NC Says No Obesity-Based Lawsuits Against Junk Food Makers
North Carolina on Oct. 1 enacted a law limiting the potential liability of the food and beverage industry for obesity-related claims.
Let the Big Gulps Flow
The Commonsense Consumption Act (House Bill 683) does two things that the food and beverage industry in the state should appreciate.
First, it forbids North Carolina cities and counties from prohibiting the sale of super-sized soft drinks. “For this reason, the Act has been jokingly referred to as the ‘Big Gulp’ Act,” notes Christian Staples, a lawyer with Shumaker, Loop & Kendrick in Charlotte, in a recent blog post.
“Second, and more importantly, the Act shields manufacturers, distributors, sellers, and advertisers from civil liability for claims arising from weight gain, obesity, and other health problems associated with the long-term consumption of food and beverages, provided that certain requirements are met,” Staples explains.
The new law prohibits both direct claims by obese plaintiffs as well as “derivative claims” brought by the state attorney general or any corporation on behalf of obese people, Staples tells Lawyers.com. Exceptions are made for claims based on mislabeling or intentional misconduct in marketing, advertising, etc.
“There are lots of regulations governing the food and beverage industry, so I expect that creative attorneys will find ways to argue that the limitation of liability should not apply to their case,” Staples says. “For example, false advertising claims would seem to survive under the statute. This could result where certain foods are advertised as healthy but in reality are not.”
The law, which was sought by the North Carolina Restaurant & Lodging Association, can be viewed as a way to stave off a national trend of increasing litigation, which is only expected to increase now that the American Medical Association has officially recognized obesity as a disease.
Such claims are known as “obesity litigation” and have their roots in a 2003 class action in of New York brought against McDonalds on behalf of obese minors who claimed the fast food giant used deceptive advertising and violated consumer protection laws, says Staples.
Obesity litigation includes many types of claims today, including personal injury and products liability cases filed by obese plaintiffs who blame food manufacturers for their condition. They’ve become a trend, resulting in laws like the infamous one New York City Mayor Michael Bloomberg unsuccessfully tried to pass regarding soft drink sizes.
“The problem with these types of cases, however, is proving that any particular food or beverage manufacturer caused the obesity related injuries,” Staples says. “Proving medical causation is further complicated by research showing that obesity can result from a number of non-food causes, such as genetics and environmental factors.”
North Carolina’s new law itself can be seen as a trend. Mississippi and Oklahoma recently passed similar legislation, notes Staples, who estimates based on his reading that “approximately half of the states have some type of law which limits the liability of food and beverage companies from obesity related claims.”
The law can also be seen as part of the tort reform movement, which seeks to limit consumers’ ability to sue – mainly in malpractice suits, but in other areas as well. In 2011, North Carolina capped the amount of “pain and suffering” and “emotional distress” damages plaintiffs could win in medical malpractice cases, Staples points out.
Limits on obesity litigation are controversial, as organizations that help obese people continue to argue that obesity is a medical condition, not a “lifestyle choice,” as the Obesity Society maintains. Weight discrimination claims against employers are also based on this idea, but only Michigan and a few cities allow such claims.
“The issue has the potential to become political, especially in light of the AMA’s decision to classify obesity as a disease and the impact that may have on employers and employees under the ADA and FMLA,” adds Staples. “The issue really boils down the freedom of choice for consumers and the role of government in health care.”