[Senate Hearing 108-446]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 108-446

 COMMON SENSE CONSUMPTION: SUPER-SIZING VERSUS PERSONAL RESPONSIBILITY

=======================================================================

                                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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                       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
                                 ------                                

        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

                              ----------                              

                    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

                              ----------                              


                       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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