‘Cheeseburger Bill’ Is High on Menu in Washington

Fears that overweight Americans will develop an appetite for litigation drove the House to pass a bill that would bar lawsuits by restaurant customers claiming burgers and French fries made them fat.

“Trial lawyers have said they’d target restaurants the way they’ve targeted the tobacco industry,” National Restaurant Assn. President Steven C. Anderson said.

No such flood of litigation has yet developed. Lawyers who follow the issue know of only one restaurant obesity suit, a 2003 claim by two New York teenagers against McDonald’s Corp.

But there are deeper reasons behind the campaign for the so-called cheeseburger bill, legal and industry observers say, including rising liability insurance rates.

Concern in Washington about lawsuits in general also is driving the bill, which cleared the House days before Congress also granted gun makers immunity from injury lawsuits.

Both are part of a larger effort by Republicans to shield certain industries from litigation. The president, for example, submitted a bill to Congress last week that would protect producers and distributors of emergency vaccines from injury suits except in cases of “willful misconduct.”

“There is a growing feeling that if this trend continues, every major industry would be immune” from lawsuits, said Jonathan Turley, a George Washington University law professor. A dozen other industries, such as those that make airplanes and weight-reduction products, could make the same arguments raised by gun makers and fast-food restaurants, he said.

The Personal Responsibility in Food Consumption Act, approved last month, would bar “lawsuits seeking to blame individual food and beverage producers for a person’s weight gain, obesity” or related health problems.

The Senate is considering a companion bill and President Bush already has promised to sign the legislation. A similar bill stalled last year.

Twenty-one states have passed similar bans. Sacramento lawmakers rejected one such bill this spring, but the proposed federal ban, sponsored by Rep. Ric Keller (R-Fla.), would apply in California and other states without bans in place.

Keller’s bill is “a complete waste of time,” said Linda Lipsen, a spokeswoman for the Assn. of Trial Lawyers of America. “Of all the problems there are ... this is really ludicrous.”

But industry officials point to a handful of suits over artery-clogging trans fats and nutrition labeling as a sign that obesity suits are a risk for restaurants.

These suits parallel rising complaints that fast-food chains are contributing to America’s expanding waistlines and health problems. Filmmaker Morgan Spurlock explored the issue in his 2004 documentary “Super Size Me,” which chronicled a month during which he ate only McDonald’s food.

Bryan Malenius, a spokesman for Keller, said the lawmaker also worried that one high-profile verdict “will open the floodgates to an awful lot of litigation.”

“We think the industry would ultimately be successful in these suits,” he said. “But we would rather have them not spend millions to defend them.”

John F. Banzhaf III, a professor at George Washington University Law School who is working with the plaintiffs’ lawyer in the McDonald’s obesity suit, said it was the only case that could be affected by the current version of the cheeseburger bill.

A federal appeals court reinstated the New York obesity lawsuit in January, overruling a District Court judge who had thrown out the case. The overweight teens, who said they ate at McDonald’s outlets in the Bronx three to five times a week, alleged that the chain failed to disclose that eating fattening foods might have an addictive effect on the brain.

Beyond fears of a wave of costly suits, the ban also reflects restaurants’ concern over a recent rise in liability insurance premiums.

Anderson of the National Restaurant Assn. said he was especially worried about the financial pressure those rate hikes presented to the 70% of U.S. eateries he characterized as small businesses.

Several factors, including “the rising tide of lawsuits across the country,” have driven up rates, said Claire Wilkinson, a vice president at the Insurance Institute of America, a trade group. But she did not know how much of the increase was attributed to possible obesity suits.

Wilkinson would not predict that rates would fall if the cheeseburger bill became law but noted that “whenever you have curbs on lawsuits, that will definitely have an improving effect on insurance premiums.”

Anderson, however, predicted that removing the threat of litigation would free the restaurant industry to “address the root causes of obesity” through public education campaigns.

Some fast-food chains have taken action on their own. Many have introduced more healthful menu items such as salads and fruit. And McDonald’s announced last month that it would add nutritional information to the packaging of most of its food items starting next year.

But health advocates are concerned that consumers would see that information only after they had bought their meals. Sen. Tom Harkin (D-Iowa) is pushing eateries to do more.

His bill, pending in the Senate, would require all large chain restaurants to display the nutritional content of food items on the menu or overhead board.

The goal, his spokeswoman said, is to “give consumers the information to make healthy choices.”

Banzhaf applauds that effort as “the next logical step,” and predicted that restaurants could “virtually immunize themselves from liability” by displaying the items’ fat and calorie content.