Cashing In on Obesity?

Michael S. Victoroff, MD

MANAGED CARE December 2002. ©MediMedia USA

Michael S. Victoroff, MD

For every complex problem, there is a solution that is simple, neat, and wrong.
— H.L. Mencken

Obesity is a tricky problem for managed care companies. The “American disease” is so mediaphilic that it routinely generates nutty suggestions. It was only a matter of time until someone found somebody to sue.

A JAMA article — I guess we were meant to take it seriously — proposes to solve obesity with “food litigation.” This would be a project modeled on the recent entrepreneurial tobacco tort. Because obesity costs insurers a ton of money, maybe health plans should join in. Who gets sued isn’t important, as long as they’re rich. The JAMA authors nominate the food industry.

In a reprise of the great Tobacco Profit-Sharing Plan, law firms would become unwanted partners of the food industry, skimming a share of its revenues under the camouflage of personal-injury suits. This will do nothing to improve health, but neither did the tobacco settlement. Food companies should be delighted at the visibility they’ll enjoy from a class action that potentially involves everyone with a digestive tract.

In this venture-tort model, lawyers collect what amounts to taxes from selected companies, under the sanction of the state, which shares the booty. The companies continue selling their product — for the deal to work, they must — while consumers buy it at higher prices.

The authors proclaim, “Litigation is a new front in the battle to control obesity.” They wish.

They made me eat it

Despite noting that tobacco and food differ in that people can live without the former but not the latter, the authors villainize companies whose “misconduct led to food overconsumption and injury to the plaintiffs.” It’s amazing how we can shift from the role of dufus to plaintiff with a little contortion of common sense.

Our current notion of what makes people fat is that they just eat too much. Unfortunately, this simplistic idea has not yielded a typically American solution so far (that is, a pill). While we await new insights that probably will void our medieval understanding of obesity, the JAMA legal team invites us to make the most of our misconceptions before they are disproved.

The article skims over obstacles that would keep any rational court from entertaining a claim so utterly frivolous, then goes on to rally support for it. Apparently, fat people are the victims of “deceptive marketing practices” that induce them to eat stuff they don’t really want. Coercion is critical to their claim of injury, because if the plaintiffs were gorging willingly, they would be accomplices rather than victims.

It would shock our Puritan ancestors to learn that today, people overcome by their cravings are victims rather than sinners. At one time, in Spain, it was supposedly an accepted defense in a case of rape to say, “No man could control himself alone in the room with such a beautiful woman.” Under the enlightened reasoning of the food tort, the woman should be sued.

What is a disease, as opposed to a decision? We ask ourselves this about alcoholism. Disease is one of the stronger defenses against accountability. Societies define diseases in ways that reflect their views about the sources of moral action. Philosophically, questions about the voluntariness of obeying one’s appetite confront the central problem of what morality entails.

Who is fat?

Sadly, managed care companies might not be able to offer the plaintiffs much help. Most health plans have been thwarted by several factors in addressing obesity. The same problems are going to stymie a blubber trial.

First, you’ve got to define who’s fat. An arbitrary body mass index (say, 30) has some validity from a medical standpoint. But for litigation, the “injured” can’t be delineated so precisely. Lots of folks down in the 25 range could demonstrate food injury if money were involved — not to mention anorexics who perceive themselves as having “fat injury,” no matter what their mirrors say. So, who decides who’s fat? The health-risk tables don’t have obvious zones. Are people whose cardiovascular risk is doubled “injured,” while those with less are not?

Obesity comprises several distinct conditions with different etiologies and natural histories. Morbid obesity isn’t the same genetic and pathological entity as love handles. Maybe we should start talking about “the obesities,” instead of referring to fat as a single condition. What would this do to our class definition?

Guinness, take note

Second, whatever the definition, there are so many fat people that we’d have to recalculate the entire health care budget to treat them. This is a monstrous problem for those who set coverage policy. Suing for coverage would surely establish the most expensive claim in history. If one goal of a class action suit is to benefit the plaintiffs (I’m kidding), we’d have to collect the entire gross domestic product from the defendants to compensate victims in any meaningful way.

Of course, a class action isn’t really intended to help the class. But, suppose it were. Compensation presumes that either there is an effective treatment for being fat, which there isn’t, or that fat damages can be calculated, which they can’t. These would both be insuperable problems for a rational compensation system.

There’s a marvelous paradox here. If we pay fat people for their lost future life span, how can we simultaneously pay for their joining health clubs? Would those who actually lost weight have to refund their settlements? Would we give skinny people a deadline to become fat to qualify for a share of the payoff? Or, as in cases where people with no demonstrable risk can collect for fear of future cancer, would we pay skinny people for lipophobia? (“Fat: It can strike you or your loved ones at any time!”)

Celebrate with a steak

Worse, what if fat people used their settlements to buy food? The compensation itself would become a cause of injury. (Then, could they sue their own lawyers? An infinite reductio.)

Another problem is naming the defendants to sue. Would all farmers, retailers, advertisers and chefs be equally liable? Or, would some tribunal determine the relative guilt of each hot-dog vendor and cookbook author, using a social-value formula? How is “food misconduct” defined? I suppose most holidays would be outlawed. Fat tort would surely mean the end of trick-or-treat. Would your mom have to answer for multiple counts of birthday cake? Would people who got fat exclusively on health foods be disqualified as plaintiffs? Would photographers who take pictures of luscious desserts be singled out for extra punishment? Would cake photos bring greater penalties than broccoli photos? What if there’s hollandaise on the broccoli?

Where will the First Amendment be, during this litigation? The publishers of those magazines with articles like, “Burn fat while you eat a ton of chocolate!” would seem to have a defense in freedom of speech. And, what about a religious defense? We can’t persecute every Jewish grandma or Catholic school nun who ever mentioned “children starving in Europe.” What happens on Yom Kippur or during Lent?

Finally, how do you know which calorie made you fat? Was it the fruitcake or the celery? There isn’t much besides water that’s immune from prosecutorial zeal. How does the court assign proportionate liability among a lifetime of meals? Because the net effect of food is cumulative, which bite was the tipping point?

Silly litigation like this turns courts into comedy clubs. For integrity’s sake, let’s resist any offer to sit at the table with lawyers offering a bite of the obesity tort.

Michael S. Victoroff, MD, is a family practitioner in Denver.