[Senate Hearing 108-446]
[From the U.S. Government Publishing Office]
S. Hrg. 108-446
COMMON SENSE CONSUMPTION: SUPER-SIZING VERSUS PERSONAL RESPONSIBILITY
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HEARING
before the
SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT AND THE COURTS
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
__________
OCTOBER 16, 2003
__________
Serial No. J-108-45
__________
Printed for the use of the Committee on the Judiciary
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WASHINGTON : 2003
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COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
CHARLES E. GRASSLEY, Iowa PATRICK J. LEAHY, Vermont
ARLEN SPECTER, Pennsylvania EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
LARRY E. CRAIG, Idaho CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia RICHARD J. DURBIN, Illinois
JOHN CORNYN, Texas JOHN EDWARDS, North Carolina
Bruce Artim, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
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Subcommittee on Administrative Oversight and the Courts
JEFF SESSIONS, Alabama, Chairman
CHARLES E. GRASSLEY, Iowa CHARLES E. SCHUMER, New York
ARLEN SPECTER, Pennsylvania PATRICK J. LEAHY, Vermont
LARRY E. CRAIG, Idaho RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas RICHARD J. DURBIN, Illinois
William Smith, Majority Chief Counsel
Jeff Berman, Democratic Chief Counsel
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 1
prepared statement........................................... 151
WITNESSES
McConnell, Hon. Mitch, a U.S. Senator from the State of Kentucky. 8
Musante, Gerard J., Founder and Chief Executive Officer,
Structure House, Durham, North Carolina........................ 20
Reaves, Wayne, President, Manna Enterprises, Inc., on behalf of
the National Restaurant Association, Anniston, Alabama......... 18
Schwartz, Victor E., Shook, Hardy and Bacon, LLP, Washington,
D.C............................................................ 4
Sutter, Russel L., Principal, Towers Perrin, St. Louis, Missouri. 11
SUBMISSIONS FOR THE RECORD
American Council on Science and Health, Ruth Kava, Director of
Nutrition, New York, New York, letter and attachment........... 30
Barnard, Neal D., M.D., President, Physicians Committee for
Responsible Medicine, Washington, D.C., letter................. 33
Buchholz, Todd G., U.S. Chamber Institute for Legal Reform,
Washington, D.C., study........................................ 36
Center for Legal Policy at the Manhattan Institute: Trial
Lawyers, Inc., New York, New York, Study....................... 62
Center for Science in the Public Interest, Michael F. Jacobson,
Executive Director, Washington, D.C., letter................... 94
Chamber of Commerce, Josten R. Bruce, Executive Vice President
Government Affairs, Washington, D.C., letter................... 96
Corn Refiners Association, Inc., and National Corn Growers
Association, Washington, D.C., letter.......................... 97
DecisionQuest and DRI, Nicole Quigley, News Advisory, Washington,
D.C., article.................................................. 98
Five Spot Restaurant, Seattle, Washington, release form.......... 109
Gallup Organization, Lydia Saad, Princeton, New Jersey, poll
analyses....................................................... 111
The Hill, July 22, 2003, Washington, D.C. article................ 160
McConnell, Hon. Mitch, a U.S. Senator from the State of Kentucky,
prepared statement............................................. 112
Musante, Gerard J., Founder and Chief Executive Officer,
Structure House, Durham, North Carolina........................ 119
National Food Processors Accociation, Washington, D.C., news
release........................................................ 123
National Restaurant Association, Wayne Reaves, President, Manna
Enterprises, Inc., Anniston, Alabama........................... 125
Schwartz, Victor E., Shook, Hardy and Bacon, LLP, Washington,
D.C., statement and attachment................................. 129
Sutter, Russel L., Principal, Towers Perrin, St. Louis, Missouri,
prepared statement............................................. 155
Wall Street Journal, July 23, 2003, article...................... 160
Zurich London, London, United Kingdom, article................... 161
COMMON SENSE CONSUMPTION: SUPER-SIZING VERSUS PERSONAL RESPONSIBILITY
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THURSDAY, OCTOBER 16, 2003
United States Senate,
Subcommittee on Administrative Oversight and the Courts,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:04 p.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Jeff
Sessions, Chairman of the Subcommittee, presiding.
Present: Senator Sessions.
OPENING STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM
THE STATE OF ALABAMA
Chairman Sessions. This Committee hearing will come to
order.
Because of the huge impact that litigation has on our
economy, it is imperative that we examine the novel and
expanded legal theories that are arising in our country. For
instance, we need to examine issues such as whether gun
manufacturers should be liable for the illegal actions of third
party individual gun users rather than for defective products
they may produce.
The potential detrimental effect of runaway verdicts has
been well known and well discussed, but there are huge costs
that arise from the defense of unjustified lawsuits, as well.
Indeed, such lawsuits, no matter how unfounded, can hurt a
company by extracting huge costs from it and can also depress
its stock and cause people to lose confidence in a company that
is otherwise acting legally.
I emphasize, however, that our utmost duty as Congress, as
a lawmaking body, is to take no step that would provide
immunity for any deceptive practices or known defects that harm
consumers. Our legal system serves as a great safeguard for
individuals who are damaged by negligent and bad acts and we
need to preserve that.
So our inquiry today examines whether legislation, such as
that filed by Senator Mitch McConnell, to provide certain
statutory defenses to food companies and restaurants who may be
sued for obesity claims by people who ate their products, is
justified.
Our legal system is based on our laws, which are, in
significant part, based on the actions of Congress. Every day,
lawyers take what we pass and take court interpretations of
those laws and file lawsuits based on them. Congress has every
right, I believe, to monitor what is going on in the legal
system of our country and has a duty to fix areas of the law
where abuses are occurring.
With that said, Senator McConnell's Common Sense
Consumption Act would limit the liability of food retailers
where the underlying premise for the litigation is not that the
food was defective or prepared unlawfully. In fact, the Act
deals with situations in which the food may be said to be too
good; so good that the plaintiff consumed too much of it and
suffers from obesity or weight gain because of that.
The allegations have been transformed from traditional
types of complaints, such as that the food seller cheated the
customer by providing smaller portions than promised, to
complaints that the promised portions are too large. The
question we examine today is whether this type of litigation is
so legally unsound and detrimental to lawful commerce that it
should be constrained by legislation.
First, is litigation like this legally sound? Professor
Schwartz, who is, I guess, the nation's leading expert on tort
law will testify later. Under classical tort law, in addition
to a person having an underlying injury, a plaintiff in a
lawsuit is required to prove causation. That is, but for the
action of the defendant, the plaintiff would not have suffered
an injury. To hold a defendant financially liable and require
them to pay for damages to another, we must, at least until
recent years, have clear standards.
For example, but for Wal-Mart placing a product on the
shelf, the plaintiff would not be able to purchase the product.
Is Wal-Mart liable for obesity? Wal-Mart has provided great
benefits to the poor by providing large containers of food you
can buy at low prices. Does this act by Wal-Mart give rise to
an action for obesity by a customer?
But for Internet advertising, the plaintiff would be
unaware of the product's availability, perhaps. Is the ad firm
liable? Is AOL?
This makes me think about the case that everyone learned
about in law school, Palsgraf v. Long Island Railroad Company.
The case started innocently with two individuals running to
catch the train. One of the individuals happened to be carrying
a package of fireworks. When the railroad guards helped the
individual as he leaped for the train, the fireworks package
was dislodged. The fireworks hit the ground and exploded. It
happened that Mrs. Palsgraf, who was waiting for another train
at the opposite end of the platform and happened to be standing
near some scales, was injured when the firework explosion
caused the scales to fall.
Mrs. Palsgraf sued the railroad company, essentially under
the ``but for'' theory. But for the railroad guard helping the
passenger as he leaped on the train, the package would not have
been dislodged, the fireworks would not have gone off, the
scales would not have fallen, and, therefore, she would not
have been injured. The great Judge Benjamin Cardozo wrote the
opinion and refused to allow liability to go that far. It was a
classic case of tort law.
Just as the Court decided that it was unreasonable to hold
the railroad company responsible for Mrs. Palsgraf's injuries,
it seems unreasonable to me and to most Americans to hold
sellers of food or any other individual entity responsible for
a plaintiff's obesity. To blame someone else for problems of my
own causing is contrary, I believe, to the great American
philosophy of individual responsibility. But we must admit that
there are some olympians in our legal system and plaintiff's
lawyers who are quick to use any legal tools that are
available, and they have been able to, in recent years, erode
the expectation of personal responsibility.
Second, are these lawsuits economically sound? For the
lawyers, there is no doubt about that. In a recent study by the
Tillinghast-Towers Perrin group, it was demonstrated that in
2001, trial lawyers made $39 billion in revenues while
Microsoft made only $26 billion and Coca-Cola $17 billion. That
has a great impact on the economy. That income to trial lawyers
came from other businesses.
But the costs don't end there. The defendant company must
hire expensive defense attorneys and have its employees spend
countless hours responding to lawyers and pay their court costs
and expert witness fees. In addition, companies are required to
purchase liability insurance, which takes away funds necessary
for research, expansion, and creating jobs.
No other nation must compete in the world marketplace
carrying such a heavy litigation cost. Eventually, these costs
are passed on to the consumer. Product prices increase and the
availability of products becomes scarce.
