The Personal Responsibility in Food Consumption Act: A proposed food law with massive implications

The Personal Responsibility in Food Consumption Act: A proposed food law with massive implications

The concerning nutrition law that could soon be on Trump’s desk

Why write about this policy now?

Currently, the Executive, Judicial, and Legislative branches of the U.S. Government are controlled by Republicans. This essentially means that Republican ideas can become law with little or no input from Democrats. Gleefully, Republican lawmakers are delving into the backlog of ideas that couldn’t be passed through previous governments to find whether they can usher them through the now-favorable political landscape.

One idea Republicans may resurrect is the “Personal Responsibility in Food Consumption Act,” also known as “The Cheeseburger Bill.” While the Bill might not have an immediately harmful effect on Americans, it could generate seriously detrimental consequences over time.

The Bill is noteworthy because it has serious political and philosophical implications regarding how our society views the obesity crisis, and by extension, how we view our citizenry as a whole. The table of contents for my arguments is below.

Introduction to the Bill

Arguments for the Bill

• Why the Bill makes good policy
• Why the Bill adheres to good philosophy

Arguments Against the Bill

• Why the Bill is a bad policy
• Why the Bill fails philosophically

Conclusions

• Final analysis

Introduction to the Bill

In the early 2000s, Florida Congressman Ric Keller found his campaign coffers flush with donations from the food industry (Source). To repay the industry for their generosity, Congressman Keller authored the “Personal Responsibility in Food Consumption Act” (PRFCA) to shield the food industry from lawsuits accusing them of causing obesity in consumers. The summary of the PRFCA was as follows.

AN ACT: To prevent legislative and regulatory functions from being usurped by civil liability actions brought or continued against food manufacturers, marketers, distributors, advertisers, sellers, and trade associations for claims of injury relating to a person's weight gain, obesity, or any health condition associated with weight gain or obesity.

In common English, the Bill would prevent consumers from even attempting to use legal measures such as tort or class action suits to punish the food industry for causing their obesity. Note that this law didn’t just determine that the food industry would win any such lawsuit, rather it stated that even filing such a lawsuit should be impossible.

This gag on obesity litigation does not apply in cases where mislabeled, misadvertised, or otherwise deceptively sold products contribute to a plaintiff’s obesity problem. The law only applies to cases in which a consumer is attempting to blame a food manufacturer or retailer for selling a harmful product even when trade was entirely lawful.

The Bill was a response to what some congresspeople considered “frivolous lawsuits,” in which citizens futilely attempted to sue corporations such as McDonald’s for causing their obesity. While the Bill passed the U.S. House in 2005, it never received a vote in the Senate, leading to its de facto failure. (As a side note, the Senate version was sponsored by now Senate Majority Leader Mitch McConnell, which is one reason why I believe the Bill could rear its head again.) Although the Bill failed federally, about half of the states in the U.S. have passed some version of the Bill.

While debating the PRFCA, politicians raised a vast array of arguments for and against, ranging from cries of surfeit federalism to allegations of the Bill’s triviality. In the following arguments, I will ignore issues such as states rights and purportedly overenthusiastic trial lawyers. Instead, I will focus only on the most important areas: the political implications of such a Bill as it relates to the food industry, and the philosophical implications of such a Bill as it relates to placing blame for the obesity crisis. I will begin by examining the pro-PRFCA arguments.

Arguments for the Bill

Political Arguments

Lawsuits are expensive. Therefore, if it can be proven that a particular strain of lawsuit or litigation is futile, then to save money, future filings of those lawsuits should be avoided. In relation to the PRFCA, this means that if we can prove the frivolity of lawsuits blaming the food industry for obesity (obesity-blaming lawsuits), then we must conclude that such lawsuits should be outlawed for the financial interest of both the plaintiffs and defendants.

At the time of debates on the PRFCA, not a single obese plaintiff had successfully sued the food industry. Each case was found in favor of the industry, and the judges often dismissed the plaintiffs rather sternly. This suggests that the lawsuits are in fact frivolous, therefore a waste of time and money, and so for the sake of fiscal responsibility they should be banned under some act of Congress. This concludes the political arguments for the Bill.

Philosophical Arguments

The primary philosophical argument for the PRFCA is rather obvious: People must take personal responsibility for purchases they make. Imagine a person who gets in a car crash with a fairly sold, fairly advertised, and perfectly functioning car. It would be ridiculous for them to sue the manufacturer of the car for accident-related injuries. The collision wasn’t the manufacturer’s fault, it was “user error.” The customer “consumed” the car by choice, and they knew the risks associated with that consumption.

