Can I get a lawsuit with that? Photographer: Jordan Siemens via Getty Images

Can Lawyers Beat Big Food? Fat Chance

Megan McArdle is a Bloomberg View columnist. She wrote for the Daily Beast, Newsweek, the Atlantic and the Economist and founded the blog Asymmetrical Information. She is the author of "“The Up Side of Down: Why Failing Well Is the Key to Success.”
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One of the very first things I ever wrote as a journalist was an article on whether we could sue fast-food companies for making us fat, the way people sued tobacco companies. (The conclusion I reached: You can file a lawsuit over anything, but that doesn't mean you're likely to win. The challenges facing such a lawsuit are probably overwhelming.) Right on schedule, a few months after I wrote the piece, someone filed such a lawsuit, and it was quickly dismissed.

Verily it is written that there is nothing new under the sun. Last week, almost a dozen years after I wrote that article, Politico reported that lawyers are pitching the attorneys general in 16 states with the idea of a massive lawsuit modeled on the one that ultimately brought the tobacco industry to heel:

"There are plenty of naysayers, just as there were in 1994 when Mike Moore, Mississippi's attorney general, famously suggested suing the tobacco industry. But a number of nutrition and legal experts think a similar strategy could be applied on the food front -- especially as obesity-related diseases have surpassed smoking as a major driver of health care costs."

But don't start stockpiling the Ho-Hos just yet. As in 2002, the lawyers are apt to find that the challenges of suing tobacco companies, daunting as they were, will pale in comparison to the challenges of taking on the food companies.

For starters, there's what legal experts call the "empty chair" problem. Smokers are famously, intensely brand-loyal, which means that if you're a Camel smoker, it's pretty easy to figure out who to sue over your cancer. But unless you've actually been living Morgan Spurlock's experiment in which you eat nothing but McDonald's, it's hard to win an obesity lawsuit, because for every company you sue, there are dozens of empty chairs at the defendant's table -- folks who gave you unhealthy stuff to eat. These include sources as varied as the hole-in-the-wall buffet restaurant at your local shopping center to every grandmother providing a potluck dish for the church social. Your own mother should probably be in the dock, too; who fed you cookies after school, huh? Getting damages under such conditions is very difficult.

The lawyers presumably want to make a market-share argument and bypass issues with any particular defendant. But market share of what? Does the sugar company have to pay because they sold you the stuff you used to make all those delicious pound cakes? Your high school cafeteria? Companies that make and sell cheese, white flour and deep fryers? Tobacco companies make a handful of products, and the one that we're really concerned with -- cigarettes -- has extremely clear epidemiological evidence pointing to quantifiable relationships with specific diseases. If a company has a 30 percent share of the cigarette market, you can generate a pretty solid estimate of how many cases of lung cancer its product caused.

Not so with food. We're pretty sure that highly processed food isn't all that good for you. But the consensus of what, exactly, is bad about processed food is still shifting (worries about salt seem to have been wildly overblown, and there are bitter debates over whether fat is bad for you). It's not clear how much lower the incidence of diabetes and so forth would be if everyone was cooking at home, and we certainly can't attribute a specific number of disease cases to, say, Pringles.

Then there's the question of the remedy. All the experts pushing the tobacco lawsuits were pretty clear on exactly what they wanted: fewer people smoking cigarettes. To that end, they forced tobacco companies to jack up the price and curtail their marketing.

But what do we want food companies to do? Presumably, the answer is not "sell no food with white flour, sugar, salt or fat in it." OK, but how much can they contain, then?

Believe it or not, food-processing companies have been trying hard to take this stuff out of their foods (in part to ward off proposals like this). Soup makers, for example, tried to substantially lower the sodium in their products, only to backtrack when it turned out that consumers didn't like the less salty soups. Salt, fat and sugar make things taste good. They also give them a longer shelf life, which in turn keeps the price down. Often the only way you can take out one of these ingredients, and still sell product, is to ramp up something else -- that's why, for example, low-fat products often have extra sugar.

What sort of master settlement agreement could you possibly get food processors to agree to? And even if you did get them to do it, what good would it do? Unlike the tobacco market, in which almost all the sales come from three big firms, food processors compete with a lot of small players who presumably would not be named in a lawsuit or bound by its rules. Not to mention the millions of consumers who could just buy some fat, salt and sugar and make their own deliciously unhealthy goodies.

These sorts of lawsuits do suggest dire things about the future of one industry: trial law. As the great money machine that was asbestos finally grinds to a halt, having bankrupted nearly every firm that ever touched the stuff, the trial lawyers will have to find more promising territory to launch mass torts from. If this sort of thing is the best they can come up with, then they're in real trouble.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

(Megan McArdle writes about economics, business and public policy for Bloomberg View. Follow her on Twitter at @asymmetricinfo.)

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