Finally, what is good public policy? Do consumers benefit
when sellers of food are on the brink? Should we shift the
country's obesity crisis to restaurants? What are the factors
that contribute to obesity, which is a very serious health
problem in America today that I do not mean to denigrate in the
slightest. Isn't it our sedentary lifestyles, our overeating,
and our snacking between meals? Some argue that genetics are at
play here as well.
The American people certainly do not support the idea that
overweight individuals should be able to sue the companies that
provided the customers what they asked for. In a recent Gallup
poll, nearly nine out of ten people rejected holding the fast
food industry legally responsible for the diet-related health
problems of people who eat fast food on a regular basis. This,
I believe, is common sense.
If the practices are deceptive or the products adulterated,
and the consumer is not on due notice, then liability may and
should lie, perhaps. But we need to be careful about holding
sellers of food liable for products that do not break any laws
or violate any regulations but, in fact, comply with laws and
regulations. We need to think really hard before we hold
sellers of food responsible because consumers eat too much. We
need to address how far the pendulum should swing. Is a grocer
liable for simply placing the Oreo cookies on the shelf? Is
your mom liable for her good cooking? I hope not. Or are
parents liable for not making their children exercise?
I tell you, if this litigation continues, we will find a
number of people lining up to sue Krispy Kreme, no doubt. I
know too many people who can't resist stopping for that ``Hot
Doughnuts Now'' sign, as I did recently coming back after a
nice supper. I just couldn't resist stopping and went in and
got some in my hometown of Mobile. If the sign is on, you get a
discount when you buy a dozen doughnuts. Does that add to
liability?
We have some outstanding restaurants in Alabama. Dreamland
BBQ is one that you have probably heard of that is associated
with the University of Alabama and is part of the heritage of a
football game weekend. You would be hard-pressed to find a
better slab of ribs than those. And don't forget about the
Dirksen South Buffet right downstairs, providing an all-you-
can-eat situation for Senators and their staff. We may see them
become the target of suits, too.
Well, we laugh. People do advertise in jest, I suppose in
jest. A restaurant in Seattle requires customers to sign a
waiver before eating one of their desserts called ``The
Bulge.'' While this may be more of a publicity stunt than a
true attempt to prevent legal action, it is no laughing matter
and obesity is no laughing matter. Eroding the legal system is
no laughing matter. And doing harm to the economy is no
laughing matter.
So we might see some humor in this hearing. Some of these
lawsuits are laughable. But in the end, our focus must be on
protecting the integrity of the legal system, the right of
plaintiffs to sue for legitimate harm, and the safety of the
economy.
I look forward to hearing our testimony today. Senator
McConnell, I know was tied up in a meeting. I expected him to
be the first witness, so I think I will give him a chance to
arrive before we start.
I think I will start off at this point and take this
opportunity to introduce our panel. We have some superb
witnesses.
First, Mr. Victor Schwartz is a partner in the Washington
office of the law firm of Shook, Hardy and Bacon and chairs the
firm's public policy group. Mr. Schwartz obtained his A.B. from
Boston University, his Juris Doctorate degree from Columbia Law
School. He was formerly a professor and dean at the University
of Cincinnati's College of Law and is co-author of the most
widely used tort case book in the United States. That is the
Prosser, the legacy of Prosser, one I am familiar with. He also
sits on many committees, including the American Law Institute,
which really does important work on law in America, and the
Advisory Committee to the Restatement of Torts, which is
probably one of the finest forums of thoughtful people in
looking at tort law in America.
Next, Russel Sutter is a consulting actuary for the
Tillinghast-Towers Perrin in its St. Louis office. He is a
fellow of the Casualty Actuarial Society and a member of the
American Academy of Actuaries. He is also a member of the
firm's Professional Standards Committee. Mr. Sutter is the
primary author of Tillinghast's tort costs study. This study
analyzes tort costs in the United States since 1950. The most
recent study was published in February of 2002 and was cited in
the National Underwriter and Business Insurance, among other
publications.
Mr. Schwartz, we are delighted to have you here. We thank
you for your long service both as a scholar and as a
practitioner and a student of litigation in America. We would
be glad to hear your remarks at this time.
STATEMENT OF VICTOR E. SCHWARTZ, SHOOK, HARDY AND BACON, LLP,
WASHINGTON, D.C.
Mr. Schwartz. Thank you, Mr. Chairman, and I appreciate
your holding this hearing. It is an important topic. You stated
my background, so I won't go into that. I will just go to the
core of why we are here.
American tort law has dealt with food for 240 years, and
recently, the restatement which you mentioned, Mr. Chairman,
decided to restate the law once again of food, and it is very
simple. If something is in food that is not supposed to be
there, if there is a nail in the mashed potatoes that you have
in a restaurant, the defendant is liable. There are no excuses.
It is super-strict liability. And if a food seller knows that
there is an allergen in the food, like peanuts, and doesn't
warn about it, they are going to be liable. There is no
question about that.
And if they violate a health and safety regulation--there
was a case a few years ago out West where hamburgers were not
cooked to 160 degrees and people got sick, and they violated a
health regulation and because of that somebody becomes sick,
they are liable.
In fact, when we did the restatement, the only issue that
we really discussed was about natural things that occur in food
and when is somebody liable. If you have a chicken sandwich,
there could be a chicken bone in it. Is the defendant liable or
not? And we came down with a ruling about what people might
expect, and they are not going to expect a six-inch chicken
bone in a sandwich and they will be liable if such a bone were
present. But that was it.
So--and that is the law of torts. Law professors will take
16 weeks sometimes to say, what do you think? and well, you
don't know what it is, but that is basically it.
The reason I think that this hearing is justified is
because there are some folks that don't see tort law in its
traditional way, which is to compensate somebody who is
injured. They see tort law as an engine to do what regulators
or legislators do, to change people's behavior in very broad
ways, to regulate but there are judges who are willing to do
it, and juries to, they literally change our lives.
Now, when judges decide cases, and you have argued so many
cases before courts, you know this, basically, there are two
lawyers there. But you can hold hearings with all sorts of
folks, bring them back, ask them questions, and you are in a
position to make broad public policy judgments. But when judges
do it--a former Secretary of Labor under President Clinton,
Robert Reich, called that regulation through litigation. The
purpose is not to compensate a victim. The purpose is to change
behavior.
Now, that has occurred with tobacco. It has occurred with
guns. Some attempts are being made with lead paint. But now the
focus has been on food and sellers of food.
There is a problem in this country, as you have said, Mr.
Chairman, with obesity, and if people consistently eat too much
and they don't exercise to burn off calories, they are going to
be overweight, and obesity can lead to very serious diseases--
heart disease, diabetes, other very, very serious things,
premature death. But the tort system is not there to correct
it.
Senator McConnell has done great work on this issue and you
asked a very, very important question about the role of this
body, for legislators to work in this area. This is your domain
in terms of what to do about obesity. In California, there is a
regulation, State, where they decided, a regulatory body
decided that soft drinks shouldn't be sold in schools. Now, we
may agree with that or we may disagree with it, but it was done
by the right people. It was not done by a court, it was done by
a regulatory body and one that is responsive to the electorate.
People in California showed something a few weeks ago. If they
don't like something in the law, they know how to toss it out.
But if a judge makes a ruling, the as elected
Representatives, electorate can't do anything about it, but
they can with you. And the policy that we are going to have in
this Nation with regard to what food is available, what choices
we have is--the appropriate place to consider that is here in
Congress.
One judge in one court can change everything. A court in
Illinois a few years ago said, in effect, that insurance
companies can't provide non-original equipment. So now
throughout the whole country, with every insurance policy, if
we have a fender-bender, we have to have original equipment.
The cost of the fender bender accidents has gone up close to
600 percent because of that one judge making that one
determination of a $1.7 billion verdict.
The biggest argument I have heard against doing anything on
food is that there is no crisis and there is no problem. I
mean, that is the best argument that I have heard. There has
been, and you know, a large case brought against McDonald's.
The judge's opinion came in two parts. The first part was over
80 pages and he gave room to the plaintiffs to try again. The
second part was 36 pages. Now, if something was utter nonsense
and a Federal judge didn't think it was important, you know
from your practice, and I know, too, that the judge can write a
three- or four- or five-page opinion and discuss the case. We
have over 100 pages written just about this problem. That says
to me that some other judge, some other place, at some other
time can let cases through.
And one reason that is going to help that is that
symposiums are being held to teach lawyers how to bring these
lawsuits. One was held up at Northeastern. I wanted to go. I
was told I couldn't go because I wouldn't sign a pledge that I
was interested in suing food companies. I asked if some people
in the investment community could go, who analyze food for one
of our large investment banking houses. He was told no because
he would not sign a pledge that he would sue an industry. I am
not going to say it was like al Qaeda up there, but it was
certainly limited to who could participate and these people
were being trained to bring obesity lawsuits and how to
overcome the existing problems.
There are problems. First, you have to show normally in
tort law that it was the defendant's product that injured you,
and there are many causes for obesity other than food.
Second, you have to show it was this specific product, and
we all eat in different places. That is a hurdle to overcome
and that is serious.
And finally, you have to show that the product is
defective. Now, you know sugar is not defective because it
causes tooth decay. They have to overcome that hurdle in the
law. But when--
Chairman Sessions. Well, you know that and I know that and
usually the legal system seems to know that sugar is not a
cause of liability, but we are drifting, aren't we, in court
rulings that leave these matters hanging? Classical rules are
being fudged.
