Getting Fat From the War on Capitalism

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Socialists of all stripes have long waged an ideological war against personal responsibility, for if it is true that adults cannot and should not be held responsible for their own decisions, then the argument can be made that the state should step in and control virtually all aspects of peoples’ lives. If people can’t make sensible decisions regarding the feeding and education of their children, the state should step in. If they can’t prepare for their own old age, the state should do it for them. If they can’t find suitable employment, the state should be "an employer of last resort"; and on and on.

In recent years the intellectual class that helps to prop up the state (in return for employment, money, prestige, research grants, and other favors) has figured out a recipe for destroying two of the most important impediments to totalitarian statism — personal responsibility and the rule of law — in its pursuit of totalitarian control over everyone’s lives. Its first victim was the tobacco industry.

Everyone has known for decades, if not centuries, that cigarette smoking is hazardous to health. It has been common knowledge for decades that smoking dramatically increases the risks of lung cancer, lung disease, heart disease, and other ailments. Although smoking is generally regarded as addictive, literally tens of millions of Americans have kicked the habit because of these well-known health concerns. There are more former smokers in America than smokers.

This is why, for some forty years, juries did not award monetary damages to diseased smokers who sued the tobacco companies. Jurors understood that adult smokers recognize the health risks of their habit, are willing to accept them, and should take responsibility for the consequences.

But "public health activists," a part of the statist intellectual class that is either employed by government or by government-subsidized nonprofit groups, waged a successful, decades-long crusade to demonize the tobacco companies. As a result, starting in the mid 1990s, various state legislatures passed laws that essentially declared the notion of personal responsibility to be defunct in cases where smokers sue the manufacturers of cigarettes.

Florida was the first state to enact such legislation (See Robert A. Levy, "Tobacco Medicaid Litigation: Snuffing Out the Rule of Law," Cato Institute Policy Analysis no. 275, June 20, 1997). As legal scholar Robert A. Levy has pointed out, Florida’s "Medicaid Third-Party Liability Act" abolished the notion that defendants should be able to raise a defense. Tobacco companies were prohibited from defending themselves by arguing in court that smokers are aware of the health risks of cigarette smoking. According to the law, "assumption of risk" and "all other affirmative defenses normally available to a liable third party are to be abrogated," writes Levy.

The Florida law also threw out another age-old tenet of Anglo-Saxon jurisprudence: the idea that harm against an individual must be proven before that individual can be awarded damages in a liability case. Instead, "statistical analysis" can be used to "prove" that a particular consumer product "harmed" the state budget!

Of course, one can never "prove" anything with statistics; one can only speak in terms of probabilities. More ominously, the law stipulated that if a mere statistical correlation (forget about even discussing causation) can be found between the incidence of smoking-related diseases and state Medicaid expenditures, then the state can sue the tobacco companies to "recover" these expenses (presumably, Medicaid paid for part of the hospital expenses of lung cancer victims).

No individual victim need be identified; the state can "seek recovery of payments" based on a "class of victims;" there is no statute of limitations; and private attorneys can be paid up to 30 percent in contingency fees on such lawsuits.

Soon after Florida passed this rule-of-law-destroying legislation, several other states, including Maryland, followed suit. The legal deck was stacked against the demonized tobacco companies, and it was stacked by lawyers, who dominate all state legislatures, and who are supposed to be supportive of the rule of law. So much for that myth. When offered the choice of plundering a private corporation for political gain and defending the rule of law, plunder will always be chosen by the American political class.

Trial lawyers benefited handsomely from the $235 billion, gun-under-the-table "settlement" with the American tobacco companies. In Maryland, Peter Angelos was promised one fourth of the state’s $4 billion settlement for very minimal legal work, but eventually settled for a mere $150 million. Trial lawyers in dozens of other states pocketed tens of millions of dollars for very little legal work; such work was not necessary once legislation was put in place that would turn tobacco lawsuits into kangaroo courts or show trials.

So the political die has been cast. In principle, any manufacturer of any product can now be fair game for the trial lawyer/state legislator corporate extortion cabal. Indeed, almost as soon as the tobacco "settlement" was completed the news media began reporting on a new governmental "war on fat," with "Big Food" portrayed as the new villain. The statist intellectual class began writing articles and books demonizing the fast food industry (i.e., "Fast Food Nation" by Eric Schlosser), just as it had earlier demonized the tobacco industry. There is even a movie entitled "Supersize Me," about a man who (surprise!) gets fat after eating three meals a day of the most fattening menu items at McDonald’s for a month, while giving up exercise at the same time. A "fat summit" has been held by "public health activists" and their trial lawyer friends in Washington, D.C.

