[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

                              ----------                              

                             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

                              ----------                              


                        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\:
---------------------------------------------------------------------------
    \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 
---------------------------------------------------------------------------
        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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