Mr. Schwartz. Mr. Chairman, you are absolutely right. I
won't, because of time limits, give you all the rules that we
thought were in stone that then crumbled into dust. When an
industry becomes unpopular rules are change. The people who
supported tobacco suits, be they right or wrong, Professor
Banzhaf and Professor Daynard, very, very strong advocates,
have said, well. We did guns and tobacco. We are going to use
the same tactics, and I am quoting, against the food industry.
Ralph Nader has called the double cheeseburger a weapon of mass
destruction. This is the prelude to try to get courts to change
laws.
Senator McConnell has approached this issue in a very
modest way. He has left the common law alone. He has left
judges ample room to develop the common law. But he has said,
in one core area, we are going to say as the Congress of the
United States, you cannot bring a successful lawsuit, that
relates to food causing obesity, or sugar causing tooth decay,
natural things that occur, if people consistently overeat or
fail to exercise. And his bill is sound in that regard.
The only suggestion I would make, and I mention it briefly
in my written statement, is that with cases like that, it is
good to have some block on discovery fishing episodes because
that can cost people hundreds and sometimes millions of
dollars, where they are going to win in the end, but the
plaintiff knows that the defense costs are very high and that
it may be cheaper to settle the case than it is to go through
those costs, and so even though the law does not allow a claim,
practical real life causes companies to have to settle cases
that are unjustified.
I thank you for the time you have given me today. I would
be very pleased to help on this issue. It is one I believe in,
and I do believe this body can act. Congress has acted on ??
veteran, Congress acted to help the aviation industry in 1994
with the General Aviation Recovery Act. That has led to 25,000
jobs in an industry that was going under. This body has acted
with the Biomaterials Assurance Access Act. Companies that were
making medical products couldn't buy raw materials. You acted
and now they can.
So there are cases where there have been success in limited
areas with specific problems that have a national interest. The
McConnell bill and this area has all three. Thank you, sir.
Chairman Sessions. Thank you very much for your comments.
They are very valuable, and I think your insight into the whole
concept of tort law is very valuable.
I remember the year I became a lawyer in Alabama was the
year they eliminated common law pleading, which is, as you
know, a complex, historical procedure. I think Alabama and
Massachusetts were the last two to have it, you had to plead
specifically what your theories were and what your damages
were. Well, you can file your lawsuit on a napkin now. But it
has led to, I think, some muddled thinking, and the clarity
that the former legal system gave us on what really is an
actionable case and a non-actionable case has been eroded.
Maybe we can talk about that more.
[The prepared statement of Mr. Schwartz appears as a
submission for the record.]
Chairman Sessions. Senator McConnell, we thank you for your
concern about litigation in America. As I noted, we know that
litigation drains our economy. If it is just, we believe in it.
If it goes beyond our traditions, it can be damaging to our
legal system. Thank you for your leadership over a number of
years in dealing with this. The legislation you have offered, I
think is worthy of our consideration. So, I would be glad to
recognize you at this time for any comments you may have.
STATEMENT OF HON. MITCH MCCONNELL, A U.S. SENATOR FROM THE
STATE OF KENTUCKY
Senator McConnell. Thank you very much, Mr. Chairman. Let
me begin by saying I see that Victor Schwartz is providing
testimony today. I first met Victor Schwartz when I was
Chairman of this very Subcommittee many years ago, and it was
during that period that I became interested in, and convinced,
that legal reform was extremely important to the future
prosperity of America.
I must say, after 18 years, that I don't have much to show
for it. I have introduced bills on a variety of different types
of legal reform including, Auto Choice, comprehensive legal
reform, and medical liability reform. Regretfully, not much
tort reform has been achieved. I think the securities
litigation bill, which we passed a few years ago over the veto
of President Clinton, is one of the few we could point to that
addresses a very serious problem in our society.
But your hearing today, Mr. Chairman, and I want to thank
you very much for holding it, focuses on a narrow portion of
the growing industry of plaintiffs' lawyers going after
particular businesses. We saw that in the case of the tobacco
litigation and it is pretty clear that the next effort is going
to be to go after the food industry.
The bill upon which you are having a hearing today is the
Commonsense Consumption Act. This is another effort to get at
at least some reform of our Nation's legal system. As I
indicated earlier, it has been a long road with not many
successes to point to. But that doesn't mean that the need is
not great or that we ought not continue to try. I think this
area that you are focusing on today and the sheer absurdity of
these lawsuits should make this bill something that we could
all support.
I recognize that obesity is a serious problem in America.
No one denies that. We need only to look around to see that
many, many Americans are overweight. The issue before us,
however, is who is responsible for that. Who is responsible for
that extra weight?
Incredibly, some plaintiffs' lawyers believe the person
selling the food--the person selling the food--should be held
responsible for a person's weight gain. But I and most of
America believe it is the person eating the food, not the
person selling the food, who bears responsibility. Obesity
suits against food companies are premised on blaming the food
seller for how much food the food buyer chooses to consume.
This is patently absurd. But overzealous lawyers are filing
these suits anyway, and they have already cost companies plenty
in legal fees.
We all know who ultimately pays the tab when businesses
have to defend costly suits, and, of course, that is the
consumer. That is why we need to stop these abusive suits
before they drain more resources from an industry that employs
millions and millions of people nationwide. Every dollar a
business owner spends defending or settling a frivolous lawsuit
is a dollar not invested in creating jobs and building the
business.
I am not suggesting in any way that all tort claims against
all defendants should be prohibited. I am merely arguing for a
little sanity to the system, a little common sense, if you
will.
My bill, the Commonsense Consumption Act, is short and very
easy to understand. The bill simply prohibits lawsuits against
food producers or sellers in State or Federal court for claims
of injury resulting from a person's weight gain, obesity, or
health condition related to weight gain or obesity.
I want to emphasize that the bill does not provide in any
way blanket immunity to the food industry. In fact, I expressly
exclude from protection traditional claims like breach of
contract, breach of warranty, claims for adulterated food, and
violations of Federal and State statutes.
In the simplest terms, this bill provides protection from
abusive suits by people seeking to blame someone else for their
poor eating habits.
Pundits love to discuss the erosion of personal
responsibility in America. Many argue that we have become a
nation of hapless victims. These obesity lawsuits certainly
support that observation. Can there be any better indication
that we have reached rock bottom than when we begin blaming
others for what and how much we choose to put in our own
mouths?
There has to be some measure of personal responsibility for
the choices we make in life. Yet these lawsuits say, in
essence, that people have no free will, that they lack the
power to stop eating, and that someone else made them do it.
Someone else made them do it. Do we really think that someone
forces us to eat more than we want to eat? Do we really think
that people do not know that cake and ice cream aren't as
healthy as fruit and vegetables?
The logic of these suits is ridiculous. If we keep this up,
it will not be long until we sue car dealers when we get
speeding tickets. After all, it is not my fault that I exceeded
the speed limit. It is the fault of the guy who sold me the
car. They should know better than to sell cars that go fast.
When it comes to assigning responsibility for what we eat,
the American public points its finger at itself. Shortly after
I introduced my bill, the Gallup organization conducted a poll
about America's views on obesity and who is to blame. That poll
indicated that 89 percent of Americans oppose holding the food
industry legally responsible for diet-related health problems.
The same survey shows that even those people who describe
themselves as overweight oppose these lawsuits by the same
percentage, 89 percent. Obviously, most people think these
suits are ridiculous.
Unfortunately, some activists and greedy lawyers have
different ideas. There seems to always be a group of activists
out there running around telling us how bad everything is in
America. The food police are now sounding the alarm and saying
that the rise in obesity corresponds to the increased
availability of, quote, ``fast food.'' What they want you to
believe is that the food sellers are causing--are causing--
obesity. That is ridiculous.
You know what? The rise in obesity also corresponds to the
rise in household income, the rise in educational levels, and
the rise in life expectancy. Does that mean that we have the
capability to earn more, learn more, and live more, yet we have
no control over what we put in our mouths?
Mr. Chairman, obesity is a problem in America, but suing
the people who produce and sell food is not going to solve the
problem. Lining the pockets of personal injury lawyers will not
help those people lose weight. Bankrupting the people who make
and sell fast food or forcing them to settle ridiculous suits
because it is cheaper than taking your chances with a jury, is
not going to help anybody lose weight.
We must take action to stop these abusive, irresponsible
and costly lawsuits, and passing the Commonsense Consumption
Act is a good first step.
I want to thank you, Mr. Chairman, for holding the hearing
and for giving me and others an opportunity to testify. I have
some letters in support of the bill from the National Food
Processors Association, the U.S. Chamber of Commerce, and the
Corn Refiners Association and the National Corn Growers
Association, which I would like to have appear in the record at
this point if that is possible.
Chairman Sessions. They will be made a part of the record.
Thank you very much.
Senator McConnell. And I thank you so much, Mr. Chairman,
for exploring this. You are going to hear from some great
witnesses here.
[The prepared statement of Senator McConnell appears as a
submission for the record.]
Chairman Sessions. Senator McConnell, just before you go,
it seems to me that it is appropriate for a legislative body to
examine how our legal system is working, whether we think it is
working and lawyers are doing what the law and the courts allow
them to do. If we find that the legal system is developing in a
way that is not good for American society, Congress is not
invading the judicial province, is it, by to passing
legislation?
Senator McConnell. No, sir. You know, when you and I were
in law school, the notion that this kind of litigation would
have been brought was absurd on its face, and it is not at all
inappropriate for the nation's legislative body, seeing a
condition develop, to pass laws to prevent that from going
forward. We do that every week around here. The legal system
needs adjustments. It is embarrassing.
