August 26th, 2013
Cheeseburger Bills or Common Sense Consumption Acts (CCAs) were spearheaded by the National Restaurant Association as well as the American Legislative Exchange Council (ALEC) and have been enacted in 26 states. Media coverage and legislative debates about CCAs were dominated by themes of personal responsibility and the need for tort reform to protect businesses from frivolous litigation. A recent study just published in the Food and Drug Law Journal by PHAI’s Cara Wilking, J.D. and Richard A. Daynard, J.D., Ph.D. analyzes the
25 CCAs enacted between 2003 and 2012, and found they go well-beyond tort reform. Key findings from “Beyond Cheeseburgers: The Impact of Commonsense Consumption Acts on Future Obesity-Related Lawsuits” include:
- The majority of CCAs (16 states) may be interpreted to confer broad civil immunity for claims seeking to recover for health harms stemming from long-term consumption of food.
The CCAs enacted in nine states (Alabama, Colorado, Georgia, Idaho, Illinois, Michigan, Missouri, Oklahoma and Tennessee) impose a limitation on the kinds of cases government attorneys can bring by specifically referencing governmental entities when defining the reach of the statute.
- Six states (Alabama, Georgia, Kentucky, Texas, Oregon and Washington) explicitly protect the authority of governmental entities to enforce certain food-related laws.
- Thirteen states impose substantial procedural barriers such as heightened pleading requirements and stays of discovery for covered obesity-related claims.
- All states had laws to guard against frivolous litigation in place prior to the enactment of CCAs.
The health harms of tobacco are well-known and linked to corporate misconduct. In the late 1990’s, tobacco litigation brought by State Attorneys General resulted in individual settlements by four states to recover smoking-related Medicaid costs. Forty-six states and territories negotiated the Master Settlement Agreement securing annual payments of several billion dollars in perpetuity as repayment for smoking-related healthcare costs.
Between 2008 and 2010, adult obesity rates increased in a total of 16 U.S. states, 11 of which are CCA states. The CCA states of Alabama, Louisiana and Tennessee are among the top five states with the highest rates of obesity, diabetes and hypertension. The current medical cost of adult obesity in the U.S. is estimated at $147-$210 billion per year, $61.8 billion of which is paid for by Medicare and Medicaid (Levi et al. 2012). The twenty-sixth CCA was passed in North Carolina in 2013 and they continue to be introduced in state legislatures. “A close analysis of CCAs reveals that the real point of the CCA proponents was not to prevent frivolous litigation, from which industry already had plentiful protection, but rather to limit legally and factually sound tobacco-style litigation, which might eventually have harmed industry’s bottom line and forced it to change its practices,” said Cara Wilking, J.D.
“Beyond Cheeseburgers: The Impact of Commonsense Consumption Acts on Future Obesity-Related Lawsuits” was published in the Food and Drug Law Journal and is reproduced with the permission of the Food and Drug Law Institute.
This research was supported by award #2R01CA087571 from the National Cancer Institute. The content is solely the responsibility of the authors and does not necessarily represent the official views of the National Cancer Institute or the National Institutes of Health.