Reviewing the law reviews.

• Author: Youngdale, Elizabeth M.

Law Review Highlights:

In the aftermath of the tobacco litigation and settlement, a new type of consumer protection lawsuit has begun to make its way into the court system. The perceived success of tobacco litigation in correcting a public health danger has encouraged the filing of suits in an attempt to reap the same benefit in the ongoing struggle to fight the growing concern about obesity in the United States. Obesity claims--or threats of claims--against restaurants, food manufacturers, and even media outlets have become a new form of potential litigation. Two articles from the Food and Drug Law Journal examine this trend in consumer litigation.

In their article, Obesity, Food Marketing and Consumer Litigation: Threat or Opportunity, (1) Sarah Taylor Roller, Theodore Voorhees, and Ashley K. Lunkenheimer examine the effectiveness of litigation as a way to reduce the public health dangers that come from the obesity epidemic in the United States. The authors question the position advanced by some special interest groups that obesity-related consumer suits are the best means of effecting change in American public health. The article first examines the background and history of regulatory measures designed to improve advertising and labeling by restaurants and manufacturers. It then contrasts the effectiveness of those regulations with recent case examples to show that while threats of suits may result in quick fixes in individual cases, often even companies with good marketing practices are vulnerable to suits. While some special interest groups attempt to compare obesity lawsuits with tobacco litigation, the article explains that the two types of suits are quite different.

A second article, Not the Next Tobacco: Defenses to Obesity Claims, (2) by Joseph P. McMenamin and Andrea Tiglio examines these differences between tobacco and obesity litigation in more detail. The authors discuss two major ways in which trying to compare obesity suits with smoking litigation will fail. The first has to do with causation. With tobacco litigation, a fairly clear link exists between smoking and the health risks inherent in that habit. Medically, connecting cancer or emphysema to tobacco use poses little challenge. Connecting a food manufacturer or restaurant to the medical conditions that come with being overweight is much more problematic because obesity is not caused by one type of food or even one type of behavior. A second major difference is the fact that tobacco has an addictive quality that most would agree food does not. While there are certainly those who would argue that people can become "food addicts," food itself does not possess addictive properties. (3) Unlike tobacco, food is necessary to life and relying on an addiction theory to prove liability will not be a tenable argument. The authors conclude that these two distinctions will prevent obesity claims from being as successful as the tobacco litigation.

The following list is a selective bibliography of current law review literature thought to be of interest to civil defense counsel

U.S. and International

Damages

Tyler J. Bowles, Damages Under Wrongful Death Statutes: The Relevancy of a Survivor's Nation of Residency, J. LEGAL ECON., September 2006 at 65.

Ralph Cunnington, Should Punitive Damages Be Part of the Judicial Arsenal in Contract Cases?, 26 LEGAL STUDS. 369 (2006).

Ryan T. Emery, Comment, Unwise and Unnecessary." Statutory Caps on Non-Economic Damages in Medical Malpractice Cases and the Appellate Review Alternative, 69 ALB. L. REV. 913 (2006).

H.E. Frech III, et al., An Economic Assessment of Damage Caps in Medical Malpractice Litigation Imposed by State Laws and the Implications for Federal Policy and Law, 16 HEALTH MATRIX 693 (2006).

John Hartshorne, Damages for Contractual Mental Distress after Farley v. Skinner, 22 J. CONT. L. 118 (2006).

Mitsuo Matsushita & Aya Lino, The Blocking Legislation as a Countermeasure to the U.S. Anti-Dumping Act of 1916." A Comparative Analysis of the EC and Japanese Damage Recovery Legislation, 40 J. WORLD TRADE 753 (2006).

Philip L. Merkel, Pain and Suffering Damages at Mid-Twentieth Century." A Retrospective View of the Problem and the Legal Academy's First Responses, 34 CAP. U. L. REV. 545 (2006).

Gerald Ng, The Onus of Proof in a Claim for Reliance Damages for...