Fast food obesity suits and tort law basics

I recently posted an an article on Facebook about a judge that decided not to allow a fast food obesity suit as a class action. My comments indicated that I agreed that these types of cases are not proper class actions but that I supported fast food obesity suits in principal. A debate then took place in the comments section over whether fast food obesity suits were a good thing from a policy perspective. I posit that application of general tort standards demonstrates why obesity suits are warranted.

Now, lets be clear: general tort law is probably the last thing the plaintiff's attorneys in the cases want to rely upon. Most states have enacted consumer protection statutes that impose strict liability on merchants and manufacturers that sell products whose defects lead to injury. And when you look at obesity suits from a products liability perspective, I almost sympathise with anti-obesity suit position. After all, it wasn't a defect in the execution of fast food that contributed to our obesity epidemic - it was a defect in the design. If fast food chains can be held liable because fast food is inherently dangerous, it means that I may ultimately be deprived of the option to occasional enjoy the guilty pleasure of fast food because others lack self control. That result is a bit ugly.

However, the debate in my comments was not about whether or not we ought to have access to fast food - it was about whether obesity was more attributable to personal and parental choices than fast food merchants. To counter that, I point to the way that fast food companies market their product: they hire teams of shrinks and marketing pros, extensively market and advertise directly to children, and load their products with sub par and quasi-addictive ingredients. The response: parents still have the power to say no.

So, again, being clear: I do not support obesity suits because of the nature of fast food. I support obesity suits because of the manner in which fast food companies sell their product. If fast food companies marketed exclusively to adults and clearly disclosed all information necessary for an adult to make an informed purchasing decision at the point of sale, I would have no problem with fast food, per se.

Now, the debate in my comments didn't use the term "causation", but this is element of liability for wrongful behavior that was being discussed. To hold another liable for an injury for the tort of negligence, you essentially have to show three things: (1) that somebody breached the general duty to conduct oneself in a manner that isn't likely to hurt other people, (2) that you you got hurt, and (3) that your injury was caused by the wrongdoer's wrongdoing. In my comments nobody was arguing that aggressively marketing a fattening and quasi-addictive product directly to children was harmless. Likewise, nobody was arguing that kids that eat fast food don't get fat. So what the debate was over was whether the resulting obesity actually caused by fast food marketing or lax parenting.

In order to be held liable for wrongdoing, it must be the proximate cause of an injury. This is different than merely being a cause in fact. Cause in fact is "but for" causation. For example, you can argue people wouldn't have to tolerate my wacky facebook posts but for my parents conceiving me. My parents are a cause in fact of my face book posts. However, it would be ridiculous to conclude that they were the proximate cause because all kinds of things happened since that fateful day that led to my wacky posting - much of which my parents had no control over whatsoever.

What was essentially being argued in my comments section was that lax parenting is something that was out of control of the fast food companies, severing proximate causation. However, determining whether an independent act severs proximate causation turns on foreseeability. Think of a cop dropping off a drunk at the edge of town. Is the cop liable if the drunk gets hurt because of somebody else's wrongful conduct? It depends. If the cop drops him off on the emergency lane of an intersection and he gets killed by an elephant run amok, I think the cop has a good case that the dude's death was caused by the whatever led to an elephant getting loose. If he gets killed by a driver that negligently veered into the emergency without looking, I think the cop better get a lawyer.

So, the question is whether lax parenting was foreseeable by the fast food industry at the time it aggressively marketed its fattening garbage directly to kids. And that's easy answer: lax parenting was not only foreseen - it was both hoped for and encouraged. It is well known that part of the fast food industry's marketing to kids is to give kids the tools they need to overcome parental objections. For example, marketing studies have recognised the power of child nagging on parent choices, and psychologists have helped them design ads designed to maximise the nagging. And that's just one well documented example of how fast food companies have intentionally targeted good parenting as something to be overcome.

When I asked how can parents compete with that, it was suggested that I ought to give parents more credit. And there is always the anecdotal examples of tough responsible parenting we love to cite when we think of how we parent (or would like to parent) our children. But the concept of parent is a vanity - its like when Glenn Danzig got knocked out back stage. Beneath all the muscles and martial arts training, he was still just a dude capable of getting knocked out by somebody that knew how to land a first punch. We like to think we're this unshakable advocate for our children's welfare. But most of us are tired, financially stretched thin, over worked, distracted by a million things, and find refuge from a harsh existence in the happiness of our children. We're only human - even the best of us. And when we have a huge well organized company spending millions upon millions and working tirelessly to undermine us, the result is a predictable percentage of us will fail.

How predictable? Predictable enough for fast food companies to feel comfortable betting large sums of money on it every time they budgeted for children's marketing. Predictable enough to set reasonable accurate forecasts for the sale of children's items. Predictable enough to have an understanding of the correlation between their marketing efforts and their sales results.

In short: lax parenting in the face of their marketing efforts was entirely foreseeable. To the extent fast food is the a cause in fact of childhood obesity, it is also a proximate cause. The lawsuits are entirely appropriate.











my problem is not with the fast food per se - but the manner in which it is marketed.