Fast food or fat food: food manufacturer liability for obesity: before the courts and juries extend liability beyond reasonable limits, proactive legislation can balance rights of claimants and the food industry.

• Author: Vroom, Amy J.

OBESITY contributes to the death of 300,000 people a year in the United States; only the use of tobacco causes more preventable deaths. (1) Overweight or obese persons are alleged to be at a heightened risk for a variety of serious and life-threatening illnesses. (2) Obesity also is known to aggravate many pre-existing conditions, such as hypertension and elevated cholesterol. (3) In 2000, roughly $117 billion went to treat the health problems of overweight or obese people, almost twice the fast-food industry's total revenues. As a result, in 2001, the U.S. Surgeon General, David Satcher, issued a "call to action" on obesity, stating that "there is much that communities can and should do to address these problems." (4)

Building on this foundation, legislators, regulators, nutritionists, government and consumer activists, and the plaintiffs' bar have launched an anti-fat movement similar to the national anti-smoking movement initiated by the U.S. Surgeon General Luther L. Terry in 1964. The most controversial component of this campaign is playing out in America's courtrooms, led by George Washington University law professor John F. Banzhaf III, who was a key figure in the tobacco litigation. In recent years, six lawsuits have tested the theory that those who make or serve fattening foods should be held legally liable for making people fat. (5) Three were settled out of court. (6) One was dismissed in the federal court for the Southern District of New York for failure to meet heightened pleading standards, with leave to amend. (7) More are pending.

To evaluate the viability of extending liability to food manufacturers for obesity, particularly fast-food purveyors, one must examine traditional claims brought against those manufacturers by consumers for defective food products and analyze these claims in the light of the tobacco litigation. There are several flaws in reasoning that food claims are analogous to tobacco claims. Litigation will be problematic if the tobacco logic is extended and applied to food manufacturers. To meet these problems, this article proposes a model act that imposes heightened pleading requirements of obesity plaintiffs to preserve judicial economy while adequately protecting the interests and rights of consumers.

THE LITIGATION MENU

1. Traditional Liability

   Plaintiffs traditionally have sought recovery from food manufacturers for defective foods on theories in products liability, tort, and commercial law.

   1. Products Liability

   A product is defective in products liability law when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings. More often than not, defective food cases involve claims of manufacturing defects; less frequently, they involve claims of defects in design or failure to warn.

   Section 2 of the Restatement (Third) of Torts: Products Liability, states:

   A product:

   (a) contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product;

   (b) is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe;

   (c) is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe.

   First, manufacturing defect plaintiffs in foodstuff cases challenge a single product unit, claiming a manufacturer has made a mistake that results from some fault in the production process whereby a particular product mistakenly deviates from the manufacturer's own "blueprint" specifications of the intended and correct design. (8) Courts impose strict liability based on Section 402A of the Restatement (Second) of Torts for manufacturing defects in food, but, unlike as with other products, courts also look to consumer expectations within the relevant context of consumption to determine whether there is a defect. (9) Section 7 of the Third Restatement provides that under Section 2(a), "a harm-causing ingredient of the food product constitutes a detect if a reasonable consumer would not expect the food product to contain that ingredient."

   Second, design defect plaintiffs allege that the concept behind a product is fundamentally flawed, and contrary to the situation in manufacturing defect cases, they challenge the integrity of the manufacturer's entire product line. Defective design cases require courts to use a risk-utility test, rather than strict liability, to second-guess the manufacturer's engineering and economic analyses of consumer market preferences and resource allocations. Design defect cases in food law became popular with the advent of the hot coffee cases, which asserted claims of defective design (temperature too high) or failure to warn (inadequate warning of the high temperature and its capacity to burn). (10)

   Third, failure to warn cases in food law generally are those in which manufacturers have failed to warn consumers of ingredients in certain types of food that may cause allergic reactions. (11) This duty is imposed even though the risk normally is only to persons with cirrhosis of the liver, hepatitis, diabetes, high iron content, or suppressed immune systems, conditions which diminish the ability of the body to destroy the bacteria. (12)

2. Current Liability

   1. Negligence, Misrepresentation, Fraud

      Although products liability claims are the most common in food cases, traditional tort claims also are also used--negligence, misrepresentation, fraud. Of these three, negligence claims are based on allegations that the goods that are imminently dangerous or defective. A plaintiff may prove negligence through a violation of pure food legislation, a traditional negligence claim, or res ipsa loquitor. (13)

      First, violation of a pure food act is the easiest way for a plaintiff to prove negligence, because in most states, this violation amounts to negligence per se. Second, in the absence of state and federal legislation, it is difficult for plaintiffs to prove that a purveyor of food was negligent under a "traditional" theory, unless a plaintiff can produce direct evidence of the defendant's fault or unless a court will allow an inference of negligence from the presence of a defect in the food. (14) If a plaintiff cannot produce direct evidence of negligence, but the circumstantial evidence leads to inferences that the food would not have been defective but for the negligence of a manufacturer or distributor, a plaintiff can invoke the doctrine of res ipsa loquitor in most jurisdictions. (15)

      The second tort cause of action in food cases is express warranty, or misrepresentation, although these claims are uncommon in food cases. A plaintiff may recover, however, based on a seller's false affirmations of fact under Section 2-313.64 of the Uniform Commercial Code (UCC). To recover under the theory of misrepresentation, a plaintiff must prove a breach of the warranty itself, resulting in proximate injury to him or her: the plaintiff does not have to prove that the product is defective.

      Third, to prove consumer fraud or unfair/deceptive commercial practices in a state where consumer protection laws are based on the Federal Trade Commission Act, a plaintiff must show: (1) that the act, practice or advertisement was consumer-oriented; (2) that it was misleading in a material respect and (3) that the plaintiff was injured as a result. (16) The standard for whether an act or practice is misleading is objective, requiring a showing that a reasonable consumer would have been misled by the defendant's conduct. (17)

   2. Commercial Law

      Plaintiffs asserting commercial claims have a distinct advantage over those asserting products liability and tort claims, because in a breach of warranty claim, it is not necessary to prove the defendant's fault. (18) American courts imported from England the concept of a common law warranty of the wholesomeness of food. However, the requirement of privity of contract remained a bar for extending liability to food manufacturers until the 1900s, when the special food warranty in tort was extended to remote consumers. (19)

      The implied warranty for merchantability, or wholesomeness, set out by UCC [section] 2-314, arises when the seller is a merchant who holds himself out as having knowledge or skill peculiar to the practices or goods involved, and does not apply to an occasional seller. Section 2-314 is not intended to exhaust the description of the implied warranty of merchantability; instead, it is meant to set out the least acceptable standards for goods, with an emphasis on "fit for the ordinary purposes for which...