In my view, second only to the sorry state of elementary
and secondary education in America, our next biggest problem
that we could do something about are these new trends in
litigation. I think the carrying cost for civil justice in
America is just too high, just too high. So there is nothing at
all inappropriate about us legislating in this area and I
certainly hope we will.
Chairman Sessions. Well, I certainly agree with that. There
seems to be a feeling that Congress shouldn't stick their nose
in the Court's business. What a cause of action is and how it
is created is determined by our legislative elected body.
Judges weren't elected to set public policy. They were elected
to adjudicate disputes.
Senator McConnell. I say to my friend from Alabama, one of
the pieces of legislation that I introduced a while back that
didn't go very far would have required a litigation impact
statement of legislation. Congress is busily at work creating
new causes of action around here all the time. So if we can
create new causes of action, why can't we act to stem causes of
action? There is nothing more inappropriate about reducing the
number of lawsuits then there is in increasing them, which we
do on almost a routine basis around here every year.
I thank you so much for your interest in this, and
hopefully, we can push it forward.
Chairman Sessions. Thank you, Senator McConnell, for your
steadfast commitment and concern for the legal system. It is a
concern I share. I love the rule of law. I love the courts. I
practiced in them all my life. But judges read the statutes and
they rule on motions questioning whether a lawsuit or criminal
case is legitimate based on the laws Congress writes, and we
think they don't second-guess these laws. If we create a cause
of action, courts allow it to go forward. If causes of action
are going forward that are not justified, it is our burden to
change the law.
I thank you for that. I know you have a lot to do on the
floor, Mr. Assistant Leader--
Senator McConnell. Thank you.
Chairman Sessions. --and we appreciate your service. Thank
you very much.
Senator McConnell. Thank you very much.
Chairman Sessions. Mr. Sutter, we are delighted to have you
here. Thank you for coming, and we would be delighted to hear
your comments at this time.
STATEMENT OF RUSSEL L. SUTTER, PRINCIPAL, TOWERS PERRIN, ST.
LOUIS, MISSOURI
Mr. Sutter. Thank you, Mr. Chairman. My testimony does not
include specific comments on Senator McConnell's bill. Rather,
my testimony provides background on the costs of the U.S. tort
system, trends in those costs, and a comparison of costs in the
U.S. to those in other countries.
Our current research on U.S. tort costs shows the
following. First, the cost of the U.S. tort system was $233
billion in 2002. This represents 2.2 percent of the U.S. gross
domestic product, or GDP.
Second, in 2002, U.S. tort system costs increased by 13.3
percent over 2001. Costs in 2001 increased 14.4 percent over
costs in 2000. This total 2-year change of 29.6 percent was the
highest since 1986-1987. This is in contrast to the 5-year
period from 1995 to 2000 during which tort costs increased by
an average of 2.6 percent per year.
Three, since 1950, tort costs have increased an average of
9.8 percent per year, compared to an average GDP growth of 7.1
percent per year. Our analysis uses GDP on a nominal basis
before adjusting for inflation.
Fourth, U.S. tort costs were $809 per citizen in 2002. In
1950, tort costs were $12 per citizen before adjusting for
inflation, and $89 per citizen after adjusting for inflation.
Chairman Sessions. Wait a minute. That is $809 per citizen
per year?
Mr. Sutter. Yes.
Chairman Sessions. So that is close to $60 a month?
Mr. Sutter. Closer to $70, actually.
Chairman Sessions. Seventy dollars a month?
Mr. Sutter. Yes.
Chairman Sessions. That is a significant amount of money.
Excuse me.
Mr. Sutter. It also implies that real tort costs per
citizen have increased by more than 800 percent since 1950.
Five, while not part of our current study, 2 years ago, we
did a study comparing tort costs in the U.S. to those of 11
other countries. The 11 other countries included eight from
Western Europe, along with Canada, Japan, and Australia. That
comparison was based on 1998 data. At that time, the ratio of
tort costs to GDP in the U.S. was 1.9 percent. The other 11
countries had ratios of tort costs to GDP ranging from 0.4
percent to 1.7 percent, with an average of 1.0 percent. In
other words, tort costs in the U.S. were approximately twice as
high as in the other countries.
Six, we attribute the significant increase in costs in 2001
and 2002 to several factors, including asbestos claims, other
class action litigation, higher awards in medical malpractice
cases, an increase in the number and size of lawsuits against
directors and officers of publicly traded companies, and an
increase in medical cost inflation. The charts attached to my
written testimony provide details behind some of these
findings.
In closing, I would like to point out three items regarding
our analysis. First, this study was not paid for or
commissioned by any organization. The study is self-funded by
Tillinghast.
Second, the study does not attempt to quantify any of the
indirect benefits of the tort system, such as acting as a
deterrent to unsafe practices and products, or any of the
indirect costs of the tort system, such as duplicate or
unnecessary medical tests ordered mainly as a defense against
possible malpractice allegations.
And third, the purpose of the study is not to support any
particular viewpoint on tort costs. The study's purpose is to
quantify tort costs and the trends in those costs. We do not
take any position on whether the costs are too high or too low.
Mr. Chairman, thank you for the opportunity to present this
testimony. I will be happy to answer any questions the
Committee may have.
Chairman Sessions. Mr. Sutter, I thank you for that report.
I suppose I would note that there have been health and other
benefits that have resulted from litigation. But you also note
that there have been additional costs because of defensive
medical practices and other actions by companies out of fear of
being sued. I don't know if they balance one another out, and
you haven't expressed an opinion on that, have you?
Mr. Sutter. That is correct. We haven't expressed an
opinion.
Chairman Sessions. I don't think all the results of
litigation are bad, but there are some costs to litigation that
go beyond just the amount of money paid out in the lawyer fees.
Defendants may adopt policies that run up business or medical
costs that really don't provide a net benefit to the consumer
or patient.
[The prepared statement of Mr. Sutter appears as a
submission for the record.]
Chairman Sessions. Mr. Schwartz, with regard to the
testimony of Mr. Sutter and the point I raised earlier about
the lack of clarity in litigation, it seems to me that what we
are attempting to do, or what Senator McConnell is attempting
to do in this legislation is to say, if you file this kind of a
lawsuit, it is going to be dismissed. This is not a lawsuit
that should be filed. We have set policy on that. We made a
policy decision that companies that provide food shouldn't be
liable for health problems incurred by those who voluntarily
and knowingly accept that food. Is that one way to reduce
health care costs in America that have been going up, as Mr.
Sutter said?
Mr. Schwartz. Well, it will reduce costs in many, many
sectors. Certainly, money that is now going into the legal
system is less likely to be going into helpful things that will
assist people for example getting good information about health
costs and addressing health needs.
One area that I want to say that it will help a lot is the
uncertainty that this litigation creates in our marketplace. I
have received reports from Merrill Lynch, J.P. Morgan, and
others. They are a quarter of an inch thick about this food
litigation because the threat of this litigation, the specter
of it directly affects the price of common stock of very
legitimate companies who are doing legitimate business. They
are not engaging in any wrongdoing.
So this legislation draws a line and says to Wall Street
investors, that you no longer have to worry about baseless
lawsuits that are using obesity as a claim. I think that is
going to be one of the most significant economic impacts of
this legislation, to get rid of the uncertainty that hovers
over the restaurant and food industry right now because people
look to the past and they can see things where everybody
thought the litigation wasn't possible actually occured. It
just takes one or two Judges somewhere to--provides a claim.
Then you go into the settlement phase, as you know from a
very experienced career, the costs can be enormous. This
overall industry is an industry that is perceived to have some
money, and that attracts a continuing knock at the door unless
legislation says, this is an area where you can't go and this
case will be dismissed.
Chairman Sessions. Now, I think that is a very interesting
point. Let us take asbestos. Do you think that the insurance
companies and reinsurance companies, both of which get paid for
the insuring that they do, have been impressed? Do you think
the lesson of asbestos has not yet been lost on them, I assume,
and the specter of food lawsuits could or perhaps has driven up
insurance costs for food companies?
Mr. Schwartz. Well, I can't go into the--because I don't
have enough knowledge to say exactly what they would or would
not do. But certainly, they have seen some areas that people
thought were safe change. Asbestos had a unique profile in a
way, because the companies, some of the companies that sold it,
knew there was danger and that people who used it didn't know,
and that is very different from food, where anyone knows if you
consistently overeat, you are going to gain weight.
So I don't think there is a real direct analogy between
asbestos and obesity lawsuits. However, people in the
investment community appreciate that there right now are no
barriers, and while there is no successful suit today, if a
moderate Federal judge takes over 80 pages to dismiss a case
the first time and over 36 pages the second time, that there is
going to be a third and fourth and fifth time until they break
through.
And insurers in setting rates and premiums cannot here look
soley to the past. If they do, they may not have adequate
reserves. They have to look to possibilities that occur in the
future. And unless there is something at a national level that
says, you can't go there, they have to price their products
based on speculation that some of this litigation could be
successful in the future.
Chairman Sessions. Regulation by litigation--you mentioned
the lawsuit filed in Illinois?
Mr. Schwartz. Yes, sir.
Chairman Sessions. It is true under our current legal
system that a judgment rendered in a single county in a single
State can become binding throughout America?
