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Is It More Than Just A Stunt?

Wednesday, Aug. 14, 2002

This column is Part One of a two-part series by Professor Sebok on the "Big Fat" Class Action lawsuit against fast food companies. - Ed.

It is very easy to dismiss the "Big Fat" class action lawsuit filed by Caesar Barber on July 23 as a stunt. The 56-year-old Bronx resident claims he didn't realize that fast food hamburgers were unhealthy, and blames four companies--McDonald's, Wendy's, Kentucky Fried Chicken, and Burger King - for selling fatty food and failing to warn consumers.

Commentary about the lawsuit has generally come from two camps. Some observers merely scoff at the suit, predicting that the legal system will operate as it should and a judge will swiftly dismiss it. Others, adopting the tone of cynical veterans, predict that the suit, although meritless, will result in some sort of settlement - as occurred in other recent high-profile class action suits of dubious legal merit, such as the Big Tobacco and the Holocaust slave labor cases.

For these reasons, I feel comfortable making a few tentative judgments about the foundations of the suit.

Assessing the Suit's Product Liability Claims

First of all, the complaint sets out a series of allegations that suggest that the suit arises under New York State products liability law. It alleges, for example, that the defendants manufactured and sold products that were high in fat and salt and that these products cause heart disease and obesity.

In the typical products liability suit, the plaintiff alleges that the defendant's product was defective because it was not manufactured as it was supposed to have been. If there was no manufacturing defect, the plaintiff may claim a defective design. Alternatively, if there is no defect of either type, the plaintiff may allege a failure to warn about some non-obvious risk inherent in the product. (Of course, the plaintiff may also claim any two of these, or all three).

Barber is not alleging that there was a manufacturing defect in the Big Macs (and other fast food products) that he bought. That is, he is not claiming that Big Fat failed to construct their meals carefully or properly. Big Macs do what McDonalds designs them to do--bring diners into contact with tasty (sweet and fatty), if unhealthy, food. Thus, his claim must be based on either a design defect, or a failure to warn.

A Weak "Failure to Warn" Claim Given That Fast Food's Risks Are Well-Known

Barber's warning claim must be something like this: Fast food causes heart disease; nothing on the packaging or at the restaurants told me that; they should have warned me of the non-obvious risk that comes with eating their food; therefore they should be found strictly liable for selling a defective product.

This argument is pretty weak. The risks of eating foods that are high in fat are well known, even by laypeople who lack a sophisticated understanding of the relationship between diet and health.

But didn't this very argument work with cigarettes, despite the same drawback? Juries must have assumed that everyone knew smoking was dangerous. Yet they still allowed smokers to collect huge damages against Big Tobacco, didn't they? Couldn't the same strategy work with Big Fat, as well?

First of all, very few juries have actually found in favor of smokers, despite years of litigation and some notoriously large verdicts and settlements. Second, no jury has clearly decided for a smoker on the basis of a failure to warn theory alone.

On the contrary, every case that went to a jury against Big Tobacco on a failure to warn theory was tried alongside a fraud claim. And the evidence relating to the fraud claim was quite damning: the jury heard about not only Big Tobacco's omissions, but also their alleged misrepresentations in advertisements, fake scientific research, and testimony to Congress. No wonder they rendered a verdict in the plaintiff's favor.

Could A Design Defect Claim Against Big Fat Have A Better Chance of Success?

What about defective design? Is it possible that fast food, even when well made, is simply a poorly designed product that could be made safer?

This is even more dubious than the failure to warn claim. Usually, in a design defect case, the plaintiff must prove that the product that injured him could have been designed more safely without destroying its original utility. This is called the "reasonable alternative design" test, and it has been adopted by the American Law Institute in its recent Restatement (Third) of Products Liability. A few states, such as California, cling to another test, called the "consumer expectations test," which asks whether the product's design included a risk that lay outside the reasonable consumer's expectations.

Under either test, it is not clear what Barber's argument would be. What "reasonable alternative design" could substitute for the Whopper or the french fry? And under the consumer expectations test, Barber's complaint fares even worse.

Why The Consumer Expectations Test Won't Help the Big Fat Plaintiff

In auto design cases, like the infamous Ford Pinto case, the consumer expectations test helps the plaintiff. Most consumers are not sophisticated about the trade-offs that go into a safety design choice. Accordingly, plaintiffs can often put forward persuasive evidence that consumers "expected" their car to survive a 30 mph rear-end collision or a rollover - and thus that the consumer expectations test is fulfilled.

