WhenMcDonald’sCorp.announced earlier this month that it would switch cooking oils to reduce the amount of unhealthy fat in its French fries, I decided to call John Banzhaf. I hadn’t spoken to him in several years, but I still remembered our first interview, in the early 1990’s.
Mr. Banzhaf was-and still is-an entrepreneur of litigation, a trial lawyer’s trial lawyer, and a capitalist’s worst nightmare. From his office at George Washington University, where he teaches a course called “Legal Activism,” Mr. Banzhaf helped orchestrate the campaign of lawsuits that eventually gutted the U.S. tobacco industry.
Way back in the early 1990’s, Americans could still smoke pretty much wherever they wished, and the industry was still aggressively resisting, for example, government regulation of smoking in privately owned businesses. Mr. Banzhaf told me then that the industry’s defensive efforts were doomed.
“Consider fast-food restaurants,” he said with a gleam in his eye. “They go to great lengths to lure kids into their stores. You see all these kids in the smoking section; now what would happen if one of them had an asthmatic attack? A lawsuit could be brought on behalf of the child, and the restaurant and its owner would be liable for very serious damages.”
At the time, Mr. Banzhaf had already served notice to the fast-food chains that he was poised to bring such a suit. Whether the suit ever materialized, he said then, didn’t make any difference. The threat would be enough.
“Within two years,” he predicted, “you won’t be able to smoke in any fast-food restaurant.”
I told him he was crazy.
“No,” he said, “I’m right.”
And he was.
Having gained most of their objectives in the tobacco wars, Mr. Banzhaf and his fellow litigator-reformers have now turned their attention to fatty fast food. And once again, their target industry is pursuing a strategy of incremental, pre-emptive surrender.
“I don’t think there’s any question,” Mr. Banzhaf told me when I called him after the McDonald’s announcement, “that McDonald’s move is in response to the pressure they’re feeling from litigation.”
Several lawsuits have already been filed involving fast food and fat. The most celebrated case was filed in July on behalf of a New York man named Caesar Barber, who accused four fast-food chains of luring him into a life of obesity and all the ailments that fat flesh is heir to. Mr. Barber’s lawsuit became Jay Leno fodder, however, and collapsed in an eruption of national ridicule.
For the litigators, it was a setback easily overcome. The Barber case, Mr. Banzhaf told me, was superseded on Aug. 22 by a new suit. “Barber was an adult,” Mr. Banzhaf says, “and people could say, ‘Well, he should be held responsible for the consequences of his own actions.'”
The new suit, however, circumvents any such antique notions of personal responsibility. It does so by employing the most powerful technique of modern reformers and litigators: to exploit “the children.”
Plaintiffs in the new action are two underage girls from the Bronx whose obesity has led to poor health. They and their parents blame McDonald’s, which-in the bloodless terms of the complaint-“enticed the Plaintiffs to consume their food products through the use of promotional incentives and marketing directly to children, without properly and adequately disclosing the health effects thereof.”
“The argument is much the same as the one we used against tobacco,” Mr. Banzhaf says.
The groundwork for an anti-tobacco-like campaign against fast food has already been laid. As with tobacco, the litigators have in hand a helpful report from the U.S. Surgeon General, issued last December, that recasts the problem of bad eating habits in terms of public health. It even imports the term “epidemic” from the science of epidemiology and misapplies it to what is more realistically understood as a widespread personal weakness.
Best of all, from the litigators’ point of view, the Surgeon General calculated the vaguely defined “economic costs” of obesity. (The figure is $117 billion a year.) This further removes the notion of personal responsibility from the debate-since I, through higher insurance premiums, must share in the costs of your decision to eat badly.
“Some argue that there is a right to voluntarily engage in unhealthy behaviors,” Mr. Banzhaf has written, “but there is certainly no right to require others to subsidize the huge costs.”
Now this concept of social costs, carried to its logical end, would shrink the realm of private decision-making into nonexistence. Almost any personal decision can be shown to have wider social and economic effects. But the litigators don’t want to trace their arguments to that logical end-at least for now.
What do they want, then?
Under the pressure of litigation, and eventually from legislators, Mr. Banzhaf says that fast-food companies could voluntarily charge “substantially” more for their high-fat meals. Food might come packaged with warnings similar to those found on cigarette packs. The fast-food companies might be expected to drop their opposition to a so-called fat tax. They would agree to provide “healthful” alternative meals, as defined by plaintiffs’ lawyers, or face the litigators’ wrath.
Mr. Banzhaf still thinks big, though sophisticated observers will scoff at the possibility that the anti-tobacco strategy will work on fast food. I suppose you could call him crazy. But I won’t. I’ve tried that before.
UBS Wows Guinness
The man with the world’s longest fingernails and the woman with the most tattoos have a new companion: UBS A.G.
Guinness World Records announced that the securities unit of Switzerland’s biggest bank, UBS Warburg, has the record for the largest single trading floor in the world. Guinness, which never had a trading-floor record before, measured UBS at 93,070 square feet, or about the size of two football fields.
Guinness counted 1,400 traders and 5,000 computers executing about 126,000 transactions daily, said Gabe Bevilacqua, senior license manager at Guinness. The UBS item may be published next September in the 50th-anniversary edition of the record book.
Guinness’ measurement of the UBS trading floor in Stamford, Conn., is smaller than the 103,000 square feet recorded by the bank. That’s because UBS measured the perimeter of the room, while Guinness measured the space where the computers and desks are located, said Kris Kagel, the UBS Warburg spokesman who applied for the record listing in April through the company’s Web site. UBS received its Guinness certificate last week, Mr. Kagel said.
Guinness has between 40,000 and 60,000 records in its database, printing about one in 10 in its record books. For the record, the longest fingernails are 20 feet, 2.25 inches, all on one hand, and the world’s most tattooed women have 95 percent of their bodies covered.
-Jennifer Ryan
-Edited by Karina Lahni
