, though, we have seen in American
tort law that no matter how frivolous something may seem a
court may do it and get into it. And for that reason it is an
appropriate time to look at this subject because change can be
right around the corner and having a preemptive effect may be
sound public policy.
[The prepared statement of Mr. Schwartz follows:]
Prepared Statement of Victor E. Schwartz
Mr. Chairman, thank you for your kind invitation to testify today
about how to prevent frivolous lawsuits against manufacturers,
distributors and sellers of food. Although I serve as General Counsel
to the American Tort Reform Association and we oppose frivolous
lawsuits against anyone--including teachers, who, thanks to members of
this Committee, are now protected under the Paul D. Coverdell Teacher
Protection Act of 2001, volunteers, charities or product
manufacturers--my views today are my own. Let me state the basis for
those views.
For the first 14 years of my professional life, I worked part-time
as a plaintiffs' attorney and full-time as a professor of law. I served
as dean of the University of Cincinnati College of Law, and for more
than twenty-five years, I have co-authored the most widely used torts
casebook in America, Prosser, Wade & Schwartz's Torts. I also have
served on all three Advisory Committees for the American Law
Institute's new Restatement of Torts, Third, including the project on
product liability.
I worked under the Ford and Carter Administrations, chairing the
Inter-Agency Task Force on Product Liability, and the Department of
Commerce's Task Force on Accident, Compensation and Insurance.
Currently, I chair the Public Policy Group in the Washington office
of the law firm of Shook, Hardy & Bacon LLP. Shook, Hardy & Bacon is
principally a defense firm, and has helped me gain the perspective of
those who are sued in our legal system.
No fast food chain has retained us. The views I state today are
based on my background and experience in developing public policy in
tort law, not on the dictates of any company, entity or trade
association.
liability of commercial sellers and distributors for harms caused by
defective food products
The American Law Institute's (hereinafter ``ALI'') new Restatement
of Torts, Third: Products (hereinafter ``Restatement Third''), Section
7, is the clearest and most accurate description of the liability of
commercial sellers of food. As the Restatement Third appreciates,
purveyors of food were the first group to be subject to strict products
liability. If food contains a manufacturing defect--such as a can of
peas that contains a pebble, or a bowl of soup that contains a nail--
and the defect injured a person, the seller is liable. There are no
excuses. Sellers of food also may be subject to liability for failure
to warn. An example is provided in the Restatement Third. If a seller
of food fails to inform a consumer that a dye applied to the skins of
oranges contained a well-known allergen, the manufacturer may be
subject to liability, if the consumer becomes sick from the coloring.
Sellers of food also may be subject to liability when their product
fails to conform to applicable safety statutes or administrative
regulations.
Until very recently, the only real issue in food cases arose when
an ingredient that caused a plaintiff's harm was an inherent aspect of
the product (e.g., a chicken bone in a chicken enchilada or a fish bone
in chowder). There was much debate in the case law about what was or
was not ``inherent'' in a food product. The Restatement Third looked to
a thoughtful line of cases to address those situations. It moves away
from what is or is not inherent, and focuses on whether a reasonable
consumer would expect the food to contain that ingredient. If the
consumer has that expectation, the seller is not liable. If any of its
contents come as a surprise (e.g., an inch-long chicken bone in the
middle of a three inch chicken sandwich), the seller is liable. That is
a quick summary of more than two hundred years of food law.
regulation through litigation
Tort law has always had a public policy component. Nevertheless, it
has achieved those goals with respect to sellers of food under the
standards I have outlined today. Over the past decade, however, a new
phenomenon has arisen in the law of torts. Former Secretary of Labor
Robert Reich aptly called this phenomenon ``regulation through
litigation.'' Here, the focus of tort law shifts away from its main
purpose--compensating someone who has been injured by the wrongful
conduct of another. The shift is toward having an enterprising judge to
create brand new rules to empower a jury to make determinations that
traditionally were the responsibility of Congress, state legislatures,
or regulatory agencies.
Regulation through litigation began with a very unpopular product,
tobacco. Some judges changed fundamental tort rules to facilitate suits
against tobacco companies when state attorneys general sued those
manufacturers. They broke traditional tort rules and gave a state a
greater right to sue for an alleged economic harm than a smoker who had
an alleged physical injury. At the time--actually in debates with one
of the learned witnesses we will hear from today--I suggested that some
day, the regulation through litigation concept could be extended to
products that were much more popular, such as fast food. But, I was
told more than once that ``no, the concept is only to be applied to
tobacco because it is the only product that could kill a consumer when
it was used as intended.'' At the time, I suggested that if one eats
enough fatty hamburgers, that too could lead to premature death. But
these thoughts were treated as those of an impractical academic. Of
course, we now know that regulation through litigation was not confined
to tobacco. Litigation cases were subsequently brought against gun
manufacturers, insurers, and pharmaceutical manufacturers, among
others.
Now we are on the threshold of a new demon for ``regulation through
litigation'' activity: fast and other potentially high caloric, fatty
foods. The focus is not on food that contains a product defect, such as
a pebble. It is on food that health experts believe can cause obesity,
when people overeat.
Regulatory bodies can, and have, stepped in to protect certain
parts of the population from high caloric foods. For example,
regulatory bodies in Los Angeles have now banned traditional soft
drinks in public schools. This will take effect at the beginning of
2004. While some people may vigorously disagree with that regulatory
decision, it was rendered in the context of the check and balance of
American politics. If people do not agree with the decision, through
election or propositions in California to the Constitution, they can
change it.
It is a very different process when a judge in a tort case creates
a brand new regulatory rule. The judge does not hold hearings, as you
have here today. He or she could not call witnesses on his or her own,
nor could he or she obtain a broad public policy perspective about how
food should be regulated. Also, new judge-created rules are
retroactive, not prospective. One judge can subject an industry to
massive liability exposure for what has been a socially acceptable
norm.
A decision by a legislature or regulatory agency is markedly
different than those by judges. As recognized by former Secretary of
Labor Robert Reich who was, at one time, a strong supporter of
regulation through litigation, ``these lawsuits are end runs around the
democratic process.''
Let me share just one impact of one judge's use of regulation
through litigation, in the area of automobile insurance. The question
was whether an insurance company properly offered its insureds a non-
original manufacturer part in fender-bender cases. A huge verdict
against an insurer that did so led almost all automobile insurers to
offer only original equipment manufacturer replacement parts. This has
led to sharp increases in the price of automobile insurance imposed on
persons far removed from the original case.
where is ``regulation through litigation'' today for food sellers?
We have at least one judicial decision suggesting that in some
contexts, a successful liability case could be brought against a seller
of fast food. Advocacy literature goes further and suggests that
manufacturers of high fat content or high sugar content food should be
subject to liability for causing obesity. Nevertheless, there are huge
legal mountains to climb before such cases can be successful. Let me
briefly state them.
First, if traditional rules are followed, the plaintiff is going to
have to show that it is more probable than not that his or her obesity
was caused by food, not by failure to exercise or other lifestyle
choices, or genetics. As a practical matter, this will be very
difficult to prove. Second, the plaintiff will have to show that one
specific purveyor of food caused his injury. This will be even more
difficult to prove. Finally, there will have to be a fundamental change
in the definition of what constitutes a product defect. The Restatement
Third rules will have to be swept away under a new wave of regulation
through litigation.
In my writings, I have suggested that if precedents created in some
of the tobacco state attorney general cases were applied in cases
brought against sellers of fast food, a liability breakthrough could,
nevertheless, occur.
should congress take action?
On a few occasions, Congress has worked to change current tort law,
for example, in the General Aviation Recovery Act of 1994, the Paul D.
Coverdell Teacher Protection Act of 2001, and the Biomaterials Access
Assurance Act of 1998. All of these measures limited existing and--what
was believed to be--excessive liability that created very unsound
nationwide public policy.
With food cases, we have not reached that point. The issue is
whether Congress should take proactive measures to prevent individual
state courts from engaging in ``regulation through litigation'' in the
area of food, and holding a seller and a manufacturer or a distributor
of a food product that complies with all health and safety regulations,
and is not defective, liable for obesity or other health hazards.
Again, as I have made clear, there are major bulwarks in the path
of that liability. For that reason, legislation passing at this point
would not have to change existing law. What it would do is solidify
existing law and draw a line where experience and practical wisdom have
suggested it should be drawn.
I thank you very much for your kind attention, and would be pleased
to answer any questions.
