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Olson on obesity

For those who've been following my postings on the CDC's retraction of its flawed obesity study (see Nov. 30, Nov. 24), our editor has an extensive posting today on overlawyered. Included is a summary of prospects for "obesity" lawsuits in the near- and medium-term:

Finally, the Fulton County Daily Report, the Atlanta outpost of the Law.com empire, this summer published a useful discussion of the prospects for obesity litigation ("Trying Fat Suits On for Size", Aug. 3). The chief threat to food companies in the nearer term, as attorney W. Michael Holm (Womble Carlyle) notes, will come from private suits alleging false marketing or product adulteration -- theories which as it happens are often left untouched by state "cheeseburger bills" prohibiting a cause of action over sale of fattening food as such. Nor will the cheeseburger bills necessarily prevent plaintiff's lawyers from laying their hands on internal documents and publicizing them in the worst possible light, posing a significant reputational threat at least to their targets.

Causation issues -- which food or other unhealthy influence caused which disease in which persons? -- would pose a "huge" hurdle to private class actions as well as individual suits, observes Scott A. Farrow, of Troutman Sanders. On the other hand, Holm discerns a "significant threat out there for the food industry" from the potential for state attorneys general eventually to get together and sue on a disgorgement or unjust enrichment theory, which might also (a la tobacco) include a claim to recoup Medicaid and other public health expenditures. And Polly J. Price, a professor at Emory University School of Law, notes that restaurant chains' widespread fear of getting sued if they furnish consumers with inaccurate nutritional information has the presumably unintended consequence of discouraging them from releasing nutritional data at all, since many such chains "can't control every meal that goes out of the kitchen" and thus can't undertake to warrant the exact number of calories, carbs or fat grams that a worker on the spot will incorporate into a sandwich or salad.

Check out the entire posting here.



Rafael Mangual
Project Manager,
Legal Policy

Katherine Lazarski
Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.