Of course, if the manufacturers or advertisers promised working airbags, but the airbags failed, one would be entirely justified in prosecuting the manufacturer or advertiser. This situation would be analogous to suing a food manufacturer for displaying a 100 Calorie count on a label when the actual count is 200. This is a clear violation of existing regulations, so suing is entirely justified, but the case would reside outside the scope of the PRFCA.

The question we must answer is whether consumers should be allowed to blame industry for their obesity when all transactions were fair and no regulations were violated. To lead off this argument, I will refer language directly from the U.S. House Bill.

“a person's weight gain, obesity, or a health condition associated with a person's weight gain or obesity is based on a multitude of factors, including genetic factors and the lifestyle and physical fitness decisions of individuals, such that a person's weight gain, obesity, or a health condition associated with a person's weight gain or obesity cannot be attributed to the consumption of any specific food or beverage; and

“because fostering a culture of acceptance of personal responsibility is one of the most important ways to promote a healthier society, lawsuits seeking to blame individual food and beverage providers for a person's weight gain, obesity, or a health condition associated with a person's weight gain or obesity are not only legally frivolous and economically damaging, but also harmful to a healthy America.” - HR 339

Nested within other arguments (to be addressed later) is the postulate that when Americans take responsibility for their own nutritional inadequacies and stop placing blame externally, they will become healthier. Corroborating this claim is a Senate testimony given by Dr. Gerard Musante, a psychologist specializing in weight loss.

"Through working with obese patients, I have learned that the worst thing one can do is to blame an outside force to get themselves 'off the hook,' to say it's not their fault and that they are a victim. Congress has rightly recognized the danger of allowing Americans to continue blaming others for the obesity epidemic. It is imperative that we prevent lawsuits from being filed against any industry for answering consumer demands. The fact that we are addressing the issue here today is a step in the right direction." - Dr. Gerard Musante

Certainly, nutrition experts agree that proper nutrition should be accepted as a personal responsibility. Dedication to proper nutrition is necessary if there is to be any hope of a healthy society. Additionally, the value in accepting personal responsibility for your actions is not just important in relation to nutrition, but is also the bedrock of freedom in our society. By internalizing responsibility, we govern ourselves on a personal level, meaning the actual government can be less encroaching. Because personal responsibility is so necessary to upholding American values, legislation to encourage it is reasonable.

The second argument the Bill poses is consistency with scientific evidence.

“a person's weight gain...is based on a multitude of factors, including genetic factors and the lifestyle and physical fitness decisions of individuals, such that a person's weight gain...cannot be attributed to the consumption of any specific food or beverage.”

This argument, that a person’s obesity is the result of a number of factors that may be unrelated to food consumption—and certainly unattributable to a particular food or brand—is clearly evidenced by scientific rigor. Take genetics, for example. Suppose one person who is genetically predisposed to a fast metabolism eats McDonald’s daily with no effect on their weight, while a second person with a slower metabolism and the same McDonald’s habit contracts diabetes. Both of these subjects have endured the same “treatment” from McDonald’s. Should they both be able to sue even though one of them has not suffered any malady from the treatment? Consider a second example. What if instead of being genetically predisposed to a fast metabolism, the first subject adheres to a rigid exercise program which prevents them from becoming obese, while the second subject prefers to sit in front of a TV. The first subject takes personal responsibility for their poor mealtime decisions, and therefore suffers no ill effects. Undoubtedly, it would be unjust to only allow the lazier person to gain from a lawsuit. However, the subject that exercises isn’t suffering, so they would be receiving compensation for nothing. It’s ridiculous to propose that someone be compensated for obesity if they aren’t obese. Therefore, because the fit person won’t be compensated for the “McDonald’s treatment,” neither should a similarly situated obese person.

Now to address the “[weight gain] cannot be attributed to the consumption of any specific food or beverage” portion of the argument. Currently, there is no scientific instrument precise enough for a courtroom that can pinpoint an exact cause of obesity. Even if there were such a tool, it would likely be ineffectual because it would indicate a wide array of causes, diet being only one of them. Therefore, because identifying the specific causes of a specific case of obesity is difficult and imperfect, a court is unlikely to be able to place blame on a specific product or organization. This means they are unlikely to ever have evidence accurate or sufficient enough to find a case in an obese plaintiff’s favor.

In total, these philosophical arguments reinforce one of the premises from the political arguments section: Lawsuits blaming obesity on the food industry are frivolous. There are far too many legal, philosophical, and scientific obstacles to make the food industry liable for obesity.