Mr. Cannon. Thank you, Mr. Schwartz. That was very
enlightening. I will tell you that many people from many
segments of the food industry are terrified at this new trend
in public policy, which I think Mr. Banzhaf was very eloquent
in setting for us.
Ms. Ricchi.
STATEMENT OF CHRISTIANNE RICCHI,
THE NATIONAL RESTAURANT ASSOCIATION
Ms. Ricchi. Thank you, Mr. Chairman. Chairman Cannon and
Members of the Committee, my name is Christianne Ricchi, and I
am the owner of i Ricchi Restaurant here in Washington, D.C. I
am testifying today here on behalf of the National Restaurant
Association, which is the leading business association for the
restaurant industry, to offer my support for H.R. 339, the
``Personal Responsibility and Food Consumption Act.'' Together
with the National Restaurant Association Educational
Foundation, the Association's mission is to represent, educate
and promote a rapidly growing industry that is comprised of
870,000 restaurants and food service outlets, employing 11.7
million people around the country. As a member of the Board of
Directors of the Association, I am proud to say that our
Nation's restaurant industry is the cornerstone of the economy,
careers and community involvement.
Mr. Chairman, I am living the American dream. I have over
30 years of experience in the restaurant industry, and I am the
owner of a successful restaurant in the Nation's capital. I
opened i Ricchi in 1989 after a trip to Italy several years
before, where I met a family who owned a little trattoria in
the hills outside of Florence. I began working in the kitchen
and subsequently the wine cellar and the dining room. From the
experience I became familiar with all aspects of running a
restaurant and a small business.
As a restaurateur and a small business owner, there are
many challenges that I and the industry face. One such issue
that has surfaced that could greatly impact the restaurant and
food service industry is litigation that seeks to hold the
industry responsible for some individuals' health conditions
relating to overweight and obesity. As absurd as this may
sound, some of these suits are being filed.
Let me be clear that I am not at all minimizing the issue
of obesity, which is a very complex and serious issue for some
Americans. However, what the trial bar is attempting to do by
capitalizing on this issue could have a significant and
detrimental impact on my small business and the entire
industry.
This past year in New York an attorney filed frivolous
lawsuits on behalf of people who claim the food industry was
responsible for their obesity-related health problems. The
first suit was never filed and was publicly ridiculed for its
senseless, baseless and ridiculous claims. A Federal judge
recently dismissed a second lawsuit, but it was recently
refiled and more copycat suits may be likely.
This type of legal action, if permitted to go forward,
leaves little doubt in my mind that the costs associated with
such a lawsuit could put me out of business. My restaurant is a
small business employing 60 people. Most of my employees have
worked in the restaurant for more than 10 years and some have
been with me since the opening 14, 15 years ago. All of my
employees are heads of their households. Since September 11, my
business and many others in the urban fine dining category have
seen a dramatic decline in business. At one point my sales were
down 60 percent. Although business has come back somewhat,
other factors, ranging from Orange level terror alerts to the
current downturn in the economy, have presented challenges.
While I am confident we will overcome all of these
obstacles, the prospect of dealing with the legal fees alone
from a potential lawsuit causes me grave concern for the future
of my business, my employees and our industry as a whole.
I am honored when my customers choose to dine at i Ricchi.
However, the thought that someone can file a lawsuit based in
part on a choice they have made regarding where to dine and
what to eat is disturbing.
Perhaps no other industry offers a greater variety of
choices to consumers than restaurants. One of the many
strengths of the restaurant industry is the broad spectrum of
cuisines and culinary options that customers are offered.
There are 870,000 restaurants in the United States, all of
which provide individuals the opportunity, flexibility and
freedom to choose among a variety of high quality, safe,
healthy and enjoyable types of cuisines. And once a customer
enters a restaurant, an individual is presented with an array
of choices designed to accommodate his or her tastes and
preferences. Customers are also capable of customizing their
meals, whether it is food preparation method or substitution of
food items to meet individual items.
From my own perspective, my employees and I strive to
provide maximum value to our customers. This starts with
offering a variety of choices. We also deliver value through
high quality ingredients and a variety of portion sizes. I
often provide a tasting menu for my guests to sample small
portions of a variety of items on my menu. Ultimately it is our
job to please our customers every way we can. As anyone who is
in the product delivery and customer service business can tell
you, the goal is to have your customers walk away satisfied.
Not only do the lawsuits we are discussing this morning
fail to acknowledge the voluntary nature of the choices
customers make, they also do not address the fundamental issue
of personal responsibility.
I believe it is important to recognize that personal
responsibility, moderation, and physical activity are all key
ingredients to a healthy lifestyle. It is important to note
that 76 percent of meals are eaten at home and not outside the
home. I am not a dietician, but I know that dietary experts
agree that all foods can be part of a balanced diet.
The good news is that personal responsibility remains a
strong American value. A convincing majority, 89 percent, say
that personal responsibility is most responsible for why two
out of three Americans are overweight, according to a recent
survey by the Grocery Manufacturers of America. Also according
to National Restaurant Association research, an overwhelming 95
percent of Americans feel they are qualified to make their own
decisions what to order when dining out.
Mr. Chairman, with 11.7 million employees the restaurant
industry is our Nation's largest employer outside of
Government. If these lawsuits are permitted to go forward, they
could very simply jeopardize my livelihood, my employees and my
customers, whose freedom of choice would be infringed upon.
Additionally, I fear for the industry and the impact these
lawsuits could have on the economy.
Representative Keller is to be commended for introducing
H.R. 339, which would help prevent these misguided lawsuits in
the future. But more importantly, this legislation focuses on
personal responsibility and the voluntary menu choices we all
make rather than on more costly and unwarranted litigation.
Thank you, Mr. Chairman.
[The prepared statement of Ms. Ricchi follows:]
Prepared Statement of Christianne Ricchi
Thank you, Mr. Chairman. Chairman Cannon and members of the
Committee, my name is Christianne Ricchi and I am the owner of i Ricchi
Ristorante in Washington, D.C. I am testifying here today on behalf of
the National Restaurant Association, which is the leading business
association for the restaurant industry, to offer my support for H.R.
339--the Personal Responsibility in Food Consumption Act. Together with
the National Restaurant Association Educational Foundation, the
Association's mission is to represent, educate, and promote a rapidly
growing industry that is comprised of 870,000 restaurant and
foodservice outlets employing 11.7 million people around the country.
As a member of the Board of Directors of the Association, I am proud to
say that our nation's restaurant industry is the cornerstone of the
economy, careers and community involvement.
Mr. Chairman, I am living the American dream. I have over 30 years
of experience in the restaurant industry and I am the owner of a
successful restaurant in the nation's capital. I opened i Ricchi in
1989 after a trip to Italy several years before where I met a family
who owned a trattoria in the hills outside of Florence. I began working
in the kitchen, and subsequently the wine cellar and the dining room.
From that experience I became familiar with all aspects of running a
restaurant and a small business.
As a restaurateur and small business owner, there are many
challenges that I--and the industry--face. One such issue that has
surfaced, which could greatly impact the restaurant and foodservice
industry is litigation that seeks to hold the industry responsible for
some individuals' health conditions related to overweight and obesity.
As absurd as this may sound to some, these suits are being filed. Let
me be clear that I am not at all minimizing the issue of obesity, which
is a very complex and serious issue for some Americans. However, what
the trial bar is attempting to do--by capitalizing on this issue--could
have a significant and detrimental impact on my small business and the
entire industry.
This past year in New York, an attorney filed frivolous lawsuits on
behalf of people who claimed the food industry was responsible for
their obesity-related health problems. The first suit was never filed
and was publicly ridiculed for its senseless, baseless and ridiculous
claims. A federal judge recently dismissed a second lawsuit, but it was
recently re-filed, and more ``copycat'' suits may be likely.
Coincidently, members of the trial bar happen to be convening
tomorrow in Boston for a three-day workshop entitled ``Legal Approaches
to the Obesity Epidemic''. I'm told that some of the same individuals
who were associated with the tobacco litigation will play a prominent
role at the workshop.
This type of legal action, if permitted to go forward, leaves
little doubt in my mind that the costs associated with such a lawsuit
could put me out of business. My restaurant is a small business
employing 60 people. Most of my employees have worked in the restaurant
for more than ten years and some have been with me since the opening,
13 years ago. All of my employees are heads of their households.
Since September 11th, my business and many others in the urban/
fine-dining category have seen a dramatic decline in business. At one
point my sales were down 60%. Although business has come back somewhat,
other factors ranging from orange-level terror alerts to the current
downturn in the economy have presented challenges. While I am confident
we will overcome all of these obstacles, the prospect of dealing with
the legal fees alone from a potential lawsuit causes me grave concern
for the future of my business, my employees and our industry as a
whole.