Trial lawyers have filed lawsuits against McDonald’s, Wendy’s, Kentucky Fried Chicken, Burger King, and other fast food chains. They have represented "victims" like one Gregory Rhymes, a fifteen-year-old boy who was five feet six inches tall and tipped the scales at more than 400 pounds. Rhymes said he ate at McDonald’s several times a day (Big Macs, fries and chocolate shakes are his preferred choices), normally "supersizing" his meals. His lawyer, Samuel Hirsch, said that Rhymes and his other clients "are too dumb to know what’s good for them."

A Washington state man has even sued the dairy industry and the Safeway grocery chain, claiming that his lifelong habit of drinking fresh milk was responsible for his clogged arteries.

To increase the likelihood that the "war on fat" will succeed, the federal government introduced a new measure of "obesity" in recent years that will allow it to exaggerate the actual number of obese people in the U.S. The "body mass index" is a measure of one’s weight that does not distinguish between fat and muscle. Consequently, many physically fit Americans — including quite a few professional athletes — are "officially" obese according to the U.S. government. This index was the work of the rotund former U.S. Surgeon General and Hillary Clinton protégé, C. Everett Koop.

Armed with this new information, and with the undeniable fact that obesity leads to health problems, many of the same "public health activists" who crusaded against tobacco (but are mostly silent about smoking now since they got their cash) are urging lawsuits against the fast food industry and calling for "fat taxes," with part of the revenue to be earmarked to "public health organizations" in which they are employed.

Many of the nonprofit sector public health organizations have received some of the tobacco settlement largesse, courtesy of donations/investments by trial lawyers, and are using these funds to wage their "war on fat." As antismoking activist John Banzhaf of George Washington University Law School has (under)stated, "People are wondering if tactics used against the tobacco industry very successfully . . . could be used against the problem of obesity." Professor Marion Nestle of New York University concurred, saying "It might be time to follow the lead of the legal tactics that smoked out Big Tobacco."

WorldNetDaily writer Joel Miller predicts how the War on Fat will proceed:

Ten years from now, spokesmen from Nabisco, Frito-Lay, McDonald’s and Hershey are all going to be testifying in congressional hearings, u2018No, we did not know that fat was addictive. No, we did not deliberately manipulate fat levels to hoop unwary consumers of our products.’ And then 10 years later, Congress and the u2018fat industry’ will reach an u2018Historic Fat Accord,’ like the one reached with tobacco.

This may sound far-fetched, but then so did the notion that smokers do not recognize the health risks of smoking just a few years ago. Or that someone would sue McDonald’s for becoming fat.

The "War on Fat" is part and parcel of the ongoing war on capitalism that will continue to cripple the American economy and destroy our freedom if it continues. As Ludwig von Mises wrote in Human Action (Scholar’s Edition, pp. 728—729):

[O]nce the principle is admitted that it is the duty of government to protect the individual against his own foolishness, no serious objections can be advanced against further encroachments. A good case could be made out in favor of prohibition of alcohol and nicotine. And why limit the government’s benevolent providence to the protection of the individual’s body only? Is not the harm a man may inflict on his mind and soul even more disastrous than any bodily evils? Why not prevent him from reading bad books and seeing bad plays, from looking at bad paintings and statues and from hearing bad music? The mischief done by bad ideologies, surely, is much more pernicious, both for the individual and for the whole society, than that done by narcotic drugs.

Mises further pointed out that these are not merely "imaginary specters," for "no paternal government . . . ever shrank from regimenting its subjects’ minds, beliefs, and opinions." This of course has been the main task of the government school monopoly in America for more than a century.

And, "If one abolishes man’s freedom to determine his own consumption, one takes all freedoms away." Our neo-prohibitionists may seem like mere nannies, busybodies and petty tyrants, but with the help of governments and subsidized by wealthy trial lawyers they "unwittingly support the case of censorship, inquisition, religious intolerance, and the persecution of dissenters."

Thomas J. DiLorenzo [send him mail] is the author of The Real Lincoln: A New Look at Abraham Lincoln, His Agenda, and an Unnecessary War, (Three Rivers Press/Random House). His latest book is How Capitalism Saved America: The Untold Story of Our Country’s History, from the Pilgrims to the Present (Crown Forum/Random House, August 2004).

Thomas DiLorenzo Archives at LRC

Thomas DiLorenzo Archives at Mises.org

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