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Arguments Against the Bill

Political Arguments

In this section, I won’t attempt to counter the political arguments for the bill. I will just remind you that they invoke fiscal responsibility, arguing that the PRFCA will save taxpayers and businesses from having to pay for expensive and frivolous litigation. Interestingly, anti-PRFCA agitators don’t refute the pro-PRFCA arguments. Rather, opposers of the PRFCA state that even though preventing obesity-blaming lawsuits makes economic sense, outlawing an entire strain of lawsuit isn’t something to be taken lightly, and it certainly should not be done in the name of minor economic benefit. In general, Congress could outlaw many types of suits and save heaps of money for businesses and taxpayers on litigation, but the “checking” power of the judicial branch would be severely limited.

PRFCA opponents claim that it is the right of a citizen in a society of laws to have the power to bring a lawsuit, even when it is not likely they should win that suit. In other words, the fates of these lawsuits should not be predetermined by Congress, but they should be left to the Courts.

Representative Pete Stark (CA) articulated this, along with the other main arguments against the PRFCA, in the statement below (Source).

“Many of the pending cases are for false advertising, claiming food is low fat when it’s really not, and this bill is so broadly worded that it would preclude such cases from going forward. The threat of legitimate lawsuits against fast-food corporations is as much a part of creating social change as is the threat of a Congressional investigation…Even more important than the issue of obesity or Congressional meddling in the judicial branch is the fundamental right of every American to have their day in court...Congress has no business preemptively closing the courthouse doors to a particular group of Americans.” - Rep. Pete Stark

Congressman Stark actually makes three separate arguments in this statement. The final argument, that “Congress has no business preemptively closing the courthouse doors to a particular group of Americans,” is discussed above. The other two arguments, that the Bill is too broad, and that the threat of lawsuit or investigation is an essential part of a civilized society, deserve their own discussions. I will begin with the argument that the Bill is too broad.

In the interest of fairness, because the PRFCA does not always appear in the exact same writing in all versions, the “broadness” argument might not always apply, so I will only address it briefly. You may remember that the author of the Bill, Ric Keller, received donations from food industry lobbyists, which likely motivated him to write the PRFCA. It would not be unusual for a sell-out congressman to write a law claiming to do one fair and proper thing, but actually aiming to accomplish a devious side effect which was the true goal all along. Representative Keller may have outwardly planned to write a Bill in the name of fiscal responsibility and reduction of frivolous lawsuits, but he could have also kept the Bill vague enough to protect an industry from legitimately fair and possibly damaging lawsuits. As Representative Stark points out, even though the House Bill doesn’t explicitly say that it could be used to block lawsuits accusing the industry of false advertising, it potentially could be construed as such. Again, this criticism does not apply to all forms of the PRFCA, but it is a concern that Representative Stark and I both share about some versions of the Bill.

Finally, I will address the last point of Representative Stark’s statement which is probably the most convincing argument out of all those I will discuss in this essay. Stark claims “The threat of legitimate lawsuits against fast-food corporations is as much a part of creating social change as is the threat of a Congressional investigation.” In this quote, Stark unveils a nefarious, underlying goal of the PRFCA. Threat of legal action is something every person and every business should suffer in a society of laws. No one is exempt. Representative Keller might counter that the food industry was far too exposed to repeated and frivolous suits, but my response would be that susceptibility to legal action is an unfortunate consequence of being a major player in the public sphere. Consider the following analogy.

An honest person, let’s call him Ronald, who has never shoplifted in his life, is repeatedly accused of shoplifting by angry owners of stores who are frustrated that they can’t seem to make a profit. Each time Ronald is taken to court, he easily proves his innocence and the charges are dropped. Should Ronald be able to lobby Congress to enact a law that gives him immunity to what have so far been frivolous charges of shoplifting? Certainly not. If he were granted that immunity, he would then be free to shoplift on any occasion he pleased.

Basically, the analogy argues that once the food industry gains immunity from obesity-blaming suits, it will be free to actively cause obesity. The threat of suits acts as a check to ensure the industry maintains fair behavior. However, as some public health advocates have argued, an industry’s susceptibility to lawsuits is far more essential than just a check. Michele Simon, a lawyer and food policy expert, argues this eloquently in her book “Appetite for Profit.” I defer to her words.

“What scares food companies even more than costly jury verdicts is the prospect of the discovery process—when lawyers are allowed access to the defendant’s documents and other inside information—unearthing damning information about dishonest industry practices. This in turn, can open the door to a plethora of new government regulations.”