I am honored when my customers choose to dine at i Ricchi. However,
the thought that someone can file a lawsuit based in part on a choice
they have made regarding where to dine and what to eat is disturbing.
Perhaps no other industry offers a greater variety of choices to
consumers than restaurants. One of the many strengths of the restaurant
industry is the broad spectrum of cuisines and culinary options that
customers are offered.
There are 870,000 restaurants in the United States--all of which
provide individuals the opportunity, flexibility and freedom to choose
among a variety of high quality, safe, healthy and enjoyable types of
cuisine. And once a customer enters a restaurant, an individual is
presented with an array of choices designed to accommodate his/her
tastes and preferences. Customers are also capable of customizing their
meals, whether it is food-preparation method or substitution of food
items to meet individual needs.
From my own perspective, my employees and I strive to provide
maximum value to our customers. This starts with offering a variety of
choices. We also deliver value through high quality ingredients and a
variety of portion sizes. I often provide a tasting menu for my guests
to sample small portions of a variety of items on my menu. Ultimately
it is our job to please our customers every way we can. As anyone who
is in the product delivery and customer-service business can tell you,
the goal is to have your customers walk away satisfied. Not only do the
lawsuits we are discussing this morning fail to acknowledge the
voluntary nature of the choices customers make, they also do not
address the fundamental issue of personal responsibility.
I believe it is important to recognize that personal
responsibility, moderation, and physical activity are all key
ingredients to a healthy lifestyle. To solely target the restaurant
industry is overly simplistic, and that is clearly underscored by the
fact that 76 percent of meals are eaten at home. I'm not a dietician,
but I do know that dietary experts agree that all foods can be part of
a balanced diet. Therefore, it doesn't mean that one must give up
certain foods, it means setting limits on how much and how often.
Healthful eating patterns are not created or destroyed by one meal or
one food. It is the overall pattern of food intake and choices over
time that are important to a healthy lifestyle; especially when balance
and moderation are complemented by physical activity and personal
responsibility.
The good news is that personal responsibility remains a strong
American value. A convincing majority--89 percent--say that personal
responsibility (e.g. individuals themselves, lack of exercise or
watching television) is most responsible for why two out of three
Americans are overweight according to a recent survey by the Grocery
Manufacturers of America (GMA). Also, according to National Restaurant
Association research, an overwhelming 95 percent of Americans feel they
are qualified to make their own decisions on what to order when dining
out.
The statistic from the GMA survey touches upon the lack of
exercise. This issue has certainly raised the awareness of how
important physical activity plays a role in attaining and maintaining a
healthy lifestyle. The Centers for Disease Control and Prevention and
numerous studies have shown that we have an incredibly sedentary
society. According to the CDC, more than 40 percent of Americans are
entirely sedentary. And, children are spending on average more than 4
hours a day watching TV or playing video games, instead of playing
outdoors or getting some form of physical activity. These are just some
of the many factors of the multi-faceted issue of obesity. And, there
are numerous sensible and achievable solutions that can help address
this issue much more effectively than filing frivolous lawsuits that
only aim to help those who are filing them.
Mr. Chairman, with 11.7 million employees, the restaurant industry
is our nation's largest employer outside of government. If these
lawsuits are permitted to go forward, they could very simply jeopardize
my livelihood, my employees and my customers--whose freedom of choice
would be infringed upon. Additionally, I fear for the industry and the
impact these lawsuits could have on the economy. Rep. Keller is to be
commended for introducing H.R. 339 which would help prevent these
misguided lawsuits in the future. But more importantly, this
legislation focuses attention on personal responsibility and the
voluntary menu choices we all make, rather than on more costly and
unwarranted litigation.
Mr. Chairman and members of the Committee, thank you again for this
opportunity to appear before you today. I would be happy to answer any
questions.
Mr. Cannon. Thank you.
Mr. Berman, you are now recognized for 5 minutes.
STATEMENT OF RICHARD BERMAN,
THE CENTER FOR CONSUMER FREEDOM
Mr. Berman. Thank you, sir. Batting cleanup, I think I am
going to take the opportunity to put some of this in a new
perspective. For example, Mr. Banzhaf testified there are
300,000 obesity deaths each year. These are actually called
obesity-related deaths, and this number is taken on some aspect
of an urban legend. To qualify as an obesity-related fatality
the death need not have anything at all to do with body weight.
If an obese man dies in a car wreck, the death is obesity-
related.
The respected New England Journal of Medicine has taken
issue with these statistics as well as the Department of Health
and Human Services, which characterizes the same 300,000 deaths
as resulting from physical inactivity.
More confusion arises from the so-called body mass index,
or BMI. In 1998, most people are unaware of the fact that the
Federal Government shifted its definition of acceptable weight
categories following considerable pressure from the World
Health Organization. And as a result, 30 million Americans
became overweight overnight without gaining an ounce, which has
in turn fueled more of this so-called obesity epidemic
hysteria.
Having said all that, we have gained some weight in this
country as well as in other countries around the world. The
Harvard Institute for Economic Research has found that since
the 1960's the average man has gained 12 pounds and the average
woman has gained 10. And whether you think this is a large
increase or not, we first need to understand that this weight
gain did not occur in a vacuum.
Researchers at the Natural Bureau of Economic Research have
attributed 60 percent of the weight gain to sedentary
lifestyles. At the turn of the century over one-third of jobs
in this country involved physical labor, today only 5 percent
do. More people are behind a keyboard and a computer than we
would have ever imagined before in the 1960's. Adults have
become sedentary by how they earn a living. Children are
experiencing the same change either through television,
computer games, video games, et cetera. And there is only one
State in the country today that requires daily physical
education for students in high school.
To make a long story short, this is not the same obesity
epidemic to everyone. In fact, it is really an exercise
deficit, according to most commentators, a deficit in physical
activity that has resulted from some lifestyle trade-offs that
we have been more than willing to make.
Mr. Banzhaf is also the proponent of the theory, which is
an unusually new theory, suggesting that the food that is being
offered for sale is addictive and he is seeking to somehow
bridge the gap between tobacco and food by relying on this
addiction argument. He is demanding that restaurants start
warning their customers that their next cheeseburger could have
a morphine like effect.
There are two sources for these claims. One is a pop
science magazine that he has been relying on and another is a
professional animal rights radical. The magazine, the New
Scientist, is a British consumer magazine which published an
article in February that suggested that food might have
addictive qualities. The New Scientist, which I am sure you
will hear about from time to time if you listen to Mr. Banzhaf,
is not a scientific peer review journal like the New England
Journal of Medicine or the Journal of the American Medical
Association nor does it pretend to be.
The other source for Mr. Banzhaf's food addiction theory is
the so-called, or the misnamed Physicians Committee for
Responsible Medicine. This is a front group for the animal
rights group, PETA, which shares its office space and has given
it close to a million dollars in financing. The Physicians
Committee which Mr. Banzhaf relies upon has been officially
censured by the American Medical Association, which calls its
recommendations, and I quote, irresponsible and potentially
dangerous to the health and welfare of Americans. The AMA
currently has two policy statements in force condemning this
organization for its willful misrepresentation of medical
science. The group leader, Mr. Neal Barnard, is currently
promoting a book that claims that meat is as addictive as
heroin and cheese is morphine on a cracker.
Incredibly, the trial lawyers currently suing chain
restaurants over obesity have actually made Barnard an integral
part of their case. Barnard is quoted four times in the most
recent filing against McDonald's, which Mr. Banzhaf is
associated with, and that filing includes two separate
affidavits from Barnard as well.
If you consider the amount of misdirection, junk science
and shameless deception being employed by the plaintiff's bar,
it is clear that restaurants need some reasonable amount of
protection from the unprincipled attacks and costs of
unnecessary litigation that are about to be launched. These are
costs that eventually get passed on to everyone else in the
form of higher food prices.
Apparently the trial lawyers are no longer able to police
themselves, and I applaud Congressman Keller for his
legislation. Congress should step in and provide some adult
supervision in this process.
[The prepared statement of Mr. Berman follows:]
Prepared Statement of Richard Berman
ATTACHMENT
Mr. Cannon. Thank you for your testimony, Mr. Berman. I am
going to defer to our Ranking Member for the first set of
questions.
Mr. Watt, you are recognized for 5 minutes.
