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Can The Comparison With Addictive Drugs Such As Nicotine Work?

Monday, Aug. 26, 2002

This column is Part Two of a two-part series by Professor Sebok on the "Big Fat" Class Action lawsuit against fast food companies. Part One can be found in the archive of his columns on this site. - Ed.

Samuel Hirsch is the lawyer who filed a class action against the fast food industry on behalf of his client Caesar Barber. In justifying the suit, Hirsch argues that junk food is similar to tobacco in two respects.

Hirsch's comments indicate that sees the lawsuit as more than, and perhaps different from, a typical products liability case. His strategy, it seems, will be to highlight and capitalize our society's ambivalence about its love affair with fat and sugar.

While that may be effective as a matter of public relations, can it work legally? That is what this column will explore.

Why the Products Liability Lawsuit Against Big Fat Is Weak

As I argued in my last column, in the "Big Fat" suit, a products liability theory is likely to fail. It will be difficult to show that the Big Mac as a product is defective; the fat and sugar is exactly what we like about it. It will also be hard to convince a jury that the lack of explicit warnings is a problem; everyone knows junk food is bad for you.

Thus, Hirsch and his client may well be able to prove that Big Macs and Chicken McNuggets have caused obesity, diabetes, and high blood pressure in millions of Americans. But that is not the same as showing they are defective products under current tort law.

Courts are still unwilling to hold that a well-made, nondefective product is nevertheless too dangerous to be allowed on the market. They rightly, in my opinion, believe it is the legislature's job to determine whether a product has a "manifestly unreasonable design."

The New Strategy: Big Fat Didn't Tell The Consumer Junk Food Is Addictive

Hence Hirsch's switch of strategy. The argument is now that fast food is defective because it is addictive, and the fast food industry is hiding that fact from us. If this formula sounds familiar, it is: it is the recipe of the last wave of litigation against Big Tobacco.

Of course, in almost every respect except one, the case against tobacco is stronger. Tobacco has a stronger link to a group of deadly diseases. Nicotine is, under any definition, an addictive substance. Moreover, documents uncovered during the years of litigation against Big Tobacco prove that the industry lied about what they knew about the health dangers and addictiveness of cigarettes.

In part, this is because we know all there is to know about Big Tobacco, but little about Big Fat. Damning documents and other evidence might conceivably be unearthed for Big Fat, too - in the form of health studies, marketing materials that try to sell bigger and more fatty products, and the like. In part, this is because both are indeed movements - not just lawsuits.

Movements With Similar Roots: A Sociocultural Shift In America

Viewed this way, the movements against Big Tobacco and Big Fat share, in my opinion, the same social and political roots.

Remember that social support for the litigation against Big Tobacco was not present in America until the 1980's - long affect the health effects of smoking were known. When that support reached critical mass, it reflected a broader change in social attitudes about our consumer culture and lifestyle.

That change may be enough to support the launch of a serious wave of litigation against Big Fat, too. And even if the facts do not ultimately carry the cases forward to a plaintiff victory in the courtroom, the publicity may lead to quick settlements, or to related legislation.

The Media And Public As a Second Jury That Can Lead to A Win, Too

There are more ways to win a case than to win it in court. The legal campaign against Big Tobacco was argued on two fronts: one in the courtroom and the other in the media.

From a technical point of view, the legal claims against Big Tobacco had always been weak. The cigarette was not obviously a defectively designed product, and even if it were, the defense of consumer assumption of risk worked well with juries.

The introduction of fraud claims, however, gave the plaintiffs a weapon that was extremely effective outside the courtroom. Granted, Big Tobacco could argue, as a technical, legal matter, that no individual smoker could identify the specific lie about cigarettes upon which they had reasonably relied. (Reasonable reliance is a required element of a fraud claim.) Nevertheless, this defense inflicted tremendous damage on Big Tobacco's argument to the general public that smoking, no matter how dangerous, was a personal choice.

To see why this is so, one must think about the case against Big Tobacco from a psychological, not a technically legal point of view.

Here's the technical legal point of view: If cigarettes were dangerous and that fact was known by people who bought them, the law says that they assumed that risk, and many people would agree. If cigarettes were dangerous and the cigarette manufacturers lied about the fact but no one believed those lies, the law says that smokers were not injured by the lies because they did not rely on them.

But here, in contrast, is the psychological perspective: In the second situation, where the company lied, that fact is much more damning in the eyes of the jury and the public.

We may know that the consumer wasn't fooled by the lies of the manufacturer, and thus that he or she wasn't technically harmed by those lies. But regardless of that fact, we still feel that a manufacturer who lies is worse than one who simply makes a dangerous product available to people who foolishly choose to buy it.

Think, for instance, of a helmet manufacturer who offers lightweight helmets while admitting they are less safe but touting them as ensuring a more fun ride. Now think of one who lies and says they are just as safe as other helmets, though motorcyclists can see for themselves that it can't possibly be true. The two manufacturers may cause exactly the same number of accidents, but we believe the latter is more culpable - and more deserving of punishment.