“An avalanche of damning documents discovered through litigation against the tobacco industry revealed so much information that an entire research group at the University of California is currently dedicated to its study. The food industry has learned from tobacco that litigation is a powerful public interest tool.”

“What exactly will be revealed through litigation that would harm Big Food? One possibility is evidence of efforts to addict consumers to its products. According to information uncovered by the Physicians Committee for Responsible Medicine, some food manufacturers deliberately target consumers who are vulnerable to certain food addictions. Recent studies reveal that some unhealthy foods—such as chocolate, sugar, meat, and cheese—are physically addictive. Overeaters also demonstrate typical addiction behaviors such as craving, loss of control, and relapse. Lawsuits could help uncover the extent to which the food industry has known about, concealed, and taken advantage of such food addictions.”

Simon invokes the nutrition advocate’s favorite analogy to Big Tobacco as an example of how we should handle Big Food. She is far from alone in making this comparison. A Northeastern University law professor named Richard Daynard made the same argument. He reminds us that in the ‘90s, it was considered frivolous to sue tobacco industries for illnesses relating to smoking. But...

“People changed their minds (about the frivolity of the lawsuits) when documents started to come out about how tobacco companies misled customers about the alleged health benefits of light and low-tar cigarettes.” - Professor Richard Daynard

Essentially, while the tobacco suits may have begun as frivolous, they quickly revealed damaging information that actually did lead to both charges against the industry and the uncovering of the negative health effects of cigarettes. Returning to the context of the PRFCA, if we outlaw what currently seem to be frivolous obesity-blaming lawsuits against the food industry, we may never learn about any criminal or unethical activity they are perpetrating.

In total, the negative political consequences of the PRFCA are legion. Adopting it would place a blindfold on our legal system, preventing it from enforcing laws on an already unchecked industry. These are the political ramifications. How about the philosophical concept of “personal responsibility?”

Philosophical Arguments

If you recall from the pro-PRFCA arguments section, the philosophical discussion of the Bill revolves around the question of who deserves blame for a person’s obesity. As in the anti-PRFCA political section, I cannot effectively counter any of the arguments made in the pro-PRFCA philosophical section. Each of the conclusions the section draws are valid. Rather, I will introduce new elements that may serve as an indirect opposition.

I will begin with the big picture. It is no secret that America harbors a serious obesity epidemic. While our problem is not unique, it stands out among first world nations. We consistently rank as one of the most obese nations in the world (Source), only occasionally surpassed by various developing nations. So why does America suffer from an obesity crisis, while other countries of similar economic footing don’t?

If we trust in the logic of pro-PRFCA agitators, it is at least in part because the American people lack personal responsibility. They argue that the reason Americans are so obese is because they fail to internalize dietary responsibility, instead simply placing blame on corporations or society when they suffer the consequences of their gluttony.

This begs the question: Is there something uniquely American that encourages citizens to shirk their personal responsibility? Are Americans inherently lazier, hungrier, or more prone to weight gain than other peoples? Maybe. But it’s doubtful.

Far more likely is that there is a political or economic force common to all Americans that promotes a society-wide propensity for weight gain. This political or economic force might include the powerful food industry lobbying arm that encourages the government to modify the Food Pyramid or MyPlate so that citizens will be encouraged to consume a particularly profitable group of food.

Or, this political or economic force may refer to the industry that persistently undermines the sage, objective, and qualified advice offered by registered dietitians to convince burgeoning athletes that they must drink a specific brand of protein powder in order to be successful.

Or, this political or economic force could include advertising aimed at kids using flowery, exciting language that convinces susceptible minds that a product is healthy, while hiding the required disclaimers in fine print that children will never read.

Or, this political or economic force could be an under-funded public school system that is financially coerced into allowing Coke vending machines in their halls because Coke knows that the school’s acceptance of the machines would appear to be an implicit endorsement of their product to young, impressionable students.

While none of these instances is explicitly illegal, their existence in America reveals that food retailers frequently distort the truth in their marketing strategies, indicating that purchasing of their products might not always stem from a fully-informed decision. Therefore, it may not always be that citizens are personally responsible for their obesity, rather it may be the food industry and overly permissive lawmakers that are to blame. Note, of course, that I am not arguing that the food industry should be legally liable for the obesity epidemic, nor am I arguing that they are fully at fault. I only argue that they are not blameless.