Mr. Watt. Thank you, Mr. Chairman, and let me do a couple
of things at the outset here. First of all, I want to say a
special thanks to Mr. Schwartz for reminding me of the value of
what we are doing here today. I didn't mean to minimize the
value. I love the system in which we operate. Unfortunately,
sometimes it doesn't work like we think it is supposed to
operate, and I want to thank my Chairman for calling the
hearing now that I understand. I believe where we are the last
time we had a hearing of this kind, we had the hearing one day
and the markup the next day and the markup in the full
Committee the next day and the bill was on the floor a week
later.
Mr. Cannon. If the gentleman would yield. This is really
the first time we have had a chance to look at this issue, so
it is very much an open slate.
Mr. Watt. All the more reason that I should have given my
Chairman that presumption rather than presuming that we were
headed in the same direction that we were headed the last time.
And Mr. Schwartz reminded me of the value of that.
I want to thank Ms. Ricchi and Mr. Berman for being here
and for adding context to this in a business context and taking
it out of just the legal parameter that Mr. Schwartz and Mr.
Banzhaf have put it in, and that is important in the fact that
I am not going to ask you any questions. Doesn't mean that I
don't value what you have done. I just want to dwell for a
little bit on the legal side of this.
Mr. Schwartz and Mr. Banzhaf, first of all, is this just
about tort law? Mr. Schwartz talked about a restatement of
torts, which I think I fully understand and first good lesson I
have had since I was in law school about the restatement of
torts. So I needed that reminder, but it came back to me
quickly. But is this only about the tort standards or are there
things in this prospective litigation that deal with things
other than torts, such as trade practices and false advertising
and some of the claims that were being made in the tobacco
context?
Mr. Banzhaf. I am sorry, I thought he was going to go
first.
Mr. Schwartz. There can be claims that deal with fraud,
claims which is a tort--a direct misstatement or what
occurred--allegedly occurred in the case with McDonald's, where
the plaintiff thought that French fries were cooked in
vegetable oil but they had some meat liquid applied to that and
there was a settlement of that case.
That is not what is addressed in Mr. Keller's bill. Mr.
Keller's bill does go to tort law, a suggestion that obesity
should be a basis for a claim, and that is the core of tort
law. And that has not been in any way the traditional tort law,
Mr. Watt.
Mr. Watt. I am having a little trouble with that. But as I
read Mr. Keller's bill, it is substantially broader than the
Louisiana legislation. Are you assuming that Mr. Keller's bill
is the same as the Louisiana bill?
Mr. Schwartz. Yes.
Mr. Watt. The one I see here is not the same.
Mr. Schwartz. There have been a number of bills and you are
probably looking to the earlier 339 that was introduced. But in
response to your question, I was going to the bill that was
similar to the one that was in Louisiana.
Mr. Watt. You are assuming the Louisiana statute then?
Mr. Schwartz. Yes, sir. And there are claims outside of the
realm of tort law, companies are not--shouldn't misbrand and I
don't think there should be legislation that protects them from
misbranding or from fraud. So I kept my testimony to causes of
action that currently are just not allowed in traditional tort
law.
Mr. Banzhaf. Can I have a minute to respond because he
asked us both?
Mr. Cannon. I am absolutely certain that we will have time
to come back to this issue, but if you don't mind we will
continue in the ordinary course here. And Mr. Flake here. Would
you like to--yield you 5 minutes.
Mr. Flake. Thank the Chairman and thank those witnesses who
have testified. Mr. Banzhaf, in your testimony you seem to
indicate that this is preemptive and presumptive, this kind of
legislation, because this would grant, as you--quoted from you,
unprecedented immunity from suits before they have lost a
single one. Is that your position?
Mr. Banzhaf. It is premature because at this point none of
these cases has ever gone to trial. There has never been a
judgment, there has never been a verdict, and what we are
talking about is very wild possibility. The idea that Ms.
Ricchi's restaurant could be sued is a kind of a wild one. If
we are confined to the Restatement of Torts, Third, which you
asked about, sir, one of the requirements in there which Mr.
Schwartz pointed out is it does permit suits under the failure
to warn. That is exactly one of the major theories which is now
before the court in New York which will be argued in about 2
weeks.
Mr. Flake. This would seem to contradict testimony that you
have given here, which says that, quote, there could be a
powerful weapon against the public health problem of smoking or
this could be like the public health problem of smoking. Three
fat lawsuits have been won, two are poised to be won and one is
going to court later this month.
You know, if three fat lawsuits have been won, why do you
say that none of these have gone to court?
Mr. Banzhaf. Because none of them went to court, sir.
Mr. Flake. How can they be won?
Mr. Banzhaf. In the first case, my law students put
together a lawsuit against McDonald's, which McDonald's branded
as frivolous, yet they wound up settling for $12\1/2\ million,
most of which went to charity. Then they posted a public
apology on their Web site and corrected the misrepresentation.
The second one involves a so-called diet food in New York,
which recently settled to the tune of $3-4 million.
The third one was the suit that someone mentioned earlier
against Oreo Cookies for allegedly being in violation of
California law for not disclosing that they contained trans fat
and the dangers of trans fat. Once the company agreed to work
to remove the trans fat, that lawsuit was dismissed.
So I would count all three of those as wins.
Mr. Flake. I am having a hard time then----
Mr. Banzhaf. When I get $12\1/2\ million in a lawsuit, sir,
I think that is a win. I don't have to take it to trial.
Mr. Flake. So the lawsuit was won, as you stated in your
testimony?
Mr. Banzhaf. Because they settled for $12\1/2\ million,
giving the plaintiff everything they wanted.
Mr. Flake. Yet this legislation is premature?
Mr. Banzhaf. Yes, because this legislation wouldn't even
cover that, sir. That is one of the problems. You keep
switching the bill, and we don't know which one is which. One
of them may cover it, one of them may not. Both of them have
interesting loopholes, which I am very thankful for.
Mr. Flake. Professor Banzhaf, you also told the New York
Daily News, somewhere there is going to be a judge and a jury
that will buy this and once we get the first verdict, as we did
with tobacco, it will open the floodgates. Is this kind of
forum shopping you are doing across the country?
Mr. Banzhaf. No, sir; because exactly the same statements
were made by a number of experts on the other side. In fact, I
think Professor Schwartz at one point said we are likely to
find a judge who is going to do this.
Mr. Flake. I don't think they will argue with that. I am
just asking is this forum shopping?
Mr. Banzhaf. No. Because the two obesity suits, if you are
talking about obesity suits, were filed in Federal court in New
York, which is not one of the plaintiffs' favorites.
And in any event let me be very clear, if I may with all
due respect correct the Chairman. Mr. Chairman, I am not
counsel, co-counsel, or anything else on any of these lawsuits,
so I didn't forum shop. So far as I know, the attorney who
brought the suits happens to practice only in New York, so that
is where he brought the suit.
Mr. Schwartz. Mr. Flake, may I respond?
Mr. Flake. Yes. I would like your response on that.
Mr. Schwartz. You make a very important point. Because of
the time limits on testimony, I wanted to go to the highlights.
We have a system in the United States of where there are
some courts in this country who could accept these lawsuits and
allow them. And maybe freedom of choice works with courts, but
those individual courts--one court in Madison County, Illinois
can change the policy for this entire Nation.
If they say that a company is going to be liable for
obesity, or a restaurant is, the policy implications of that
are major. I am under retainer from one of the major investment
companies in the world, only on food. Now, they are not going
to be paying good money to me if they thought this was just
some specter in the sky. They know that this can happen, that
one lawsuit, one court in Illinois or in Mississippi, can
change how we live and what we do in this Nation.
That is one reason, a key reason why this Committee and Mr.
Keller and all of you should be looking at this issue.
Mr. Flake. So someone in a position here could be
considered a principled Federalist and still apply this law to
State courts as well as to Federal courts?
Mr. Schwartz. That is exactly right. Because this is not an
easy issue for me. Tort law is 99 percent State law. It is
difficult to select when, if ever, the Federal Government
should be intervening in any area of American tort law.
Congress has done it a few times, and this one is certainly one
that is worth your attention.
Mr. Banzhaf. And on this point I agree with Mr. Schwartz.
He says in his testimony, food cases. We have not yet reached
that point.
Mr. Cannon. Pardon me. But we need to keep this in response
to questions and within the time frame. The gentleman's time
has expired.
Mr. Watt.
