Can you sue a restaurant for making you obese?

Can you sue a restaurant for making you obese?

by Mariah Wojdacz, December 2009

Can you sue a restaurant like McDonald's for your obesity? The simple answer is, well, maybe. Recently, the fast-food industry has come under fire, accused of marketing irresponsible products to unsuspecting customers who do not know the dangers of indulging. Exposés such as Morgan Spurlock's documentary "Super Size Me" have sparked concern while illustrating danger.

But if you are thinking of filing your own "McLawsuit," you may want to hold the phone. Lawmakers are attempting to ban such litigation, and if they succeed, all preceding lawsuits will be dropped, as well.

On October 19, the House of Representatives passed a bill that would prohibit obesity-related suits against food manufacturers and restaurants such as McDonald's, KFC, Hershey's, or Nabisco.

The legislation is intended to clarify that responsibility for overeating rests not with manufacturers but with consumers, seeking "to block lawsuits by people because they ate too much and got fat," according to Rep. Chris Cannon, R-Utah, one of the bill's co-sponsors. And Rep. Lamar Smith, R-Texas, warns, "We should not encourage lawsuits that blame others for our own choices and could bankrupt an entire industry."

Congressional concern over these McLawsuits is not new, but it does appear to be growing. Last March, the House passed the so-called "Cheeseburger Bill," 276 to 139 votes. At the time, Speaker of the House Dennis Hastert, R-Illinois, said that as Americans, we need to "realize that suing your way to better health is not the answer. Trial lawyers need to stop encouraging consumers to blame others for the consequences of their actions just so they can profit from frivolous lawsuits."

The current legislation, which is nearly identical to the Cheeseburger Bill, enjoyed a wider margin of victory - 306 to 120 - which indicates a growing sentiment among lawmakers that the food industry needs protection against frivolous lawsuits. The ban, however, is not yet on the schedule for the Senate, and like its predecessor it may simply fall by the wayside.

Like any proposed piece of legislation, the McLawsuit ban has critics, and they point out that only a handful of such suits have ever been filed, the majority of which have been dismissed. Therefore, critics claim the courts are already doing their job by tossing out frivolous claims, and that the ban would be redundant and unnecessary. "It protects an industry that doesn't need to be protected at this particular point and we're dealing with a problem that doesn't exist," said Rep. James McGovern, D-Massachusetts.

In 2003, U.S. District Judge Robert Sweet threw out a class-action lawsuit wherein obese teenagers were suing McDonald's, because they could not show that consumers where unaware of the negative health effects of eating too many Big Macs. "If consumers know...the potential ill-health effect of eating at McDonald's, they cannot blame McDonald's if they, nonetheless, choose to satiate their appetite with a surfeit of supersized McDonald's products," Sweet said, quoted in The Washington Times

But according to Times' reporter Chris Baker, the judge did rule that the plaintiffs could refile, "if they could show there are dangers to eating McDonald's food that are not commonly known."

Sweet's ruling in this case set the legal precedent upon which most judges are now resting their decisions regarding obesity lawsuits against fast-food restaurants.

In light of the courts' unwillingness to hear these obesity lawsuits, some lawmakers have argued that to ban them is unnecessary. "Congress is headed in the wrong direction with this bill," said Rep. Bob Filner, D-California. He warned a ban would remove "any and all incentives for the food industry to improve the healthiness of their products."

But McDonald's is already taking steps to do just that. By offering a wide variety of menu items, McDonald's could argue that it is up to the consumer to make healthy decisions regarding what they eat. Recently, McDonald's announced it will soon begin printing nutritional information on food wrappers and packaging. In an interview last month, McDonald's CEO Jim Skinner explained that the fast-food giant has been communicating with customers about the ingredients in their food for more than 30 years. "This was a way for us to close that loop and provide them with an easy way to understand the nutrition information in the food that they're eating," said Skinner.

But critics of the measure say it does not go far enough, particularly because the customer will only see the nutritional information after they have ordered and paid for their food. And although the Center for Science in the Public Interest has called the move "a useful step," the nonprofit group advocates putting the information on the menu boards instead. Skinner said that would make the boards too complex and slow down service, according to an AP report.

Regardless of the criticism, it is clear that McDonald's is attempting to provide information and healthy alternatives for consumers, and other fast-food chains are following suit. Wendy's now offers side-salads and baked potatoes as substitutes for fries with combo meals, and Burger King has expanded its healthy selections, as well. More healthful menu options will likely make it harder for plaintiffs to claim they had no choice but to down two cheeseburgers, fries, and a shake.

So if you are thinking about filing one of those McLawsuits, think again. About 20 states already ban such litigation, and even though there will likely be no federal ban against such suits anytime soon, the courts have already shown a pronounced bias against them.

For those of us who enjoy the occasional Whopper or McGriddle, this bias comes as music to our ears. Why? It means that when we place our order, we won't be hearing the words, "Could you sign our liability waiver form with that?"

At least, not anytime soon.