Mr. Schwartz. Well, there was one decision, a $1.7
billion--I may be off a million or two when the figures get up
there--and it wasn't binding anywhere else, but it created a
fear that if an auto insurer continued to sell parts that were
not original equipment, they might be subject to equal billion-
dollar lawsuits. So they changed their behavior, even though
insurance regulators, the men and women who are in charge of
this very thing, in some States said you must supply the non-
original equipment so that there is competition in the area and
it was perfectly legal and legitimate in every State.
So you had a court through the threat of litigation, not
that they could bind people by law, but that threat changed
behavior, and similar things can occur in food. If there were a
lawsuit that would be successful against a fast food company
because they didn't have signs that were this high, six inches
high, showing how much fat was in a particular piece of food
they were selling, then restaurants are not bound by that, but
they are saying, my God, there was a verdict here. We are going
to have to change our behavior. Or there was a legal theory
suggesting that you must have several alternative menus. Then
somebody going into business has to decide whether he or she
wants to have that or not.
So it doesn't happen by law. It happens by the threat of
very, very large verdicts and people's fear that unless they
behave in a certain way, they can be eclipsed by those
verdicts.
Chairman Sessions. I think that is certainly true. You have
made that very clear.
With regard to regulations, they are ultimately a province
of the State legislatures and the United States legislature,
the Congress, are they not? I mean, if we choose to require
bigger disclosure statements and more nutrition information and
other things, I suppose we could even go further in regulating
the food industry. That would be a decision we should debate
out in public, make our case to the American people if they are
unhappy, and vote on it. They can vote us out of office if they
don't like it. But it seems to me that it is anti-democratic if
people that nobody even knows, a group of lawyers and a judge,
start setting public policy on a number of different issues.
One of those issues could be food.
Mr. Schwartz. Mr. Chairman, you are absolutely right. That
is the line between your responsibilities as a legislator and
courts. You can do things that courts can't do. You are one of
the few who have served in this body, but also you were an
Attorney General. You knew how the court system works.
A judge has a limited amount of information in front of him
or her. There are basically two lawyers speaking and briefs.
Courts are not in a position to set nationwide policy about
what should be disclosed in food, what the size of signs are,
what foods should be prohibited, what foods should be allowed.
That is this body, because you can have hearings, you can call
witnesses back. You are in the position to do it.
You also, when you make your rules, make them prospective.
You know from the common law this fiction that they are always
discovering the common law. So when courts make rules, they are
retroactive. It is changing the speed sign after you have
driven.
So this is the right body and State legislatures are the
right body to make rules of this kind. Why I believe this
particular issue is best handled by Congress is because an
individual State cannot set nationwide policy. A nationwide
policy should be set on obesity saying the responsibility for
dealing with this issue is with the Congress and the State
legislatures, not an arbitrary decision by one particular
court.
Chairman Sessions. How would you respond to some members of
this body who may say, well, I think that is good, but it
should be done by the State and not the Federal Government. We
don't have any business telling a restaurant in Alabama or
Texas how to prepare do their food. How do you justify a
Federal action as opposed to individual State actions?
Mr. Schwartz. That is a very, very good question because we
can't have the Congress of the United States rewriting American
tort law. It is only when something is truly national in scope
that this body should act.
Our food industry has become a national industry. Policies
set by chains, by other restaurants, is nationwide. But one
court in one State that isn't looking at our Nation's interest,
is not looking at the financial interests of our Nation, can
upset the apple cart with this particular industry. This
particular industry is woven in interstate commerce. Our food
chains and food supplies go across State lines. So having and
leaving this to an individual State is a non-answer because one
State or two States alone cannot set those rules.
And there is another more technical point and I will just
make it for the record. In some States, the courts are so
restrained on their legislatures. They want to control the tort
system that they hold actions by State legislatures that
attempt to make reforms to the tort system unconstitutional
under State Constitutions. There is no review that is provided
by the Supreme Court of the United States because it is done
under a State Constitution, and some State Courts have, in 97
decisions, thwarted attempts by States to do this.
So if you have a true national problem, and I believe that
this is because our food supply, our investment in food
companies is a nationwide problem, it is best addressed at this
level if and when people raise the States' rights issue.
Chairman Sessions. And under the Commerce Clause and under
the Diversity Clause in the Constitution, there is no legal
problem?
Mr. Schwartz. I will submit for the record, we wrote an
article in the Harvard Journal of Legislation addressing when
Congress can act and when there are limits. It deals with what
the powers are specifically under the Commerce Clause, not
pushing the Commerce Clause to the edge, because people who are
conservative don't want to do that. But a mainstream Commerce
Clause approach allows action in this area.
There is concern sometimes raised about the Tenth Amendment
because the Tenth Amendment strongly protects States' rights
and some actions by this body have been held unconstitutional
under the Tenth Amendment. But the Supreme Court has been
absolutely clear, and I will submit papers on this, too, that
the Tenth Amendment does not affect your right in a situation
precisely like this to implement the goal of having flow of
interstate commerce.
This is our Nation's food industry. The data that can be
given to you by the National Restaurant Association and others
show it is a nationwide industry regulated by Congress and
could be adversely affected by one or two States, or more, one
or two courts in individual States.
Chairman Sessions. Mr. Sutter, can you express an opinion
about what would happen if we eliminate some of these lawsuits
in the fashion that is done here? Can that affect litigation
costs in America?
Mr. Sutter. Mr. Chairman, we think that the costs of
litigation will continue to rise faster than GDP as it has over
the last 50 years, by an average of three points a year. I
guess the way I would look at it is if this type of litigation
grows, we would expect that gap to increase from perhaps three
points to four or five points. And so I think what this
legislation does is remove that threat of a widening gap. But I
don't think this legislation would take that gap down to zero.
There is just too much going on out there.
Chairman Sessions. I see it more as a single step, but
these are the kinds of litigation costs that are components of
the numbers that are surging upward that you described, are
they not?
Mr. Sutter. Yes, they are.
Chairman Sessions. Do you have anything you would like to
add, Mr. Sutter, to this discussion we have had so far?
Mr. Sutter. Nothing further, Mr. Chairman.
Chairman Sessions. It is a very, very interesting study you
have put forth. The size of the litigation industry at 2.2
percent of the GDP is just a stunning event. I remember when we
looked at the tobacco litigation when the tobacco companies
collapsed and all of that went forward. Plaintiff's lawyers
went from receiving fees of hundreds of millions of dollars to
billions of dollars. Maybe a plaintiff's firm of ten or 20
lawyers would be entitled to a fee of $1 billion. In Maryland,
I believe, it came in at close to $2 billion. In Texas, around
$4 billion.
So these are huge, huge costs, even by U.S. Government
terms, and I think Congress has a right to look at that. We ask
ourselves, is the legal system furthering our public policy in
a healthy way; if not we study and make sure we are acting
legally and constitutionally, and, if necessary, take steps to
reform it.
Mr. Schwartz, do you have any further insight into this
subject you would like to add?
Mr. Schwartz. No. I feel you have really gotten in the
record very, very important things. The fact that the
legislation is needed, that it is constitutional, that it
represents sound public policy, and it is an area where, I
think if Congress acts in this area, it puts a marker down to
say there are certain places where courts should not make law.
Senator McConnell mentioned automobiles. Well, lawsuits
have not been successful yet, but an automobile can go 90 miles
an hour. The same type of thesis would hold the car company
liable for a car that went 90 miles an hour, not the driver's
choice to drive that fast, would also hold a food company
responsible for somebody who consistently overeats.
I think it is a good message. There was other testimony
that I read and that you will hear that is brilliant because it
says these lawsuits really give the wrong signal, my final
point, to people, that the blame is external. It is not on
themselves, it is because of the seller of food. It is not my
responsibility for my own choice. This legislation puts the
right signal out saying individuals do have a responsibility to
exercise and have control over their diet. I appreciate your
time on this issue.
Chairman Sessions. Thank you. I am glad that you are
participating and writing textbooks for America's law schools.
I remember when I was in law school, a professor said when
someone is wrong, there is a lawsuit. There is a cause of
action. You just have to find it. And I think that is the
mentality, that if somebody has in some way been damaged or has
damaged themselves or whatever, the mentality is to look for a
way to get them compensation.
But that begins to muddle the principles of liability and
fault in America. I just think that we need to recapture that
sense, and I believe the Congress is going to have to play a
larger role than we have in the past.
I thank you for your leadership, Mr. Sutter. Thank you very
much for your valuable information.
Mr. Sutter. Thank you, Mr. Chairman.
Chairman Sessions. Our next witness is Mr. Wayne Reaves. He
is the President of Manna Enterprises, located in Anniston,
Alabama. Mr. Reaves owns seven quick-service restaurant
establishments known as Jack's Family Restaurants. His
businesses employ 180 individuals. He is a member of the Board
of Directors of the Spirit of Anniston, a commercial
development board in Anniston, Alabama. Mr. Reaves is a current
board member of the National Restaurant Association. He is also
a past president of the Alabama Restaurant Association. In
1996, he was named Alabama Restaurateur of the Year.
Dr. Gerard Musante is the founder of Structure House, a
residential weight loss center in Durham, North Carolina. He is
a clinical psychologist who specializes in adapting the
principles of behavior modification to the eating habits of
significantly overweight people and food abusers. He received
his professional training from New York University, the
University of Tennessee, Duke University Medical Center, and
Temple University Medical School. He is a member of the
American Psychological Association and the Association for the
Advancement of Behavior Therapy. He has served on the editorial
board of Addicted Behavior and as a consultant to the National
Board of Medical Examiners. He continues to serve Duke
University as an adjunct professor.
