The next moral crusade

By Steven Martinovich
web posted February 25, 2002

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 (http://www.cspinet.org/) 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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