Photo: Julie Turner (flickr)
A group of lawyers is waging a campaign to force food companies to pony up for their share of the financial burden obesity costs taxpayers. Paul McDonald, an attorney with the Chicago-based firm Valorem Law Group, is urging 16 state attorneys general to start laying the legal groundwork.
In response to email questions, McDonald answered with a statement that he asked to be posted in its entirety, to avoid misrepresentation.
“I believe that our obesity problem is partly due to personal responsibility. But I also do not believe that certain food manufacturers bear zero responsibility. I propose that whatever level of responsibility some food manufacturers bear—determined based upon investigation and evidence, not speculation—is their fair share of reimbursement owed to states obligated to treat obesity-related illnesses under Medicaid. Currently, taxpayers are bearing 100 percent of the cost, amounting to tens of billions, paid for by higher state taxes, reduced state services, or both. I do not think this is sustainable, or fair.”
Mcdonald told WBUR’s On Point that states shouldn’t file a lawsuit right away, but he’s encouraging research and investigation to gather evidence for possible cases.
The campaign has been compared to the fight against tobacco companies that resulted in massive settlements for states in the mid-1990s. But analysts—and food industry reps—say that comparison is broken.
While tobacco lawsuits were aimed at a limited field of four top manufacturers in the industry, food companies form a much broader target, with many more producers in play. The whole concept of a “Big Food” target, the critics argue, is unworkable. Though some research supports the possibility of behavioral addiction to food ingredients like sugar, salt and fat, the science isn’t settled.
Stephen Gardner, the director of litigation for the Center for Science in the Public Interest and a longtime consumer advocate, also sees big stumbling blocks ahead.
Though he emphatically agrees with McDonald that the food industry bears responsibility for skyrocketing obesity, he says suing companies to recover related Medicaid costs (right now) is bound to fail.
“I think it’s a great idea. I don’t think we’re currently at a stage where it’s going to succeed,” Gardner says. “We’re in the infancy of this litigation. We’re [in a similar stage as] tobacco lawsuits in the ’50s and ’60s.”
He’s concerned that filing such a lawsuit too early could even do more harm than good.
“It’s asking the AGs right now to go from zero to 60, because there’s very little AG activity on food at all,” Gardner says. “Not bringing a case is better than bringing a case, losing it, and setting a bad rule of law that the next case has to fight against.”
He adds that the chances of winning have grown slimmer since two pro-business Supreme Court appointments in 2006. He cites a 2010 study that found 61 percent of decisions under Chief Justice Roberts favored business, compared to 47 percent under Chief Justice Warren Burger’s court from 1969 to 1986, or 51 percent under Chief Justice William Rehnquist.