Why the Fraud Allegations Against Big Tobacco Worked

In the 90s, creative lawyers decided to go after Big Tobacco not only for product liability, but also for fraud. By doing so, they were able to take advantage of the psychological phenomenon described above - by which we blame manufacturers for venal lies even if the lies do not fool savvy consumers, and want to punish them for those lies.

In court, Big Tobacco could argue that their lies were never believed by their intended audiences. But before the media and the public, as soon as the lies were proven, the reputational damage had been done. It not only reduced Big Tobacco's political capital, but it also hardened (subconsciously, perhaps) the attitudes of jurors and judges in the courtroom. Whether a factfinder emotionally wants to a punish a defendant is intimately related to whether he or she, in fact, does inflict the punishment.

"Harmless" Lies and Targeted Advertising Can Severely Blemish A Reputation

I think not. I believe the reason we fault even "harmless" lies is because we suspect, correctly, that the line between "belief" and "disbelief" is not as clear as the lawyers make it out to be in a trial. We also know that lies can become excuses for those who do not want to believe the truth - and fodder for argument for those who resist their loved ones' attempts to get them to quit.

For instance, I am sure that most smokers did not believe the CEOs of Big Tobacco when they testified before Congress that cigarettes were not addictive. And yet the fact of that testimony--along with untold other small denials and ameliorating messages--probably weakened the resolve of smokers to quit, and lessened the resistance of new smokers to begin.

Why Attacks on Targeted Advertising Work, Too

It was for similar reasons, I believe, that the accusation that Big Tobacco was targeting advertising to youths proved so damning in the public eye - indeed, in my opinion, the most effective of all the attacks. That accusation has not yet, on its own, proven to be the basis of a single legal judgment against Big Tobacco. But it still has enormous persuasive power.

The problem of youth advertising is a microcosm of the problem of cigarettes advertising overall. After all, why does society fear youth advertising of a powerfully habit-forming unhealthy substance children are constantly warned of the risks?

The reason, I believe, is that regardless of what 15 years olds may know about smoking (and they know almost as much as19 year olds), they cannot act on that knowledge. Fifteen year olds, that is, are psychologically incapable of weighing "rationally" the known risks of smoking against the social pressures supporting the habit.

Advertising just tips the balance in favor of smoking even more, even it not a single teen believes the factual misrepresentations of the tobacco industry. And our difficulty in weighing future risks correctly against current pleasures does not disappear, though it lessens, as we age.

Might Advertising Fraud Claims Against Big Fat Succeed?

At first glance, the potential of proving a record of "lying" by the fast food industry seems slight. But that might depend on how one defines the lies.

But even if Big Fat admits the health risks and simply claims consumers are well aware of them, the lies one might attribute to the industry might be more subtle. Alleged "lies" to consumers that were the subject of a 1983 suit brought by a public interest group against General Foods in California, for example, are instructive as to what claims the Big Fat plaintiffs might bring.

In the case, which was captioned Committee on Children's Television, Inc. v. General Foods, the plaintiffs alleged that the Saturday morning cartoon advertising for breakfast cereals "lied" to consumers (the children) by making certain promises. They alleged that the advertising promised that cereals that contained between 38%-50% their weight in sugar were nevertheless part of a "well-balanced" breakfast; that eating such cereals was equated with "fun" and "adventure"; and that "fruity" cereals actually contained fruit.

Ridiculous? The California Supreme Court didn't think so. It certified the case for a class action, although the suit never went to trial.

My point is that a theory under which youth advertising is a form of actionable fraud already exists. If the facts are there to support it, such a theory could be used against Big Fat, too. But the question is whether the facts are there: Has fast food marketing played as fast and loose with its terms as the breakfast food companies were alleged to have done?

Can Advertising Create Addiction Through A Habituation Effect?

Many people think that the key to putting an end to cigarettes in our society is getting Big Tobacco to admit that nicotine is addictive and regulating it like a drug. However, I think that is a very naive point of view.

Even the FDA had to admit, at the height of its campaign against Big Tobacco, that the term "addictive" has no precise definition, and can be given meanings for different purposes. Is nicotine addictive? Different definitions provide different answers.

One well known criterion is whether one needs a continuously increasing dosage of the substance - not necessarily the case with nicotine, as many smokers can stick with a pack-a-day habit. A better criterion, in my view, is whether the substance, in the environment in which it is used, produces unhealthful consequences that the individual with a desire to stop them, nevertheless cannot stop.

Strikingly, advertising itself, under this definition may be able to produce the effect of addiction - especially if it is begun at a young age and is then supported by more advertising to adults. If advertising habituates smokers to smoking throughout their lives, they may genuinely not be able to stop, even if they want to.

The problem is that this deep and difficult truth about our society - the truth that advertising creates demand, and can thus itself create harm - is not something for which one can or should be able to sue in tort. It is something which we must confront at a social and political level. But until that happens, class actions, it seems, will the only place discussion over advertising, and the addictions it can foster, will occur.

Anthony J. Sebok, a FindLaw columnist, is a Professor of Law at Brooklyn Law School, where he teaches Torts, among other subjects.

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