Fast Food and Federalism

Lobbyists for the fast food industry are making headway in the campaign to ban obesity lawsuits. Earlier this month the House of Representatives passed the Personal Responsibility in Food Consumption Act. The Act would prohibit suits in state and federal court unless the plaintiff can demonstrate that at the time of the sale, the burger and fries did not comply with applicable statutory and regulatory requirements. Similar legislation is pending in the Senate.

The impetus behind the legislation is the rising cost of liability insurance. With the assault on the tobacco companies complete, the trial lawyers are searching for additional victims. And considering the growing rate of obesity in the United States, the deep pockets of the fast food industry are tempting targets.

While the Food Consumption Act is obviously an effort to strike out at the trial lawyers, a better punishment might be keep the status quo and leave the trial lawyers stuck with their clients. Take as an example Caesar Barber, who retained an attorney in 2002 to file suit against McDonald's, Burger King, Wendy's, and Kentucky Fried Chicken. Barber blames his 272 pounds, diabetes, and high blood pressure on eating establishments that had the gall to serve him the food he ordered. "They said u2018100 percent beef.' I thought that it meant it was good for you," explained Barber. "Those people in the advertisement don't really tell you what's in the food. It's all fat, fat, and more fat. Now I'm obese."

It's hard to feel sorry for the likes of Cecil. But it is even harder to feel sorry for the lawyers filing suit on behalf of the Cecils of the world. Just imagine the incessant calls from the fast food plaintiffs wondering each day whether their lottery checks, er uhh, "settlement proceeds" have come in yet.

Although the pending legislation is intended to combat frivolous litigation, the Food Consumption Act is not without its own blemishes. Unfortunately, the Act preempts the proper functioning of our federal system. The Framers of the Constitution believed that self-government is most effective when exercised in bodies close to the people. Realizing that the national government could not have a working knowledge of the myriad of local circumstances, the Framers delegated to the national government only a few defined powers. The lion's share of governmental power remained with state and local government. According to Alexander Hamilton in Federalist No. 17, it is "the province of the state governments" to tend to "the ordinary administration of criminal and civil justice." In other words, tort law, such as is implicated with the obesity suits, is a matter remaining with the states.

The Framers understood the great benefit derived from the states serving as laboratories of democracy. For example, if South Carolina decided that legislation was needed to curb suits against the fast food industry, the other 49 states could observe the effects of this legislation on the health of the population, the cost of medical care, and the profitability of the fast food restaurants in South Carolina. If the legislation proved to be efficacious, the other states might choose to emulate it, or adopt laws taking into account any problems surfacing in South Carolina. With the proposed national Food Consumption Act, which is a one-size-fits-all remedy, the House of Representatives rolls the dice for all 284 million people in the United States.

While the trial lawyers do appear irresponsible with their attacks on the likes of McDonald's, Congress is even more irresponsible in preempting the workings of the federal system. The ability of the states to experiment with various legislative schemes is a strength of our system. The Food Consumption Act is but the latest example of congressional overeating when it comes to power. Perhaps Congress, like Cecil, should go on a diet.

March 27, 2004

The Best of William J. Watkins, Jr.