On the Seoul-Berlin flight I read Peter Pringle’s Cornered: Big Tobacco at The Bar of Justice. I’m interested in tobacco as a model of how the US could apply responsibility for obesity onto food companies, and it reads like the world’s longest, unfunniest bar joke: How many lawyers does it take for a government to hold its own evilest companies to account for their impacts?
These events [an FDA inquiry, a high-profile ABC News piece on Big Tobacco and a shitload of leaked internal documents] had created a new anti-smoking era and set off an explosion of lawsuits that became known as the Third Wave of tobacco litigation.
The first, from 1954 to 1973, came after the big lung cancer scare of the early ‘50s, when laboratory research linking smoking to cancer in mice was first published. Sick smokers went to court, but proving their cancer was caused by cigarettes was much more difficult than their lawyers had imagined; the companies had little problem creating a doubt in the mind of juries.
In the Second Wave, from 1983 to 1992, the scientific evidence was more firmly established. But the industry still successfully beat back and claims for damages by persuading juries that a smoker chooses to smoke knowing the risks. By this time, the industry had built up the most sophisticated legal defences of any US commercial enterprise and wore down its opponents by outspending and outlasting them.
A tobacco lawyer had once boasted, paraphrasing General Patton, that he won cases not by spending his company’s money, but by ‘making the other son-of-a-bitch spend all of his.’
In other words, it wasn’t enough that cigarettes caused undeniable harm. Before liability could be proven, lawyers had to establish that cigarettes were singularly harmful: They alone caused lung cancer in their users.
The book then proceeds to tell the story of the Third Wave of tobacco litigation, the one that won. The reason it was finally successful wasn’t the leaks or the media or the activist head of the FDA (David Kessler, whose book I’m reading next). The Third Wave succeeded because of two things: 1) Cigarettes were demonstrated to be addictive, and 2) The Mississippi Attorney General came up with the strategy of suing Big Tobacco not for its harm to smokers, but for its cost to the state to treat them all.
Ultimately, the $368 billion tobacco settlement wasn’t punitive damages against their public health effects. It was a reimbursement for all the Medicare and Medicaid money the states had spent treating lung cancer and emphysema, and a hedge against their future costs. In exchange, the states agreed to stop suing.
The reasons the Third Wave lawsuits won are precisely why lawsuits against food companies won’t.
Cigarettes are a class of product in a way that food isn’t. While you can demonstrate that McDonald’s and Coca-Cola produce products that cause undeniable harm, it’s a lot harder to show that they cause singular harm. Fast food and soda contribute to America’s obesity problem, but they’re not the only ones that do. You could just as easily blame General Motors, Monsanto and Playstation for our national calorie surplus and activity deficit.
Addiction is similarly difficult to show. While it’s pretty well established that some foods have the hallmarks of addiction (compulsiveness, tolerance, withdrawal, etc), there’s no evidence that food companies deliberately modify the levels of sugar and fat in their products to trap their users.
And then there’s reimbursement of medical costs. Obesity is related to everything from joint pain to dementia, and estimates of the ‘cost’ of obesity are usually just a finger in the wind. Everybody has to eat; lots of people who eat junk food aren’t fat, and lots of fat people don’t eat junk food. Tying obesity-related morbidity to a particular product (Big Macs), company (McDonald’s) or sector (drive-in fast food) would require a class of monogamous users that probably don’t exist in large numbers.
If the food environment in the US is going to improve, it probably won’t be through legislation, at least without a few more failed waves of litigation and whistleblowing.
More generally, I know we’re supposed to think of the Big Tobacco lawsuits as a victory for public health and a triumph of little victims over big corporates, but it actually demonstrates the opposite. The tobacco settlement represents the culmination of decades of work by personal-injury lawyers to get tobacco companies to fork over astronomical punitive damages, of which they were entitled to a cut.
Pringle blithely notes that in the big-time asbestos lawsuits of the ‘80s and early ‘90s, lawyers took home up to 65 percent of the billion-dollar damages, and the victims of lifelong respiratory illnesses, on whose behalf the lawsuits were filed, received as little as $40,000 each. The tobacco settlements ultimately went to the states, not the victims of smoking-related illnesses.
I suppose it’s nice that lawyers, like the press, represent an informal check-and-balance in the US political system, but the Big Tobacco settlements don’t demonstrate a victory for the ‘little guy’. They’re just one set of big guys winning against another in the third round.