Mr. Watt. May I raise a point of order here? You know I
believe in the free flow of ideas, and you know that probably
better than anybody. But it seems to me that if you are going
to apply the rules, you got to apply them in a consistent
manner. If you are going to cut somebody off in midsentence and
say you can't answer just because the light went out, then you
got to do it--there are five people over there on that side.
Last time I checked, there is only one over here. And it just
seems to me if we are going to apply the rules and apply
regular order, and you are going to cut off 5 minutes as soon
as the light goes on you, you got to do. You can't do it with
respect to who is speaking at this particular time.
Mr. Cannon. I think that the key here is that I have been
very consistent. At the end of 5 minutes we let whoever is
answering the question answer the question. We have done that a
couple of times.
Mr. Watt. Well, Mr. Flake was still asking his question
when the light went on, and that is fine with me. I just want
to make sure that you understand I am not objecting to him
continuing that, but I think you have got to apply this in a
fair way.
Mr. Cannon. The rationale for the fairness is that we have
had several people who come, who don't have all day because
they have other Committee assignments, and who have gone. So in
the first round of questioning I want to try and move it.
Mr. Watt. I have got to be somewhere else, too. Other
people have other business here to do, too.
Mr. Cannon. That is right. You are the Ranking Member and I
am the Chairman. That is why we are here. And other people can
come and go.
Mr. Watt. But that doesn't mean that I got to stay here.
Mr. Cannon. If the gentleman would like a second round,
that is----
Mr. Watt. No. I am just saying, please enforce--don't cut
one witness off and not cut the other witnesses off.
Mr. Cannon. What we are trying to do is----
Mr. Watt. Apply the same standard, that is all I am asking.
Mr. Cannon. Let me just suggest to the panel when the red
light goes on, and the question is being asked, the person to
whom the question is being asked may answer the question, and
then we will move on. But we are not going to go into a
protracted debate from the panel when we have people waiting
for questions.
I think that should satisfy your concern, Mr. Watt. We will
certainly be available for a second round if you would like to
do that. Let me point out----
Mr. Watt. I am amenable to you applying the rules, however
you apply them, as long as you apply them consistently, Mr.
Chairman.
Mr. Cannon. I think the way I have just explained the
rules, if you looked retrospectively on all of your hearings,
you will see that it has been highly consistent and it is going
to be continue to be consistent.
Let me point out, Mr. Banzhaf, that you corrected my
statement, but I was actually quoting from the biography that
you submitted to the Committee, which says, ``Presently Mr.
Banzhaf''----
Mr. Watt. Where is regular order now, Mr. Chairman?
Mr. Cannon. I am the Chairman. Presently Professor
Banzhaf----
Mr. Watt. But let me be clear.
Mr. Cannon. No. No.
Mr. Watt. The Chairman has certain prerogatives, but there
is regular order that applies in every Committee.
Mr. Cannon. And now you are out of order.
Mr. Watt. And you are out of regular order.
Mr. Cannon. Would you like to the submit that to the panel
for a vote?
Mr. Watt. I don't care who you submit it to, but I am just
asking you to apply the rules in a consistent manner. That is
all I am asking.
Mr. Cannon. We have--the gentleman and I have to work
together over a long period of time. I would like to know what
in particular, other than the fact that we have cameras here,
elicits the suggestion that I am not being consistent?
Mr. Watt. Because you are not being consistent. And I
suspect the people who are watching on these cameras understand
that you are not being consistent.
Mr. Cannon. What you would like to have is Mr. Banzhaf----
Mr. Watt. No, I am not----
Mr. Cannon.--speak whenever he would like to speak, because
he has already spoken out of order three or four times. Now, if
the gentleman would yield back to regular order, we will
proceed. I think it is appropriate in----
Mr. Watt. Let me be clear, Mr. Chairman.
Mr. Cannon. Pardon me----
Mr. Watt. Let me be clear, Mr. Chairman. I don't sanction
what Mr. Banzhaf did any more than you sanctioned what Mr.
Banzhaf did in starting this hearing. That is why I tried to
get us back to regular order. But regular order must be applied
consistently to both sides. That is all I want.
Mr. Cannon. I will try and do that. Now, regular order also
says in this Committee that when a person is personally
attacked or has a statement made, he can respond. Mr. Banzhaf
had--it was appropriately suggested that I misread his record.
I am going to read, and I think this is appropriate under the
circumstances, his submission to this Committee which is----
Minority Counsel. I drafted it from his statement.
Mr. Cannon. I believe Mr. Banzhaf is due an apology. What I
quoted from was the minority counsel's presentation of his
biography to the Committee, which says that Professor Banzhaf
is co-counsel in several lawsuits against such fast food
restaurants as McDonald's and Pizza Hut.
Now, I take it from your statement, Mr. Banzhaf, you are
not counsel but have been associated with, but not in the legal
sense of being counsel?
Mr. Banzhaf. I am not counsel or co-counsel on any of these
cases, sir. I am glad to hear that I will get a chance to
respond to some of the other things which you said about me in
the way of personal attacks.
Mr. Cannon. Well, we are going to go back to regular order
at this point.
Mr. Watt. Thank you.
Mr. Cannon. We have a vote coming. And so we will try and
get one more set of questioning here. Those who would like to
come back after the vote will be welcome to do so.
Mr. Feeney, would you like 5 minutes?
Mr. Feeney. Thank you, Mr. Chairman. Glad to return to
regular order. One is tempted while talking about diets to be
concerned about the potentially poisonous diets that some law
students at George Washington University may be exposed to.
My recollection, with respect to tort law, was--and
consumption--was that there is a certain foreseeability factor.
For example, there is an old case, the name of which I don't
remember, that suggests that people who order seafood soup may
expect to find some shells in their seafood soup, for example.
But if you order tomato soup, you may have an action against
the proprietor or the preparer for negligence.
But I am concerned that there is a drastic change in theory
that may potentially be occurring and that basically would
change the theory that an individual is responsible for what
they consume and has some personal responsibility in a free
society. If you are going to take away our freedom and force-
feed us a diet of food, then I guess somebody else is
responsible. But as long as we are going to have freedom to
decide what and where we eat, then I think that it ultimately
lies with the individual consumer in terms of what is good or
bad for them.
It is a huge concern to me that when we talk about
children, for example, if we are going to hold responsible
anybody, it probably ought to be the parent. And maybe the
appropriate way to expand tort law is to give some cause of
action in a class action suit against every mom or dad or
grandmom or granddad or uncle and aunt who has ever taken a
child to a fast-food place, because it occurs to me that the
dangers of overeating or overconsuming certain food products
are the most easily understood of anything for an adult in our
society, who has picked up any--there are dozens of magazines
on the shelf at the airport that promote ways to lose weight
and appropriate diets, let alone without having gone through
formal training.
I would also note that it seems to me that overconsuming
anything may be very dangerous. If you drink too much water you
may drown. And that all products, if used in an appropriate way
by an individual that has free will and free choice and behaves
responsibly, can probably be consumed fairly safely if they
have been approved by the Food and Drug Administration and
other protective mechanisms.
Potatoes are considered a fairly healthy vegetable and one
of the starches that are appropriate in a reasonable level in
our diet. But if you take them home and fry them in certain
things and eat them all day, every day, ultimately you are
going to have potential problems with obesity and other
indicia.
Mr. Berman, I was particularly interested in your comments
with respect to the fact one of the reasons for obesity in
children today--you talked about how adults, in your prepared
testimony, their lifestyle has changed because of the way we
work, for example. A lot more of us are sedentary.
But children are much more sedentary at times. It is a
constant fight sometimes. Under the theory that it is not the
consumer and the adults that basically control what a child
does or what the adult actually consumes, the same approach
that we are about to take with respect to McDonald's and Burger
King and Wendy's, if we allow this to continue, without the
good Keller bill, it seems to me is a perfectly appropriate
legal theory not only to sue dairy farmers and milk producers
who have--according to one of the colleagues that Mr. Banzhaf
quotes on a regular basis--suggests that there may be morphine
in milk, and that candy and milk and cheese and other products
are at least as addictive as drugs in many cases.
But not only would it be candy manufacturers and dairy
farmers, soft drink sellers, and producers and restaurateurs,
Ms. Ricchi; I don't know why if you are going to be held
responsible that the actual cooks that work for you and the
waiters and the waitresses that actually hands-on deliver this
poison that the theory suggests, I don't know why they are not
going to be held equally responsible.
It seems to me that anybody that touches a food product
that could be abused is responsible. But not only food
products, ultimately TV, computers, video games are leading to
a sedentary lifestyle.
