Originally posted at Photon Courier 5/29/2003
(This doesn’t seem nearly as far-fetched today, with Nanny Bloomberg running rampant, as it did in 2003)
Several months ago, a Federal court threw out a lawsuit in which McDonald’s was charged with contributing to obesity. But don’t think this is the end of the story. Lawyers are salivating about the potential damages which could be extracted from the restaurant industry. Approaches are being fine-tuned, and new lawsuits are being filed.
Most of these lawyers claim that what they want is for restaurants to do a better job of disclosing ingredients and associated risks. But does anyone really think it would end there? Suppose some of these suits prevail, and the McDonald’s menu board is loaded up with nutritional information. The next wave of suits will allege that the type size is too small…or, if the type size is large, that the data is too summarized and not detailed enough. And if a restaurant puts data in their menu that is both detailed and in a large type font, they will be sued for overloading their customers with more information than they can possibly comprehend.
In such a litigious environment, of course, restaurant companies will move to protect themselves as best they can. What form might this self-protection take? Let’s skip ahead a few years…you’ve gone to a favorite restaurant to enjoy a steak.
WAITPERSON: Welcome to Snarfer’s Steakhouse. I’m Stacy, and I’ll be taking care of you today. Could I scan your smartcard now? (Swipes the card). Now, what would you like to have?
YOU: I’ll have the sirloin steak and a baked potato..and a salad to start, please.
STACY: Well, let’s see (types on her handheld)…Gee, I’m sorry, sir, but your cholesterol intake over the last month has been kind of high…how about the roast chicken instead?
YOU: I really was in the mood for steak…say, I’ve lost about ten pounds lately. Doesn’t that count for anything?
STACY: It might…if you could just step over to the scale. (You walk over to the scale and insert your smartcard. Stacy checks her handheld again.)
STACY: I’m really sorry, sir…maybe if you’re really good for another week…but for tonight, you need to think about the chicken or one of our vegetarian entrees.
Seem improbable? Yes. But many of the outcomes of today’s litigation boom seemed highly improbable before they happened.
One point that’s often missed is that harm done by tort law excesses isn’t limited to economic damage. The fear of lawsuits erodes personal freedom in dozens of ways. It’s an erosion for which many civil libertarians fail to show much concern…due in part, probably, to their own preference for lawsuits as a vehicle for social change.
I don’t mean to suggest that there are never cases in which a restaurant should be held liable for health effects of menu items. For example: if a restaurant used a cooking process which it knew to be highly carcinogenic, and withheld the relevant information from customers, liability would be justified. But that’s something very different from attempting to collect damages for every overweight person in America.