Mr. Reaves, it is a delight to have you here. I know you
are in the real world every day, working hard to provide a
product and make a living and pay the salary of your workers.
We would be delighted to hear your perspective on the issue
before us today.
STATEMENT OF WAYNE REAVES, PRESIDENT, MANNA ENTERPRISES, INC.,
ANNISTON, ALABAMA, ON BEHALF OF THE NATIONAL RESTAURANT
ASSOCIATION
Mr. Reaves. Thank you, Mr. Chairman. Chairman Sessions, my
name is Wayne Reaves. I am the owner of Manna Enterprises,
Incorporated, in Anniston, Alabama. I own and operate seven
quick-service restaurants operating in the region as Jack's
Family Restaurants.
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 S. 1428, the Common Sense Consumption Act of 2003. I am a
current member of the Board of Directors of the Association and
I have submitted my written copies of my full remarks for the
record.
Mr. Chairman, I would like to start by giving you a very
brief background on my business. I proudly have spent my entire
professional career working in the restaurant industry with
Jack's Family Restaurants. Jack's is a quick-service concept
that serves breakfast, lunch, and dinner, with a wide variety
of options on the menu.
I started out working in Jack's as a cook back in high
school and became general manager of the store shortly after I
graduated. While out of high school, I was drafted and served
in the Army before returning to Jack's, where I worked my way
up the management ladder. Today, as the only Jack's franchisee,
I own and operate seven restaurants, and while I am certainly
not the only one to work their way up in our industry, it is
gratifying to have done so within the same concept for over
three decades.
The restaurant industry has been very good to me and I hope
1 day to pass my business on to my son so that he can hopefully
share the same experiences, rewards, and challenges that I
have.
However, one of the challenges that the restaurant and food
service industry has been confronted with recently is the
string of frivolous lawsuits being filed against our industry,
claiming that they are the cause of some individuals'
overweight and obesity-related health conditions. These
senseless and baseless attempts by representatives of the trial
bar are nothing more than a distraction from finding sensible
solutions to this very complex issue and are a clear abuse of
the judicial system.
The American public also sees through the trial bar's
misguided approach and understands the frivolousness of these
irresponsible lawsuits. And I am pleased to share the good news
that personal responsibility remains a strong American value.
It has already been mentioned that in a Gallup poll conducted
in July, 89 percent of Americans indicated that the food
industry should not be blamed for issues of obesity and
overweight. We are also fortunate that common sense has
prevailed in the ruling in September by Judge Robert Sweet in
New York, dismissing the most recent lawsuit against a
restaurant chain claiming it caused obesity among some
Americans.
There is no doubt in my mind that trial attorneys will
persist in trying to file other similar lawsuits, as they made
no secret of their intentions to continue their efforts. As you
already know, this past June, members of the trial bar
community convened a three-day workshop in Boston entitled,
``Legal Approaches to the Obesity Epidemic.'' Some of the same
individuals who were associated with the tobacco litigation
played significant roles in the workshop.
Mr. Chairman, in the simplest terms, this type of legal
action, if permitted to go forward, could be very costly to my
business. It would only take one lawsuit of this nature to
potentially put me out of business and take away all that I
have worked for. As a businessman who employs now 196
individuals, that is a grave concern of mine. For more than
half of my employees, the job I provide them serves as their
primary source of income for their family.
Beyond the risk to my business, you asked Mr. Schwartz
earlier about the effect of the obesity litigation and what it
could have on the insurance costs. Beyond the risk to my
business, the mere threat of such a suit can have an impact on
the cost of insuring my business. Insurance companies have
acknowledged that they are watching these lawsuits very closely
and they recognize that this litigation may impact how they
price future liability products for food companies. One very
respected insurance industry publication has even coined the
phrase ``food fright'' in discussing this recent legal
phenomenon and its potential repercussions in the insurance
markets.
The food service industry accounts for four percent of the
nation's GDP. If this type of litigation is not kept in check,
there could not only be a negative consequence for the food
service industry, but for our Nation's economy.
In the restaurant industry, clearly, the customer comes
first. However, the thought that an individual can file a
lawsuit based in part on the voluntary choice he or she made
regarding where and what to eat is disturbing. Perhaps no other
industry offers a greater variety of choices to consumers than
restaurants. In any one of our Nation's 870,000 restaurants,
consumers have the opportunity, the flexibility, and the
freedom to choose among a variety of high-quality, safe,
healthy, and enjoyable types of cuisine.
The lawsuits we are discussing this afternoon not only 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.
If these lawsuits are permitted to go forward, they could
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.
Mr. Chairman, thank you again for this opportunity to
appear before you.
Chairman Sessions. Thank you very much, Mr. Reaves. It is
great to have you here.
[The prepared statement of Mr. Reaves appears as a
submission for the record.]
Chairman Sessions. Do we have much time on that vote? Five
minutes? We have got two votes back to back. I will get down at
the end of the first one and cast a vote and try to be one of
the first votes in the second and will be able to come back in
probably ten to 15 minutes. Sorry to interrupt this at this
point, but I will be right back. Thank you so much.
[Recess.]
Chairman Sessions. We will return to session. I apologize
for the interruption, the votes that we had. We are in the
Defense Supplemental War Act and some important matters and we
just have to be here. We have troops in the field at risk and
if we have to stay here until midnight and all weekend to get
it done, we need to do that, as far as I am concerned, and I
intend to work toward that end.
Dr. Gerard Musante, we are delighted you are here. Obesity
is a real problem in America. I would like to hear your take on
it as a person professionally engaged in those issues and we
are delighted that you could come. We will hear your statement
at this time.
STATEMENT OF GERARD J. MUSANTE, FOUNDER AND CHIEF EXECUTIVE
OFFICER, STRUCTURE HOUSE, DURHAM, NORTH CAROLINA
Mr. Musante. Good afternoon, Mr. Chairman. I am Dr. Gerard
J. Musante. I appreciate the opportunity to appear before you
today. I have been called here to share my expertise and
educated opinion on the importance of personal responsibility
in food consumption in the United States. This lesson is one I
have been learning about and teaching for more than 30 years to
those who battle moderate to morbid obesity, a lesson that
emphasizes the criticality of taking responsibility for one's
own food choices.
I am testifying before you today because I am concerned
about the direction in which today's obesity discourse is
headed. We cannot continue to blame any one industry or any one
restaurant for the nation's obesity epidemic. Instead, we must
work together as a nation to address this complex issue, and
the first step is to put the responsibility back into the hands
of the individuals.
As a clinical psychologist with training at Duke University
Medical Center and the University of Tennessee, I have worked
for more than 30 years with thousands of obese patients. I have
dedicated my career to helping Americans fight obesity. My
personal road, which included the loss and maintenance of 50 of
my own pounds, began when I undertook the study of obesity as a
faculty member in the Department of Psychiatry at Duke
University Medical Center. There, I began to develop an
evidence-based, cognitive behavioral approach to weight loss
and lifestyle change. I continue to serve Duke University
Medical Center as a consulting professor in the Department of
Psychiatry. Since the early 1970's, I have published research
studies on obesity and have made presentations at conferences
regarding obesity and the psychological aspects of weight
management.
Today, I continue my work at Structure House, a residential
weight loss facility in Durham, North Carolina, where
participants come from around the world and the country to
learn about managing their relationship with food. Participants
lose significant amounts of weight while both improving various
medical parameters and learning how to control and take
responsibility for their food choices. Our significant
experience at Structure House has provided us with a unique
understanding of the national obesity epidemic.
Some of the lessons I teach my patients are examples of how
we can encourage Americans to take personal responsibility for
health and weight maintenance. As I tell my participants,
managing a healthy lifestyle and a healthy weight certainly are
not easy to do. Controlling an obesity or weight problem takes
steadfast dedication, training, and self-awareness. Therefore,
I give my patients the tools they need to eventually make
healthy food choices as we best know it. Nutrition classes,
psychological understanding of their relationship with food,
physical fitness training, and education are tools that
Structure House participants learn, enabling them to make
sensible food choices.
As you know, the obesity rates in this country are
alarming. The Centers for Disease Control and Prevention have
recognized obesity and general lack of physical fitness as the
nation's fastest growing health threat. Approximately 127
million adults in the United States are overweight, 60 million
are obese, and nine million are severely obese. The country's
childhood obesity rates are on a similar course to its adult
rates, as well as increases in type II diabetes. Fortunately,
Americans are finally recognizing the problem. Unfortunately,
many are taking the wrong approaches to combatting this issue.
Lawsuits are pointing fingers at the food industry in an
attempt to curve the nation's obesity epidemic. These lawsuits
do nothing but enable consumers to feel powerless in a battle
for maintaining one's own personal health. The truth is, we as
consumers have control over the food choices we make and we
must issue our better judgment when making these decisions.
Negative lifestyle choices cause obesity, not a trip to a fast
food restaurant or a cookie high in trans fat.
Certainly, we live in a litigious society. Our
understanding of psychological issues tells us that when people
feel frustrated and powerless, they lash out and seek reasons
for their perceived failure. They feel the victim and look for
the deep pockets to pay. Unfortunately, this has become part of
our culture. The issue is far too comprehensive to lay blame on
any single food market or manufacturer. These industries should
not be demonized for providing goods and services demanded by
our society.