So I have two sets of questions, Mr. Chairman. I hope it is
okay. Mr. Banzhaf, I think it is fair that you get a chance to
correct any suggestions about your background. And I want Mr.
Berman to comment on the expansion of legal theory that I
suggested.
So, Mr. Banzhaf, The Washington Post claims that you have
boasted that you have been called a legal terrorist. I don't
know whether that is true or not. I want to give you a chance
to respond to that.
They also suggest that you have or have had a license plate
that says, ``Sue the bast---s''--and it isn't completed. And
also they have suggested that you are affiliated and actually
the executive director of the Action on Smoking and Health, and
you have paid yourself a significant salary.
Are any or all of those true? Do you want to defend those
accusations? The Action on Smoking and Health, I get this from
the Consumer Freedom communications. We have got a board of
directors that includes 13 dead people, according to this
sketch. I don't know if any of that is true. I am giving you an
the opportunity to respond.
Mr. Banzhaf. May I, Mr. Chairman?
Mr. Cannon. The rules are pretty consistent. The questions
may be responded to after the gentleman's time has expired.
Mr. Banzhaf. I see. Thank you, sir.
First of all, I have never quoted from whatever this doctor
is that everybody seems to be condemning with morphine and so
on and so forth; don't know him, haven't met him, don't quote
from him. I have examined the pleading and the--for--as I
recall in the pleadings, he doesn't say anything about
addiction.
I have been called a legal terrorist. I have been called
the American Taliban. I have been called all kinds of things by
my enemies. I am proud that my enemies do use these very
forceful words against me, as I was proud of the Chairman's
introduction, which seems to demonize me and suggest that I
have all of these powers to change the law.
That was the first one. The second one is what, sir?
Mr. Feeney. The license plate.
Mr. Banzhaf. Do I have a license plate that says ``Sue
bast---s''? Yes, sir, I do. And am I executive director of
Action on Smoking and Health? Yes, I am.
Mr. Feeney. With unanimous consent, if I can just ask a
brief follow-up. Who are the ``bast---s'' that we are referring
to in the license plate, just out of interest?
Mr. Banzhaf. ``Sue the bastards'' is a phrase which is used
by many people. Use it two ways. First of all, if you put the
emphasis on the first part, SUE the bastards, it suggests that
if you are going to go after the bad guys, often suing them is
a more effective way, for example than coming before Congress,
at least for the little guy. That is what I am finding here
this morning.
Secondly, we can put the emphasis on sue the BASTARDS,
which means that if I am going to, as I do spend my life suing
people, I would rather sue people who I think ought to be sued
rather than simply sue people because somebody walks in my
office with a check.
Mr. Cannon. Thank you. The gentleman's time has expired. We
are going to take a short recess while we vote. There are
apparently two votes. And so this will probably be about a 15-
minute recess. We will begin as soon as we are back from the
vote. Thank you.
[Recess.]
Mr. Cannon. We had talked earlier about possibly having a
second of questioning. But, I think given the vote and the
shortness of time and lunch coming up, we are probably going to
miss that. Thank you. We appreciate the witnesses' speedy
return to the table.
We are going to recognize the gentlelady from Tennessee,
Mrs. Blackburn, for 5 minutes. Thank you.
Mrs. Blackburn. Thank you all very much for your patience
with us today, as we are back and forth with our votes, and I
appreciate that you all would wait until we returned so that we
can continue with the questioning.
I think this is an interesting issue for all of us, those
of us that are concerned about the need for tort reform, those
of us that are concerned about class action lawsuits, and some
of the dangers and implications that are there with those.
And, Mr. Banzhaf, I think I will go to you if you do not
mind. According to the Obesity Report, you are quoted as
saying: Banzhaf confirmed the suspicions and fears of many by
stating flatly that school boards that allow vending machines
in schools will be the next targets of obesity-related
lawsuits.
Won't these lawsuits direct money away from physical
education programs at those schools? And since inactivity is a
leading cause of childhood obesity, who might be sued after the
school boards? Also, would this take money away from nutrition
education programs that are needed in those schools? And do you
think that those are necessary? And can you name for me the
four basic food groups and give me their importance to what you
see as overall nutrition?
Mr. Banzhaf. Let me see if I remember all of those. We have
announced that one of the classes of legal actions we are
thinking of bringing is against school boards--not simply for
selling foods, and certainly not as somebody suggested before,
low-calorie foods--but when they bring onto the premises people
who are selling--the companies that is--either fat burgers or
sugary soft drinks, provide them to the students, sometimes
exclusively, so they have no other choice, and, in any case, to
a captive audience, and do it because they are being bribed to
do it. They have contracts which are called ``pouring rights''
contracts where they get a bribe for every fat burger or sugary
soft drink that is sold.
I have read many articles about it. And even those who
defend it seem to say, well, it is bad; we know it is not good
for the kids, but we do it for the money. We have a simple word
in the English language for people who do something they know
is wrong, and we call it prostituting yourself.
In law it seems to me that it is a breach of a fiduciary or
quasi-fiduciary duty for a school, which is trusted by the
students and the parents, to be encouraging children to engage
in activities which they themselves admit are unhealthful and
to do it because they are being bribed.
You said also that it has been shown that physical
inactivity is the major cause of childhood obesity. I am not
aware of all of the studies which have said that. Some of the
studies cited in my testimony suggest--for example, a very
careful one, which also is cited in somebody else's testimony
here--according to the New York Times, it says that 65 percent
of the cause of the obesity epidemic is fast-food restaurants.
Now, I don't know whether it is 65 percent or 35 percent or
15 percent. What I am suggesting is that if they are a
significant contributor, they should be held liable for that
fair share. If the parents, if the children, if the adults,
whatever, are responsible for another, they should be held--
then that works in, because we have what Mr. Schwartz will tell
you later, or sometime, is what we call comparative
responsibility or comparative liability.
We did away with the old idea that if you are at all
negligent or if you know anything about the risk, you cannot
recover. We now divide it.
You talked about class action. I am trying to get all of
these things in. I think class actions are a good example. In
class actions you do have lots of examples. You have got
thousands of cases filed. I believe many of them have already
been decided. You have a broad basis upon which Congress can
look out and say, well, we think this is wrong with it, we
think that is wrong with it. The courts have not corrected it
themselves, we ultimately may have to step in.
Here you do not have that. None of these cases has gone to
trial. None of the verdicts are in. We have at most a
suggestion that maybe this wonderful Italian restaurant might
some day be sued and you are purporting to step in. I would
suggest that what you want to do is what you do with class
actions: Wait until you are sure that there is a problem, get
enough data so that you know what the nature of the problem is,
and then deal specifically with it in terms of the details. Not
throwing out the baby with the bath water.
Rather than this blunderbuss attack where in round on, or
the first version of this bill, it would totally exempt all
food processes from any kind of lawsuit.
Now, we have those which are, quote, ``obesity related.'' .
Did I get everything?
Mrs. Blackburn. The four basic food groups. Are you aware
of those? The importance of education on those. I asked----
Mr. Banzhaf. I think it is very important that people
should be educated about them.
Mrs. Blackburn. Do you know the four basic food groups?
Mr. Banzhaf. I think so, but I am not sure I understand the
relevance of your question.
Mr. Cannon. The gentlelady's time has expired. I want to
thank the panelists for coming today. This has been our first
hearing. It has been a remarkably clear hearing. I can't
imagine four witnesses who could be more articulate from the
point of view of their perspective.
I know, Mr. Banzhaf, that you had some concerns about some
of the things that I said in my opening statement. If you will
submit to us a little statement--you can read my statement so
you can review it. We would be happy to make that available.
And we are concerned that we would be accurate. We would like
to respond to any concerns that you have about the particulars
of that.
Let me just say, this is a difficult problem. We have
people in America who are getting fat. I personally really love
the new food pyramid which makes a distinction between complex
carbohydrates and carbohydrates generally. It makes a
distinction between good fats and bad fats. I think that
Americans will tend to move in the right direction, generally
speaking.
Mr. Berman talked about the difference in the physical
labor of the work force at the turn of the century. A third
were doing physical labor. But at the turn of the century,
almost everybody walked more, rode horses more, did other
things more than we do today. So we have this huge
transformation in society, which, by the way, which has been
accompanied by a huge increase in the caloric intake of the
American people. We have a problem in adjusting.
I suggest to you that the way to solve that problem is
through the legislature, and if we don't move as fast as some
lawyers hope, then let's hope that we don't have to respond by
constraining the ability to sue.