Not so in the case of Big Fat. There, the consumer expectations test is unlikely to help the plaintiff. Consumers have fairly low expectations of the healthfulness of fast food; hence the popular moniker "junk food."

There is one highly speculative argument that Barber might make that comes from modern products liability law. The Third Restatement admits that there might be some products which cannot be designed more safely and which we do not think can be used without a high risk of injury, even if warnings are properly attached. The American Law Institute - in Section 2, comment e - says that such a product is defective because it has a manifestly unreasonable design.

The very notion that of a product which was defective in itself is the result of a revolution that occurred in products liability law in the 1980's and '90's. Earlier consumer advocates were concerned that society be compensated for the inevitable manufacturing defects that came with mass production. Later, they became concerned with ensuring that consumers were fully informed about the risks that they assumed when they bought products such as drugs and power tools. Finally - when consumer advocates realized that consumers were still buying well made, but dangerous, products even after being fully informed - they resorted to the idea that certain products are just too dangerous to be on the market.

The poster child of the manifestly unreasonable design is the cigarette. According to conventional wisdom, it has little social utility, it cannot be made safer, and people still smoke despite adequate warnings. One can easily map fast food onto the same formal model. But the problem with the Big Fat plaintiff's employing this category of liability is twofold.

First, only a handful of courts have attempted to make it part of their state law (and only New Jersey has accepted judicial experiments in this area of the tort law). In fact, despite the acres of trees that have gone into publishing academic works urging courts to find the cigarette a "manifestly unreasonable design," no court has yet done so.

Instead, liability against Big Tobacco has been based, really, on fraud allegations. And, as mentioned above, it is the damning evidence behind these allegations, of omissions and misrepresentations, that has likely inspired huge plaintiffs' verdicts.

Second, this new form of products liability smacks of judicial legislation. If a product, when well made, is nonetheless too dangerous to be consumed, even by people who are completely aware of its dangers, isn't it the job of the legislature to ban it?

Consider the drug Ecstasy. It is presumably illegal because legislators have determined that the risks of well-made Ecstasy covered with warnings are too great compared to its minor social utility. That decision has the merit of having been made by citizens, through a majority of their representatives - not by a single judge in a single courtroom, by virtue of a huge and perhaps bankrupting verdict against an Ecstasy manufacturer.

And yet, the wave of academic and legal advocacy promoting the idea that tort law should be used to drive certain products off the market is too large to ignore. This idea may be the true motivating force behind the Barber suit, as it seems to have been in the litigation against Big Tobacco - even if in documents the lawyers have been loath to say that that is what they really mean.

We need to think more carefully about why this social pressure to get rid of certain products exists. It is beginning to color how some judges and the media think about cases involving products with low social utility, yet it is arguably troubling since unelected judges, not the democratic process, may end up depleting our grocery store shelves and restaurants.

The place to begin, in thinking about this social transformation, is back at tobacco. It is well known that the case against Big Tobacco became a juggernaut around 1998. What is less well known is that until 1998 the usual products liability arguments against cigarettes were losers in most courtrooms (and still are, in many). The huge verdicts get huge attention; the losses, generally, do not.

So what changed in the mid to late '90's? The case against Big Tobacco morphed away from products liability towards two other theories. The first was that consumers could not have been adequately warned of, or aware of, the risks of smoking since the tobacco industry withheld information and, in some cases, lied. The second was that smokers were never in a position to weigh the warnings they received (even if they were truthful and adequate) because they were children when they began to smoke, and smoking is addictive so once they started, they could not stop.

These arguments were easy to make in the case of Big Tobacco because the factual record was replete with evidence of incredible efforts to manipulate public opinion (efforts that boomeranged once they came to light). But that is not the point.

The point is that the legal arguments that made the difference in the case against Big Tobacco formed a bridge between what anti-smoking activists wished they could argue, and what the law actually allowed them to argue.

Anti-smoking activists had argued for years that the only reason people smoke is that, at a young age, they were fooled into doing it by marketers and social pressure. But really good advertising is not in itself, a tort - and one can't sue "society" for pressuring kids to smoke.

So anti-smoking activists found a legal foothold that said almost the same thing, and they went with it. The result was that they achieved successes against Big Tobacco that had eluded them for decades.

Will the enemies of Big Fat learn from the Big Tobacco example? If that is their goal, they should take note of the failure of products liability litigation - and the success of claims of fraud and child advertising. Currently they may contend that a Big Mac is a manifestly unreasonable design. But they might be well advised to morph that contention into an argument about fraud and child advertising instead. (After all, what McDonald's commercial can you recall that omits children?). I will explore the options for that sort of strategy in my next column.

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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