Rather than assigning blame, we need to work together
towards dealing effectively with obesity on a national level.
Furthermore, if we were to start with one industry, where would
we stop?
For example, a recent article in the Harvard Law Review
suggests that there is a link between obesity and preference
manipulation, which means advertising. Should we consider suing
the field of advertising next? Should we do away with all
advertising and all food commercials at halftime? We need to
understand that this is a multi-faceted problem and there are
many influences that play a part.
While our parents, our environment, social and
psychological factors all impact our food choices, can we blame
them for our own poor decisions as it relates to our personal
health and weight? For example, a recent study presented at the
American Psychological Association Conference showed that when
parents change how the family eats and offer children wholesome
rewards for not being couch potatoes, obese children shed
pounds quickly. Should we bring lawsuits against parents that
don't provide the proper direction? Similarly, Brigham and
Women's Hospital in Boston recently reported in Pediatrics
Magazine that children who diet may actually gain weight in the
long run, perhaps because of metabolic changes, but also likely
because they resort to binge eating as a result of the dieting.
Do we sue the parent for permitting their children to diet?
From an environmental standpoint, there are still more
outside influences that could erroneously be blamed for the
nation's obesity epidemic. The Centers for Disease Control has
found that there is a direct correlation between television
watching and obesity among children. The more TV watched, the
more likely the children will be obese. Should we sue the
television industry, the networks, the cable, the television
manufacturers, or the parents that permit this? Now we have
Internet surfing and computer games. Where does it stop? School
systems are eliminating required physical education. Are we
also to sue the school systems that do not require these
courses?
Throw social influences into the mix and we have a whole
new set of causes for obesity. Another recent study in Appetite
Journal indicated that social norms can affect quantitative
ratings of internal states such as hunger. This means that
other people's hunger levels around us can affect our own
eating habits. Are we to blame the individuals who are eating
in our presence for our own weight problems?
As evidenced in these studies, we cannot blame any one
influencing factor for the obesity epidemic that plagues our
Nation. Through working with obese patients, I have learned
that the worst thing one can do is to blame an outside force to
get themselves off the hook, to say it is not their fault, that
they are a victim. To do this can bring about feelings of
helplessness and then resignation. Directing blame or causality
outside of oneself allows the individual not to accept
responsibility and perhaps even to feel helpless and hopeless.
``The dog ate my homework,'' and ``The devil made me do it''
are statements that allow the individual not to take serious
steps towards correction when they believe that these steps are
not within their power. We must take personal responsibility
for our choices.
What does it mean to take personal responsibility for food
consumption? It means making food choices that are not
detrimental to your health and not blaming others for the
choices we make.
Ultimately, Americans generally become obese by taking in
more calories than they expend, but certainly there are an
increasing number of reasons why Americans are doing so,
producing rising obesity rates. Some individuals lack self-
awareness and over-indulge in food ever more so because of
psychological reasons. Others do not devote enough time to
physical activity, which becomes increasingly difficult to do
in our society. Others lack education or awareness as it
relates to nutrition and physical activity, particularly in
view of lessened exposure to this information. And still others
may have a more efficient metabolism or hormonal deficiencies.
In short, there is yet much to learn about this problem.
Congress has rightly recognized the danger of allowing
Americans to continue blaming others for the obesity epidemic.
It is imperative that we prevent lawsuits from being filed
against any industry for answering consumer demands. The fact
that we are addressing the issue here today is a step in the
right direction. No industry is to blame and none should be
charged with solving America's obesity problem.
Rather than pointing fingers, we should be working together
on a national level to address the importance of personal
responsibility in food consumption. The people who come to
Structure House have the unique opportunity to learn these
lessons, but they are only a select few. These lessons need to
be encouraged on a national level from an early age in schools,
homes, and through national legislation that prevents passing
this responsibility on to the food or related industries.
In closing, I would like to highlight the fact that
personal responsibility is one of the key components that I
teach my patients in their battle against obesity. This
approach has allowed me to empower more than 10,000 Americans
to embrace improved health. I urge you to consider how this
type of approach could affect the obesity epidemic on a
national level by encouraging Americans to take personal
responsibility for their health. By eliminating frivolous
lawsuits against the food industry, we can put the power back
into the hands of the consumers. This is a critical first step
on the road towards addressing our Nation's complex obesity
epidemic.
For years, I have seen Presidents call for economic
summits. I urge that we consider an obesity summit. Let me
suggest, instead of demonizing industries, that we bring
everyone to the table, representatives in the health care,
industry, advertising, restaurants, Hollywood, school systems,
parent groups, the soft drink industry, the bottling industry.
Instead of squandering resources and defending needless
lawsuits by pointing fingers, let us make everyone part of the
solution. Let us encourage a national obesity summit where all
the players are asked to come to the table and pledge their
considerable resources towards creating a national mindset
aimed at solving this problem. That would be in the interest of
the American people.
I feel privileged to be part of the Subcommittee's efforts.
I want to thank you for allowing me to testify here before you
today and I will be glad to answer any questions.
Chairman Sessions. Thank you very much, Dr. Musante. Your
personal experience with thousands of people who are overweight
gives real authority, I think, to your testimony and we
appreciate that.
[The prepared statement of Mr. Musante appears as a
submission for the record.]
Chairman Sessions. Mr. Reaves, as I understand it, the
restaurants do have health care requirements placed on them.
They are required to have available for view the nutrition
contents of a product and are required to meet other Federal
and State standards in order to maintain an operational
license. Would you agree that these standards are real and
required by law? They are not haphazardly complied with, but
fully complied with by most of the businesses in the fast food
industry.
Mr. Reaves. You are talking about the health regulations?
Chairman Sessions. Yes.
Mr. Reaves. Yes, sir. They are not only complied with, but
they are strictly enforced by the State health departments and
the local county health departments, more so the county, very
strictly.
Chairman Sessions. And you do have to provide calorie
content and fat content information on foods you serve in your
restaurants?
Mr. Reaves. No, sir.
Chairman Sessions. That is--
Mr. Reaves. That is not required.
Chairman Sessions. What restaurants is that required for,
none?
Mr. Reaves. Mandatory, none that I am aware of.
Chairman Sessions. Would you accept that as something that
would be beneficial to the process of weight gain evaluation by
customers?
Mr. Reaves. Well, the restaurant industry is an industry of
accommodation and choices. If customers have a question about
our menu, we are more than happy to answer any questions that
they have. A lot of companies now are providing information in
the form of brochures and on the websites they have that
information available, so--
Chairman Sessions. When a lawsuit is filed, that lawsuit
results in your having to hire an attorney. If you have
insurance, and I suspect you do--
Mr. Reaves. Yes.
Chairman Sessions. --does the insurance company provide
that attorney or do you have to have one of your own to watch
the insurance company?
Mr. Reaves. Well, I have liability, obviously, insurance,
and I do have to pay a deductible. But they do supply the
attorney. But I do have limits.
Chairman Sessions. And you do have limits.
Mr. Reaves. And once those limits are exceeded, then I am
on my own.
Chairman Sessions. Have you noticed any changes in your
insurance premiums over the last decade or so?
Mr. Reaves. Oh, yes sir. I mean--
Chairman Sessions. What can you tell us in your personal
experience, if you recall?
Mr. Reaves. I don't have the percentage, but it is
basically a steady increase. Now, you remember a time in
Alabama when we went through an insurance crisis, and that
abated a little bit. But basically, it is you just anticipate
an annual increase in the insurance rates. This past year, I
believe my number was 23 percent, which was a high year for us,
if I am not mistaken.
Chairman Sessions. A 23 percent increase?
Mr. Reaves. Yes if I am not mistaken. The year before, I
had a good insurance policy. This year, it was time to pay the
piper, but I did have an increase, yes.
Chairman Sessions. Of course, insurance costs are pulled
from your business' resources, making them unavailable for
salaries, or bonuses, or expansion os stores and restaurants,
is that correct?
Mr. Reaves. That is correct. That is exactly correct. And
one of the problems and the concerns that I have with this
obesity issue is the insurance industry that I mentioned
earlier and the article, ``Food Fright,'' one of the things
that they say in this article, they comment that ``when you
have an emerging issue, you look at what could be the potential
financial impact and what are the things you could do to
mitigate that impact. We could introduce a special endorsement
that may limit the impact of these types of lawsuits, or there
may be particular risks'' we wouldn't want to take.
``Nothing happens to change coverage until there is a
precedent-setting lawsuit--I mean, judgment or settlement'',
and this is out of their own, the insurance industry's
magazine, and they have gone on to say, ``insurers haven't
backed away from writing liability policies for restaurants
yet. . . They aren't likely to do so until an obesity case is
successful in winning a judgment or settlement against a
restaurant'', and if that was to happen, I can't imagine what
would happen to the rates. Would there be any restaurants or
groups of restaurants or segments of the restaurant industry
that the insurance industry would just say, we are not
interested in insuring. The risk is too high.
Chairman Sessions. Well, the theory is there. I have
represented a plaintiff in an asbestos case and the legal
theories are such that should cause stores to be concerned and
restaurants to be concerned. For example, if you have asbestos
damage and you have been made ill as a result and 100 different
companies had asbestos at the plant where you were working, you
can sue all 100 without any regard for how much one company
contributed, or whether that company's fibers actually got into
your lungs or not. Would it cause you concern as a small
business person that to the extent of your deep pocket, however
deep it is, you could be liable for the full amount of damage
to any one plaintiff?