On the other hand, there is in America a conflict between
legislating through courts and legislating through the
legislative process. And this Committee in particular, and the
Judiciary Committee generally, is going to be on the forefront
of that debate. We are not going--as legislators, we are not
going to allow this country to be hijacked by the decisions of
a chosen judge in a chosen place who is either desirous of
coming to a conclusion or gullible. That is just not going to
be the rule of law.
I think somebody mentioned how difficult this is on the
industry. The fact is there is terror out there that the
arbitrariness of a single judge will destroy our way of life. I
think that we need to change and evolve our way of life.
But here let me just congratulate each of you for the way
you have presented your topics. It has been remarkably
enlightening, very interesting, and very clear. And with that,
we are going to adjourn this hearing. Thank you very much.
Mr. Watt. Mr. Chairman, before you adjourn could I ask
unanimous consent to submit for the record the statement of Dr.
Neal Barnard. I ask unanimous consent to submit that.
Mr. Cannon. Without objection, so ordered.
[The information referred to follows:]
Prepared Statement of Neal D. Barnard
The Personal Responsibility In Food Consumption Act is strongly
anti-consumer, anti-health, and anti-safety.
First, the bill is needless. While its stated purpose is to ``to
prevent frivolous lawsuits against the manufacturers, distributors, or
sellers of food or non-alcoholic beverage products,'' this goal is
readily achieved without legislation. Using currently available legal
remedies, frivolous lawsuits can be and generally are dismissed before
significant costs are incurred.
Second, because the bill not only prevents frivolous lawsuits, but
also meritorious ones, the bill runs strongly contrary to consumers'
interests and effectively robs them of their day in court.
It would have shielded the Jack in the Box chain, where E. coli
food poisoning killed four people and sickened hundreds more in the
Pacific Northwest in 1992, from any legal responsibility. As it is
currently written, the bill requires plaintiffs to prove the production
of tainted or otherwise unsafe food violated federal regulations. But
federal regulations
are extremely weak and actually permit the sale of the foods
containing microbial contamination. Had this proposed legislation been
in force at the time of the Jack in the Box tragedy, parents who had
lost their children in that episode would have had no legal recourse.
Manufacturers who introduce new additives, such as sweeteners,
coloring agents, or preservatives that later prove to be toxic will be
totally shielded from all responsibility for their actions. While
manufacturers must have their additives approved initially, it is clear
that significant toxic effects are sometimes seen only after approval.
To suggest that lawsuits in relation to the damage they may have caused
are necessarily frivolous is an insult to consumers. The merit of these
issues deserves to be weighed by the courts.
Aspartame, which is marketed as NutraSweet, is the subject of an
ongoing debate as to its safety. While this debate continues, consumers
have a right to have legitimate grievances weighed in a court of law at
the appropriate time. To give manufactures immunity from litigation is
to remove much of their responsibility for marketing safe products.
Some manufacturers are now spiking beverages with ever-larger
amounts of caffeine and other chemicals and marketing them to children.
It is unclear where the food-additive industry is headed, and it is
inappropriate to shield manufacturers from all consumer actions, should
they overstep the bounds of safety.
Some industries deliberately target consumers who are vulnerable to
food addictions. At a dairy industry conference on December 5, 2000,
Dick Cooper, the Vice President of Cheese Marketing for Dairy
Management, Inc., described the demographics that allowed them to spot
a group he referred to as ``cheese cravers,'' and laid out plans to go
after them. ``What do we want our marketing program to do?'' he asked,
in a set of slides released under the Freedom of Information Act.
``Trigger the cheese craving,'' was his reply. And industry has done
exactly that, deliberately attempting to trigger addictive patterns of
food consumption with marketing programs through fast-food chains.
Cooper's presentation concluded with a cartoon of a playground slide
with a large spider web woven to trap children as they reached the
bottom. The caption had one spider saying to another, ``If we pull this
off, we'll eat like kings.''
The dairy industry is well aware of biochemical characteristics of
food products that may contribute to their addictive qualities--
characteristics that are essentially unknown to the lay public. Over
the past 20 years, dairy industry journals have carried scientific
analyses showing that opiate compounds are released from casein, the
dairy protein that is particularly concentrated in cheese products. One
of these casomorphins, as they are called, has about one-tenth the
opiate power of morphine. Simultaneously, research studies using
opiate-blocking drugs have shown that opiate effects do indeed
influence consumption of certain foods--not only cheese, but also
chocolate, sugar, and meat--the very foods that doctors would like us
to trim from our diets but that we end up quite literally hooked on.
At best, the bill is dangerously premature. Questions regarding the
role of the food industry in our nation's obesity epidemic are just now
being brought to light. Rather than immediately absolve the entire
industry of all potential liability, we should learn more about what
has happened to contribute to this crisis.
In summary, the food industry is right to object to frivolous
lawsuits. But legal remedies already exist to eliminate such suits at
early stages. To seek to avoid frivolous lawsuits by banning all
litigation regardless of its merit is to deprive consumers of
fundamental rights.
Mr. Cannon. I think, Mr. Berman, this is the doctor that
you referred to in your testimony. We would like to make a copy
of that available to you so that you may in particular want to
respond to what is in this document.
Mr. Watt. Can I just make it clear that by offering his
testimony for the record--I haven't read it, I don't know what
it consists of--so I am not adopting it as my position in any
way but just in the interests of getting the record complete.
Mr. Cannon. Let me ask unanimous consent that any Member of
the panel here, or not here, have 5 days within which to submit
questions to the panel. If you could respond to those as
quickly as possible.
Hearing no objection so ordered.
Thank you again for coming. This hearing is adjourned.
[Whereupon, at 11:55 a.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Robert W. Ney, a Representative in
Congress From the State of Ohio
Mr. Chairman, Members of the Committee, I want to thank you for
holding this important hearing today to focus the attention of the
Congress of the United States on an issue that has unfortunately become
very prevalent in our society, and becomes more prevalent by the day:
the issue of the harmful effects of abusive, and frivolous lawsuits.
The goal of the American civil court system is to make whole again
people who were harmed in some way. There is no doubt that there are
legitimate lawsuits filed everyday by people who have been wronged and
that deserve their day in court. However, there are also thousands upon
thousands of lawsuits filed, which have the sole purpose of enriching
the plaintiff attorneys' bar. Such was the case earlier this year when
suits were filed against the restaurant industry seeking monetary
damages claiming that it was the fault of the restaurateurs that caused
obesity in the plaintiffs of those suits.
Mr. Chairman, the reaction to these suits was nearly universal:
hysterical laughter. The plaintiffs' bar was not deterred. They weren't
deterred either, after the primary suit was dismissed in a New York
Federal District Court. That suit was amended and re-filed.
It is because of this sort of persistence that the Congress must
act. That is why I am an original cosponsor of H.R. 339, the Personal
Responsibility in Food Consumption Act. Mr. Chairman, as you know, it
is not the duty of the Courts to legislate, but the duty of the
Congress. I urge the Committee to continue to look into this issue and
this bill, and to report it favorably so that the full House may
consider it in the 108th Congress. If we do not act, the Court system
will, and another innocent defendant may be left footing a bill lining
the pockets of already wealthy trial attorneys.
Mr. Chairman, today you will hear testimony from both sides of this
issue. Some will speak of how detrimental these suits are, while some
will argue that they are needed to protect Americans. I hope that you
and Members of the Committee will analyze these arguments carefully. I
am certain that should you do so, you will discover what the true
motivation is: money. There is no legitimacy to these actions. It is
widely known that the most productive way to fight obesity is through a
balanced diet and exercise. To claim that suing the restaurateurs is a
worthy alternative is absurd, and must be fought with the utmost
vehemence.
Mr. Chairman, Members of the Committee, I thank you for your
continued leadership on this issue.
----------
Prepared Statement of Richard Berman
The written testimony submitted by Neal D. Barnard on June 19, 2003
is hopelessly biased and should be wholly disregarded by Congress.
Barnard is an acknowledged career animal-rights movement leader,
not a nutritionist. He is a psychiatrist by training, and he does not
currently practice medicine.
His organization, the misnamed ``Physicians Committee for
Responsible Medicine'' (PCRM) has long-standing ties to the well-known
animal rights group PETA (People for the Ethical Treatment of Animals).
Barnard is PETA's ``medical advisor,'' and he holds one of only three
seats on the board of PETA's foundation.
In addition, PETA has used this foundation (originally called the
Foundation to Support Animal Protection, recently d/b/a/ ``The PETA
Foundation'') to funnel nearly $1 million to PCRM. The foundation also
maintains PCRM's financial accounting.
