Eric Schlosser, who is certainly no fan of fast food companies, questions whether lawsuits are the answer. "It wouldn't be my first choice," says Schlosser; moreover, he doesn't think it's necessary. "Fast food companies could actually change their behavior rather easily. Tobacco companies can't really change what they sell -- it's addictive, and dangerous. Fast food companies could just change the recipe to grilling instead of deep-frying and have a profound impact on the healthiness of what they're selling."

Litigation faces some hefty obstacles, as well. One of the biggest problems with class-action suits is that they increasingly rely on juries to make decisions where they're simply not qualified to judge. As the O.J. Simpson trial demonstrated, juries confronted with complex evidence they don't understand often just tune out. "What the juries see are dueling experts," says Professor Leebron. "It's very hard for a lay person to determine what the right answer is. The problems are extremely complex, and jurors often don't have the background to evaluate competing claims."

Unable to judge on the merits, juries often resort to emotion. This is why professor Aaron Twerski, a product liability specialist at Brooklyn Law School, thinks the tobacco suits succeeded: "A lot of what happened in tobacco is that the lawyers were able to demonize the defendants, because the consequences of using their products were so horrendous."

Our legal system depends on judges to restrain those appeals to emotion, by refusing to certify class actions that don't meet minimum legal standards, or by overturning outsized verdicts on appeal. This is where most legal observers expect food industry suits to fall down.

It will also be very tough even to establish sufficient causation to file such a suit. Berger says that obesity is only 60 percent environmental; the other 40 percent seems to be genetic, which places a heavy burden of proof on anyone suing McDonald's. Moreover, tobacco is overwhelmingly linked to lung cancer; the health effects of excess weight are broader, but harder to trace to a single cause. Then there's the "empty chair" problem: the difficulty of suing one party when other, responsible parties aren't in the courtroom. Tobacco litigation was helped by the extreme brand loyalty of smokers, which meant only one company to put in the dock. Unless trial lawyers discover a hitherto unsuspected band of strip-mall dwellers who subsist only on Kentucky Fried Chicken, anyone suing a food company for their weight problem is going to face an empty chair that metaphorically seats thousands, from the owner of the donut shop down the block to the neighbor who brings over those divine homemade brownies.

And if you get those cases to court, you immediately have to face the issue of how to allocate responsibility between the individual and the thousands of companies from which they've purchased food over their lifetimes. No, it won't be easy.

Nor will the suits pull the kind of political weight that the tobacco cases did. Remember, one of the major factors in the tobacco settlements was the state governments and attorneys general. But smokers are only 25 percent of the population; the overweight and obese not only constitute a majority, but also have a vocal advocate in the fat acceptance movement. Furthermore, almost every American eats something that would become more expensive as the result of any settlement. Attorneys general are political creatures; even with the prospect of a juicy monetary award, it would be a challenge to get them to sign on.

But even with all these persuasive arguments, legal scholars still aren't sure that obesity lawsuits are an empty threat. Judicial culture, says Twerski, has been shifting away from strictly enforcing the standards that could keep such cases out of court and toward letting the jury decide -- juries that, as already noted, have difficulty making decisions on the legal and scientific merits. Now with the public health establishment pushing us to view obesity as a disease rather than a choice, we're moving ever closer toward an environment where such suits could become a reality.

Which means we should start worrying now. Never mind the question of whether fast food is good or bad for you. Never mind the fear that we'll litigate some of life's basic pleasures out of existence.

Let's talk money.

The kinds of risk assessments that forced the tobacco companies to settle, even though the law seemed to be on their side, are performed every day by companies all across the country. Those risk assessments are a big part of the decisions they make about whether to invest in new technologies, make new products or build new plants -- the innovations that improve the quality of life for everyone. Clearly, if those companies are considering investing in, oh, an atomic death ray, we want them to be restrained by thoughts of liability. But if liability is expanded too far, such thoughts can do more damage than good.

If a company can be sued because someone took a perfectly legal product and, through overuse, harmed themselves and cost the taxpayers money -- well, would you risk making a new product if your customer's misuse could bankrupt you? Would you want to sell any product that was even moderately likely to be misused? It's tempting to dismiss such fears by saying that the economy won't crash because we missed out on the next Mrs. Field's cookies -- but what about the next automobile, or the next aspirin? As the tobacco suits have shown, any precedent set here will extend far beyond this industry.

So while some may be tempted to root for Banzhaf -- and others to dismiss him as a latter-day Don Quixote -- ultimately we can do neither. We have to seek less drastic ways to address obesity. And we have to take a long, hard look at both the legal and the legislative system, and ask how, and why, these suits might succeed. Otherwise, someday someone's long-shot lawsuit could send us all to the poorhouse.

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