The second argument I posit is best viewed through the lens of classism. I’ll begin with an argument by analogy, referring to a common situation in environmental politics that may provide precedence for obesity-blaming lawsuits.

Suppose a heavily-polluting industry sets up shop in an area just outside of a town. As the town grows, affluent incomers avoid the polluted areas, knowing pollution can cause sickness and general displeasure. This lowers demand for the polluted area, thereby lowering the land’s price and encouraging the settlement of low-income citizens. For a citizen who must reside in the city for a job, they may have no choice but to live in the polluted area because it is all they can afford. They don’t have the ability to freely shop the market to make the choice that is best for their health. There is precedence in situations like this that the polluters should be liable for sickness caused by their pollution. If plaintiffs can evidence that an industry is exerting negative externalities on an area, they may be able to use tort or class action law to elicit reparations.

So how does this relate to nutrition and the PRFCA?

America’s lower socioeconomic classes cannot afford the often more expensive, healthier foods. They also cannot afford quality education or counseling on proper nutrition. As such, they don’t have fully informed choice - nor do they have entirely free choice - in the market. Therefore, they are forced to be subject to the effects of a poor diet. In this case, obesity is not arising from a defect in character. Instead, it stems from a societal and political layout that is harmful to a specific economic class.

To bring this back to the context of the PRFCA, we must ask who deserves the blame and punishment for our obesity crisis. Well, put generally, the architecture of society and the food system are to blame. However, it is difficult to prosecute an entire society or system, and it is equally difficult to discover who would be deserving of reparations from any such prosecution. Therefore, most such lawsuits would be difficult to carry out, and they would likely fail. So even though a plaintiff might not be to blame for their obesity condition, they likely won’t be able to successfully pinpoint blame on whomever is.

In summary, whether a person should accept personal responsibility for their nutritional status is complex, and it likely varies on a case-by-case basis. Answering these difficult questions is the job of the courts. Consider one final example I touched on earlier that might offer hope for the future success of obesity-blaming lawsuits.

As a student in nutrition, I have witnessed firsthand the feeble grasp that most of the public has on nutritional science. Many Americans are confused, and often mistrust advice—even qualified advice—because of their confusion. Is this their own fault? Is America’s nutritional illiteracy a result of our people being too lazy to read up on the topic? Or is it because there is a powerful industry of diet products and junk food manufacturers purposely obscuring prudent, qualified, nutritional guidance in an effort to promote the consumption of their own products? Noting the conflicting phenomenon of our diet-obsessed society that is simultaneously of the most obese nations on Earth, I posit the latter.

If my conclusion is correct, there could certainly be documents or evidence that outline marketing strategies the industry used to intentionally misinform the public. These documents could be leveraged to force industry to compensate the American people for damages their marketing has caused. However, as Michele Simon’s quote in the policy section showed, any such documents won’t surface if the discovery process involved in filing lawsuits is unavailable. For this reason, we must continue allowing prosecutors to keep tabs on the food industry.

As the philosophical arguments above have shown, determining whether a person’s obesity is a result of their own character defect, or if it is caused by an external force, is difficult.

Complex decisions regarding whether the food industry is to blame for obesity should therefore be made by the fine point of Courts, not indiscriminately discounted by the broad brush of Congress.

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Based on the total sum of the arguments I made in this essay, I can defensibly conclude whether the PRFCA should be made law.

Conclusions

You may have noticed that the political arguments against the PRFCA far outweigh the political arguments for it. However, on the philosophical front, the debate is nearer a draw. So if the PRFCA makes bad policy, but the philosophical debate is inconclusive, what does this mean we should do?

Congress resides in the political domain, where it must focus on writing broad rules for the nation. Meanwhile, courts inhabit a philosophical domain, where they draw conclusions about right and wrong on a more personal level.

Because the policy arguments for the PRFCA are limited, Congress should not enact it. Rather, courts should be given the opportunity to continue hearing these obesity-blaming cases to decide them on the merits of each specific instance. If courts repeatedly find these cases to be frivolous, then so be it. As I, Michelle Simon, and Professor Daynard evidenced, frivolous cases still serve a purpose as an indisposable check on industry by allowing courts to both consider the morality of a particular industry and to use the discovery process to delve deeper into the details of an industry to ensure its legality.

Undeniably, there are numerous valid arguments for passing the Personal Responsibility in Food Consumption Act. I simply argue that the punishment we might endure from such a decision would outweigh the benefits it may provide.

• Ben Chapman, July 2017

“Justice? You get justice in the next world, in this world you have the law.” - William Gaddis