applicable public policies, which generally are more appropriately determined by the legislative and executive branches of government.


The use of litigation to reduce smoking demonstrates both the disadvantages and advantages of this approach, said Mark Gottlieb, executive director, Public Health Advocacy Institute, Northeastern Law School. Litigation can take a long time to succeed. In the case of tobacco, it began in the 1950s, but the first verdict to be upheld and result in payment by industry did not occur until 2000. In the meantime, however, good things can happen. Litigation can raise awareness among the public or policy makers about a problem or the occurrence of misconduct. The discovery process, in which litigants exchange documents and other evidence to prove or disprove claims, can shed light on industry practices. Litigation can increase prices or costs for manufacturers, which can reduce consumption. Whistleblowers may emerge from within companies to tell their stories in public. And all of these consequences can cause the media and legislators to take a hard look at an industry. Hearings on tobacco in the 1990s, for example, made a deep public impression and damaged the industry even before any cases had been won.

Nevertheless, “litigation is a blunt tool for policy change,” said Gottlieb. Regulatory rulemaking and legislation are much more direct and conventional means of achieving specific public health policy goals. This was not happening with tobacco, noted Gottlieb, which is why litigation became a “last resort.” But the situation is somewhat different with food. Progress is being made on various fronts, although perhaps not as rapidly as people would like. In the case of food, litigation may be a valuable complement to rather than a replacement for legislation, regulation, and industry change.

The first obesity cases were filed in the early 2000s as people became more aware of the obesity problem. The first was a case on behalf of a man named Barbar, who sued a number of fast food companies. That case was quickly dismissed, but a subsequent case, Pelman v. McDonald’s, had more impact. Gottlieb recounted that the case was based partly on consumer protection grounds but also on traditional product liability approaches around negligence and failure to warn, as might be the case in a lawsuit against cigarette manufacturers.

In response, a group called the Center for Consumer Freedom helped spearhead a round of state tort reform initiatives that eliminated individuals’ rights to sue for reasons related to obesity in many states. The campaign against obesity-related litigation dwelled on some of the differences between tobacco and food. Cigarettes cannot be healthy, whereas foods can. Also, there are so many foods and so many food manufacturers and distributors

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