Mr. Reaves. Yes, it very definitely bothers me. And think
about the restaurant industry. Seventy percent of our 870,000
restaurants nationwide are individually owned. They wouldn't
have the deep pockets. Many of those are local delis or a
family that has put together a Chicken Finger restaurant. They
wouldn't have the deep pockets to start with. I shudder to
think what would happen again if it got to that point.
Chairman Sessions. Mr. Reaves, to what extent do you worry
about lawsuits, some of which might be legitimate or some of
which might be fraudulent? In other words, someone comes in the
store and slips and falls, or maybe somehow in the food system
an error was made and an unhealthy product was delivered to the
customer. Is that something that a business person in your line
of work actually worries about on a daily basis, or is it
something you just worry about when you hear about it?
Mr. Reaves. No, it is absolutely something that I worry
about. I keep an eye on my coverages to, make sure that I have
got proper coverages, because I see and I get the industry
publications. I see where people are sued, and I have been sued
a number of times, never, as far as I am concerned, never
legitimately, for legitimate reasons, rather. But yes, it is
very definitely a concern.
Chairman Sessions. But you--
Mr. Reaves. And if for any individual that is not a
concern, it should be.
Chairman Sessions. Dr. Musante, as I understand your
testimony, you are saying that we are creating harmful
conditions for people who are overweight by telling them it is
somebody else's fault. It hurts them rather than helps them.
Mr. Musante. Senator, that really is at the heart of my
testimony. It is misleading. It really talks to causality and
all this. Once people begin to feel powerless, they begin to
feel that there is nothing they can do and then they are going
to look around for someone to blame, and that is at the heart
of all this.
One of the things that we always have found out clinically
with working with our patients, that in reality, when people
have become obese, they will tell us that the majority of their
calories are consumed privately. You do not see people publicly
eating large amounts of food on a regular basis to be able to
gain the kind of weight that required to acquire such high BMI
(Body Mass Index,) figures.
So this kind of private use of food is very much, from our
experience, is at the heart of their obesity. And to begin to
say that you can have no control over this overeating because
of some industry would, I think, create an even worse situation
in this country. It would lead obesity rates to increase more
quickly. And again, it would sap the resources that could
potentially be applied to a reasonable solution to this
problem.
Chairman Sessions. We recently had in the Joint Economic
Committee, of which I am a member, a hearing chaired by Senator
Bennett on obesity and the economic impact on the economy. We
discussed a number of things. Do you have any thoughts about
what we could do for young people, particularly to educate them
in a realistic and effective way to assume responsibility for
their diet and to avoid obesity--
Mr. Musante. Oh, yes, there is no question about it.
Children really begin to develop their eating patterns from
their parents, early on in life, and in fact, there is some
data that indicates that at approximately, two to 5 years of
age, many of the eating patterns can be laid down. Of course,
that is about the same time that children learn to walk, and I
know they are not walking to fast food restaurants at that age.
So they have learned patterns from their parents at home that
have might set them out on the wrong course.
Certainly, this is something we should be concerned about
because of the increases of obesity among children, increasing
instances of type II diabetes among children. For example, type
II diabetes traditionally has been called adult-onset diabetes.
That term really needs to be changed, and it is being changed
now. For example, in the State of Texas, there are more
adolescents who are type II diabetics than there are adults.
That is a serious, serious situation.
From what we have seen, these early experiences come on
early in life. They go into the school system where now any
education about nutrition or physical fitness has really been
taken out of the situation, and they are given a food program
very often that is determined by the Federal Government until
they get to their middle school years.
I can tell you that in my hometown of Durham, the
superintendent of the schools has said that the minute those
children have an opportunity to eat on their own, the foods
they tend to go for are french fries and pizza. This is very
indicative of the fact that even though these children might
have been given a proper experience by the kinds of foods that
the Federal Government has indicated they should be eating over
grade school, they have learned these negative food patterns
elsewhere, and the patterns are really learned again, from the
parents in the household.
There are programs, an experimental research program for
study that was done in Minnesota. The researchers there went
into the school system to alter the choices that children made
in the cafeteria. It was a junior high school where this joint
project got the vendors together, the soft drink people
together, the schools together, the parents together, and as a
group, they worked on this, and they really did affect the
amount of food or the quality of the foods that children were
eating as a result of a broader-based educational program.
So I would really urge something that is done early on in
life that includes the parents and really allows these children
to learn while they are going through school, the proper way in
which they can balance their food intake and their energy
expenditure and not to be saddled with this problem for the
rest of their life and endanger their health.
Chairman Sessions. Now, do I get an optimistic or
pessimistic note here; that if a school takes strong steps to
provide good advice on nutrition, that that will impact the
child?
Mr. Musante. The early results are showing, yes, it would.
And in fact--
Chairman Sessions. Though some children would go home and
eat unhealthy products.
Mr. Musante. Well, they might because of what is going on
at home, and the extension of that study now, the same
researchers in Minnesota are doing a pilot program with parents
to try to get them to change things. Interestingly enough, and
the group that they selected, the volunteer group of parents,
didn't particularly have a high level of education or a high
level of income, but they were all very concerned about this.
Everybody knows about this problem now.
In our own city of Durham, North Carolina, I am very
pleased that we are going to be working with the public
instruction, the county, the school system, and Duke Medical
Center to really develop a program that is going to be aimed at
helping the parents and the children in the schools to begin to
alter their selections. This is the kind of a program that is
needed, where we get groups of people together, all concerned
about this problem, so that we are working together, not
fighting in a courtroom.
This serves no purpose. It is adversarial. I have never
believed in that. I believe in bringing people together and
recognizing the problem, then going out together to do
something about it, and I think people are willing to do that.
You just have to give them a chance, rather than fighting with
them first.
Chairman Sessions. And the people you have counseled, do
you have success in having people take off weight?
Mr. Musante. Oh, yes. We have folks that lose significant
amounts of weight. Now, you have to understand, the people we
work with can be anywhere from 20 pounds overweight to 200
pounds overweight, so we really run the gamut in terms of
obesity and the like. But we have done follow-up studies a
number of times in various ways. When you are working with a
clinical population and you are working with people all over
the country, that is always a complex problem in terms of
tracking each particepant.
We are also now tracking our success--but we have done that
in various ways three times before. We are also doing it now
with a cohort of people that left about five or 6 years ago and
we are going to track them and we have a great deal of data on
these individuals and the results are very encouraging.
Generally, approximately half of our patients will go home,
continue to lose weight or keep weight off over a considerable
period of time, and that can be anywhere from six--when we have
looked at it, anywhere from 6 months to 5 years.
So the impacts can be made. You see people's lives that
turn around. You see people whose lives have been saved, and
they always come in, of course, and thank us for that, and I
always say, ``Well, it is not us, it is you. You have done
this. You have taken responsibility for this and look where you
are now.'' So it really is an issue that has to be directed
back to them.
Having said that, there still are many issues to learn
about this problem. We really are just scratching the surface.
I just came back this week from our National conference. The
North American Association for the Study of Obesity took place
in Fort Lauderdale. We presented some of our research there.
And this is a composition of folks from every discipline--
epidemiology, nutrition, surgeons, physicians, psychologists,
basic medical sciences. And certainly, everybody is looking at
every aspect of this problem.
The feeling was, well, there is so much to be learned. No
one could pinpoint any one thing. I have to say no one was
really pointing any fingers at the food industry. As a matter
of fact, the one finger that was pointed, I might add, was at
the Federal Government for not providing enough research money.
But other than that, there is an understanding that this is a
multi-faceted problem and we have to approach it in that way.
There are some things, however, we know as to what needs to be
done now, and that is moving into the schools early on, working
with the parents and getting them to set a course of action
that is going to lead to good health and not obesity.
Chairman Sessions. Thank you. I appreciate those comments.
Mr. Reaves, I know that the groups are plotting how to file
these lawsuits and they won't let Professor Schwartz
participate in their discussions. We can expect that if we
allow lawsuits to be filed on theories that are unjust and
certainly contrary to our basic history of what liability
should be for, then it is the Congress's fault. I find it hard
to say lawyers shouldn't get together and see if they can
figure out a way to file a lawsuit and be successful if the
lawsuit is consistent with the law.
I think a lot of this is Congress's responsibility. We are
going to have to step up to the plate and deal with the
litigation issue. Maybe we need to be spending more research
money on obesity and what we can do and what we can tell
schools and parents precisely to do to help themselves and
their children contain weight gain. That is important.
Do either of you have any further comments for the record
or for the hearing today?
Dr. Musante. Only to say that I applaud your efforts. I
applaud your efforts for bringing this to people's attention
and I do trust that our public discourse can be properly
directed.
Chairman Sessions. I thank you for that. I thank you for
your excellent testimony. Mr. Reaves, you bring us the
perspective of the person out trying to run a business and run
a restaurant. Dr. Musante, we appreciate your testimony from
the perspective of how people gain weight and what we can do to
help them take that off.
We will leave the record open for one week for follow-up
questions, statements, or any other items that Senators would
like to submit. This record, I think, is a pretty good record
dealing with the issues raised by Senator McConnell's
legislation. Using this, I think we can make a decision and
possibly move forward toward reform in this area.
We thank you very much. We are dismissed.
[Whereupon, at 4:22 p.m., the Subcommittee was adjourned.]
[Submissions for the record follow.]
[Additional material is being retained in the Committee
files.]
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