The noted animal-rights watchdog publication Animal People News
calls PETA and PCRM ``a single fundraising unit,'' and has accused them
of attempting to ``evade public recognition of their relationship.''
Barnard is scheduled to deliver a speech on June 29, titled
``Reaching the Mainstream,'' to the ``Animal Rights 2003'' convention
in Northern Virginia. The arguments in his June 19 written testimony
regarding the supposedly ``addictive'' qualities of dairy foods are
typical of Barnard's methods of bringing destructive animal rights
messages to the mainstream public.
Barnard has also collaborated with some of the animal rights
movement's most violent criminals. In 2001 he co-signed a series of
letters (example attached) with one Kevin Kjonaas, a former
``spokesperson'' for the FBI-designated ``domestic terrorist'' Animal
Liberation Front.
Kjonaas now manages the U.S. campaign of an animal rights group
known as SHAC (``Stop Huntingdon Animal Cruelty''). SHAC's criminal
activists have made countless death threats against employees of
companies they don't like. They have beaten people with baseball bats,
detonated car bombs, and relentlessly stalked Americans and their
families for the ``sin'' of rejecting the animal rights philosophy.
Setting the animal-rights issue aside, Neal Barnard's organization
(PCRM) has been censured by the American Medical Association. In the
past, the AMA has called PCRM's recommendations ``irresponsible'' and
``dangerous to the health and welfare of Americans.'' At present, the
AMA has two policy statements in force specifically condemning PCRM for
its willful misrepresentation of medical science.
Barnard is currently on a book tour, encouraging unsuspecting
Americans to buy his latest title (called Breaking the Food Seduction),
in which he claims that meat and dairy foods are as addictive as
heroin. He (literally) calls cheese ``morphine on a cracker.''
He is adding to his notoriety through a direct connection to the
latest frivolous lawsuit filed against a restaurant chain (Pelman et al
v. McDonald's). Barnard is cited four times in Pelman's latest pleading
as an ``expert''; he has also filed two separate affidavits in that
case. I fear that Barnard is using the recent flurry of fast-food
litigation (and last week's timely hearing on H.R. 399) as a vehicle to
draw even more attention to himself and to his skillfully hidden
animal-rights agenda.
Purveyors of such irresponsible and baseless claims should be
identified as hucksters and dismissed from the public arena. When
social activists put on the sheep's clothing of the medical profession,
it can become difficult to know who's credible. I am hopeful that
Congress will recognize Neal D. Barnard as a publicity-seeking animal
rights zealot--not an honest broker on the issue of restaurant
litigation--and wholly dismiss his testimony.
ATTACHMENT
Letter from the National Association of Manufacturers
Prepared Statement of the American Insurance Association
The American Insurance Association, a national property and
casualty insurance trade association based in Washington, D.C. is
pleased to support H.R. 339, the ``Personal Responsibility in Food
Consumption Act,'' as an example of common-sense litigation management
that will hold the skyrocketing costs of the U.S. tort system in check
by reinforcing the doctrine that adherence to statutory and regulatory
requirements should act as a bar to frivolous lawsuits.
AIA's 424 member companies offer all types of property and casualty
insurance, including personal and commercial automobile insurance,
commercial property and liability coverage, workers' compensation,
homeowners' insurance, medical malpractice coverage, and product
liability insurance. The U.S. premiums for AIA's member companies
exceeded $103 billion in 2001. Our member companies provide commercial
property and casualty insurance to businesses and individuals that are
the targets of the lawsuits that H.R. 339 seeks to contain--lawsuits
that are a misguided attempt to replace regulation with litigation. The
vast majority of liability insurance policies written by AIA's member
companies couple the promise to indemnify against liability with a
contractual right and duty to defend. Because of this contractual
promise and our commitment to insuring businesses and supporting a
healthy and vibrant U.S. economy, AIA and its members have an important
and continuing stake in ensuring that the U.S. tort system functions
efficiently and effectively.
Rising Legal Costs and the U.S. Economy
Over the last 30 years, American businesses, including insurers,
have experienced an unprecedented increase in litigation. The main
reasons behind this steady, at times explosive, growth have been the
expansion of causes of action and the liberalization of tort rights. A
sampling of the more significant legal developments include adoption of
strict liability for products, comparative negligence in place of
contributory negligence, environmental exposures, employment practices
liabilities, expanded duties of directors and officers to stockholders
and customers, and increased availability of class actions. Clearly,
these expanded exposures have vastly increased the cost to American
businesses of defending lawsuits.
In turn, the growing tort system has had a marked effect on the
U.S. economy. Tillinghast-Towers Perrin, which periodically reviews
trends and costs of the U.S. tort system, recently issued an update
with the following conclusions \1\:
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\1\ Tillinghast-Towers Perrin, ``U.S. Tort Costs: 2002 Update,
Trends and Findings on the Costs of the U.S. Tort System.'' All tort
cost data and conclusions based on the data cited in this Statement
have been taken from this Tillinghast-Towers Perrin Update. Page
references have been omitted, but can be provided.
Tort costs have outpaced short-term and long-term
economic growth. Over the last 50 years, U.S. tort costs have
increased 100-fold while overall economic growth has increased
only 34-fold and the population has grown by a factor of less
than 2. The 14.3% rate of growth in tort costs in 2001--the
highest annual percentage increase since 1986--far exceeded the
2.6% increase in overall economic growth (as measured by gross
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domestic product).
Tort costs are hurting U.S. consumers. U.S. tort
costs are equivalent to a 5% tax on wages and average $721 per
U.S. citizen. By comparison, U.S citizens paid an inflation-
adjusted average of $87 in tort costs in 1950.
The U.S. tort system is an inefficient method of
compensating injured parties. The tort system returns less than
50 cents on the dollar to those it is designed to help and
returns only 22 cents on the dollar to compensate for actual
economic loss.
This trend is likely to continue into the foreseeable
future. Tillinghast noted that the trend in higher tort costs
continued in 2002 and that we can assume annual increases in
the 7-11% range for the next several years if no significant
efforts to contain these costs are implemented.
These conclusions are alarming. Tort costs are slowly eroding our
economy, and we should do everything possible to identify and eliminate
systemic inefficiencies that litigation breeds.
The Important Role of Definitive Statutory and Regulatory Guidance
in Preserving Fairness and Containing Costs
The equitable and responsible regulation of the food industry is
vital to the interests of everyone--consumers, regulators, legislators,
and businesses including insurers. As with other important commercial
products, there are many thoughtfully crafted laws and regulations
governing the manufacture, distribution and sale of food products, as
well as duly constituted agencies to provide enforcement. Despite their
adherence to this comprehensive network of oversight, participants in
many regulated industries are frequently forced to defend against
lawsuits brought by claimants seeking to circumvent the applicable
regulatory authority. These arbitrary and costly lawsuits undermine the
authority of settled law and qualified regulators, and they harm
consumers by depriving businesses of the level of certainty required to
efficiently respond to market conditions. Equally important, those
lawsuits contribute to the staggering costs of our legal system that
weigh heavily on the U.S. economy.
The property and casualty insurance industry is well aware of the
``regulation through litigation'' phenomenon, as we continue to face a
barrage of civil actions filed in courts around the Nation despite our
adherence to a complex system of state statutory and regulatory
requirements that makes the existence of such actions puzzling. In our
experience, the regulatory system is complicated enough without
superimposing the courts onto the existing enforcement structure.
In view of the highly specialized nature and broad public policy
ramifications of issues that arise in the food industry and other vital
areas of commerce, regulatory agencies such as the Food and Drug
Administration (``FDA'') are equipped with a variety of tools that make
them uniquely qualified to render decisions that impact entire
marketplaces. Unlike courts and juries, which are best suited to
resolving narrowly-defined individual disputes between specific
parties, regulators must apply their expertise and ensure the stability
of markets by balancing the interests of numerous stakeholders. Their
intimate knowledge of the complicated array of factors bearing upon
appropriate resolution of sensitive commercial issues is crucial to
ensuring that frivolous lawsuits do not undermine the financial health
of vital sectors of the economy such as the food industry and result in
massive increased costs to consumers.
AIA strongly urges the passage of H.R. 339 as a streamlined,
effective, and consumer-friendly tool to preserve tort rights and
existing regulatory authority without causing the U.S. economy to
buckle under the weight of an inefficient, out-dated litigation system.
Letter from the Michael F. Jacobson
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