The Cheeseburger Bills – Food For Thought
It seems hard to believe that people suffering from obesity could demand compensation from fast food chains. Surely there must be some personal responsibility for choosing to regularly eat food that is known to be unhealthy and laden with calories?
This question has plagued the US government over recent years, where fast food litigation has begun to take hold. There is speculation about whether Australia will follow suit.
One of the most well known cases in the US is Pelman versus McDonalds. The Pelman children sued McDonalds for their obesity and health problems. Their main argument was that the fast food chain had engaged in deceptive conduct; misled them. The Pelmans couldnt successfully prove their claim, but a key issue arose.
Although he dismissed the case, the Judge indicated that there might be something in the idea that a fast food restaurant could be found as negligent if their food was so genetically engineered that the end result was quite different to what people expect from food. If so, they would need to warn consumers. This could open up a can of worms for future obesity claims.
In NSW, the Civil Liability Act uses the term, obvious risk. Companies dont have to warn consumers about a risk that is obvious. The health dangers associated with eating too much fast food are well known. But if food has been processed so much it is no longer what it claims to be, is the risk obvious?
Recent changes to Australias Trade Practices Act mean that people can no longer seek compensation for personal injury if a company misleads or deceives them; that avenue has closed for future obesity claims.
And unlike in the US, Australian lawyers must prove a client has suffered injury when they commence proceedings. Claims must generally be filed within 3 years of the problem being discovered, with an absolute limit of 12 years from the actual injury, so by the time obesity-related illness had developed it may be too late to claim.
Add to that the difficulty proving that eating fast food has played a key role in causing the injury, when it is well known that many other factors can cause obesity.
Jnana Gumbert, President of the NSW Australian Lawyers Alliance and Director at Stacks/Goudkamp, says, The future of fast food litigation is uncertain. But if food ceases to be food as we know it, proper warnings would seem crucial.
The United States introduced two personal responsibility bills, nicknamed the Cheeseburger bills, designed to halt obesity claims. They werent passed, but they may indicate the governments future position. Certainly, recent litigation in Australia has focused on personal responsibility.
Perhaps the mere threat of litigation is enough to keep fast food chains honest, meaning better labelling, and proper warnings.