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The next moral crusade

By Steven Martinovich
web posted February 25, 2002

Surgeon General David Satcher holds up his report on America's obesity epidemic at a news conference held at the Department of Health and Human Services on December 13
Surgeon General David Satcher holds up his report on America's obesity epidemic at a news conference held at the Department of Health and Human Services on December 13

Where public officials go, America's lawyers are sure to follow. On December 13, 2001, Surgeon General David Satcher announced that obesity would soon be the number one killer of Americans and that school and industry policies had to change immediately lest the overweight one day find themselves snacking outside with smokers during break times.

Thanks to the precedent set by the legal war against tobacco companies and firearms manufacturers, class-action lawyers are now hungrily eyeing America's fast food chains and snack companies, with a potential jackpot that would make their earlier effort seem like light exercise.

"As we're getting more and more figures saying just how dangerous obesity is, people are wondering if tactics used against the tobacco industry very successfully and other problems such as guns less successfully could be used against the problem of obesity," said John Banzhaf, a professor at George Washington University Law School and "public-interest" lawyer who was involved in the gun suits, in a January 23 Foxnews.com story.

The idea follows the game plan that was used against the tobacco and firearms industries: appeal to people's pocket books. The overweight, the argument goes, impose a greater cost to us all because of health care costs, lost revenue and other indirect costs. To shift the cost back on them, people like Banzhaf argue that class-action lawsuits should be employed to penalize the companies who make the food that most of us eat. Higher prices, in theory, should lessen the demand.

"Where we have a problem which imposes a huge cost on society by a relatively small number of people, it's appropriate that that cost shouldn't be borne by everybody but confined to those who use the products or produce them. Why should I be forced to subsidize other people's bad habits?" he asked.

"If the sorts of plans bandied about by Prof. John Banzhaf et al were really carried through, we would see the price of many foods go up, many small producers go out of business from inability to calculate their possible future legal exposure, and a truly suffocating new extension of the 'government knows best' atmosphere of paternalism," responds Walter Olson, Manhattan Institute senior fellow and author of web site Overlawyered.com.

"I don't think the public would actually sit by while the lawyers took away their Doritos and Triple Whoppers."

According to Olson, lawyers are less likely to make a big push against an entire industry and instead - at least at first - concentrate their efforts on narrow efforts, such as the one alleging that McDonald's committed fraud by not telling vegetarians that their french fries contained meat flavoring. People may not want to give up their Doritos and Triple Whoppers, but any successful lawsuit will mean neither they nor their elected representatives had a voice in the matter.

Ultimately, the real significance of these trial balloons is what they tell us about the people floating them. Like their intellectual peers in the temperance movement a century ago and their philosophical allies in the anti-gun and anti-tobacco movements today, these activists and the lawyers who will one day represent them seek to control behavior they believe is wrong. Since politicians are afraid to look like fools, social change through litigation is the most effective path to their ends.

"The main significance of the story, to me, is twofold: One, the insight it provides into the psychology of those who seriously favor such a scheme; and two, the opportunity to question how, if at all, an inanity like this differs in principle from what we have already seen happen in such areas as tobacco and gun suits," says Olson.

If eating snack foods are an anathema, as people like Banzhaf seem to believe, that would make them evil, that is, something with no redeeming value to society and only capable of causing harm. A hamburger itself, they are all but saying, has a moral character -- the same claim about firearms commonly believed today. But snack foods aren't human beings and can take no moral position. Their position is the equivalent of a medieval priest ascribing demonic power to some object in the faint hope of ending a drought.

What opponents of snack foods are arguing is that our guilty pleasures are intrinsically evil and should be banned for that reason alone. What they fail to see is that whether something is good or evil can only be determined by how something is used and to what end: context. Something cannot be intrinsically evil in of itself, but only in relation to a person in a specific context.

The fact of the matter is that snack foods are not harmful to all of their users. They are also not addictive to all of its users. These two salient points add up to the inescapable conclusion that snack foods are not intrinsically evil. If you accept that they aren't intrinsically evil, it then raises the question: Are they of any value? The vigor of the industry and the seemingly endless parade of purchasers suggests that they are of value to someone. What do they value about snack foods? Are their reasons valid? Free people aren't obliged to answer to you for their personal choices, but if you asked their reasons politely they might tell you.

Sadly, if a class-action lawsuit were launched and was successful, other industries will become targets of legislation by judiciary. Where firearms, tobacco and snack food go, so will others like the meat and auto industries. The Center for Science in the Public Interest has already waged public campaigns against movie theatre popcorn, salt, alcohol, coffee, soda pop, Chinese, Italian, Mexican, Olestra, salad dressing, frozen dinners and sugar substitutes. And while Olson may be right that a move against snack foods has at best a slim chance to succeed in today's climate, one has to wonder if the public was equally as sanguine in the early days of the temperance movement.

Steven Martinovich is a freelance writer in Sudbury, Ontario.

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