Asymmetrical Information

Any lawsuit like this could have some very unintended consequences. There is an underlying assumption that the science of nutrition is well understood and settled. It's not and in fact appears to be rather unscientific. There is no clear connection between the amount of fat you eat and how fat you are. To the naive it's obvious, eat more fat, grow obese. But a deeper look at human metabolism doesn't make this connection. It seems to have a lot more to do with your intake of sugar and carbohydrates and what's known as the glycemic reaction that triggers the body's storage of excess calories as fat. There is a nice popular article about this (July 7, 2002, NYT Sunday Magazine, What if It's All Been a Big Fat Lie?) by the science writer Gary Taubes. It could just be that protein and fat are ok and the carbs are bad for you. In which case, it should be the National Institutes of Health and the CDC that get sued for the obesity epidemic. They're the ones who recommeded that we eat a low fat high carbohydrate diet.

Megan:

Doesn't it seem that sometimes people wake up in the morning and think "you know, my ill-thought opinion really does matter!" And them promptly set finger to keyboard, only to get a very rude awakening when the hangover wears off. Some of those letters, though, looked suspiciously as if they were written by Hauser.

re: tobacco. the big breaks in the case came when local governments sued to recover the externalities imposed on them by the cost of smoking. sounds like fine economic policy to me -- if we can't have single payer health care, so the cost of health care for uninsured poor smokers falls on taxpayers, why shouldn't government seek to recover from those enriched by the smoking?

also, please compare this post with the one below about smoking vs. sex. does this suggest that nicotine might be addictive?

the tobacco companies litigated for DECADES against individual smokers, never settling. why do you think they suddenly caved because a bunch of state ag's had hired some good litigators. last i heard, the stone wall on not producing documents cracked, and the state ag's had piles of documents confirming that the tobacco companies knew that their product was addictive, yet lied repeatedly about the addictive nature. Knowing one thing and saying another is called lying or, in legal terms, fraud.

Find some lawyers, lefty or righty, who know more about the theories that lead to the big multi-state settlement. The tobacco companies have an ungodly (literally) cash flow and could have funded litigation forever. They quit because goint to trial could have bankrupted the industry and they got a great settlement.

Now, lets apply this to McD. Assume, hypothetically, that McD did studies many years ago how to get people to eat more fries. Assume the study suggested that fry consumption increased when a particular recipe was used, but the data also showed that a small group of people become addicted to fries. Assume that McD put the recipe into use, but never told anyone that they knew that people could become addicted.

Now, assume that someone is claiming that he is an addict, and his addiction is causing obesity, diabetes, heart disease etc. Assume he doesn't have any proof of the above facts, but he thinks they might be true so he wants to conduct discovery. Do you even let him into court, or does he have to make a further evidentiary showing before he can go forward? If he can't even get into court (because it's CLEARLY a frivolous lawsuit), then how can people learn that McD made the conscious decision to make an addictive product without notifying the public?

If he is allowed to go forward with the case, what do you see is the appropriate outcome? Liable? Not liable?

There certainly are frivolous lawsuits brought in the product liability context, but for every study showing how product liability is killing this country, I see another one minimizing the impact. (I think cooped up did a story on this; I'll have to check.)

But if you want to live in a world with less regulation, then you should anticipate and encourage this kind of lawsuits. Whether it's the location of a mounting bolt on the Ford Pinto between the bumper and the gas tank, or all the corporate securities litigation brought by Bill Lerach, or (some of) the toxic tort litigation, punitive damages exist to protect society. We should expect, indeed require, corporations to act in the cruelest and narrowest of their self interest, subject always to the risk of litigation should they make a defective product.

p.s. final hypothetical -- autism turns out to be two diseases, one which develops during pregnancy and one that develops in early stage infancy. Thimoseral is shown to be a trigger of the second kind. Eli Lilly is shown never to have analyzed the total amount of mercury that they were injecting into infants. Had the calculation been done, thimoseral could have been made safely. Tens of thousands of kids are autistic when they didn't need to be, but our friendly Bush admin has protected Lilly from liability. Correct societal result?

Mmmm. "Fast food lawsuits will probably not involve terrorists, and almost certainly will not kill thousands of people."

Threats of outrageous liability claims unbacked by any scientific evidence means that companies are scared of from investing in new products. This is especially the case in areas like biotechnology (Monsanto) and medical products (Dow Corning)

Our previous decades of new technology mean that thousands of people are kept alive that would previously have died.

Stopping this development would probably result in thousands of deaths that would otherwise be preventable.

Therefore fast food law suits may well kill thousands of people.

FDL, I was following your line of reasoning right up until the point you went for the cigarette analogy. Even after chewing twenty-five times I'm having MUCH trouble swallowing that.

Whatever the tobacco industry did or did not say, it was possible long before the recent big settlements for Joe Citizen, who believed the manufaturers were lying, to (a) buy a pack of cigarettes, (b) have them tested by a chemist and discern that they contained nicotine, and then (c) review the literature discussing addictive effects. He or she could then bring that evidence back to bear in suing the cigarette manufacturers for fraud.

The possibility that McDonalds should fall under the same kind of scrutiny for french fries (without any particular reason to believe that fries contain an adictive agent aside for their smooth oily goodness, which is a personal discipline issue) is reaching a bit, don't you think?

IIRC in Germany a man tried to bring a fast-food suit to court shortly after the US version was filed. The judge turned it down and jailed him for sixty days as penalty for making a mockery of the court's function.

Patrick: It can and DOES go both ways. Have you followed the rBGH (recombinant Bovine Growth Hormone by Monsanto) milk controversey at all? The reportedly lax "visa express" program it was given at the FDA?

Yes Megan, why don't you tell us what you think about that article on carbohydrates in the NY Times?

<ducking>

FDL - Correct Societal result? It depends.

According to my only source on this issue, you, Lilly "is shown never to have analyzed the total amount of mercury that they were injecting into infants." Now I am in the realm of wild speculation, but they probably did not check the amount of arsenic, radon, lead, or 100 other things I can't think of was in their drug, either. Perhaps no one reasonably expected mercury to be a problem, just like no one expected kryptonite to be a problem.

Besides being anonymous, I am also lazy. So I have to assume, rather than look up, that Thimoseral, as all drugs in development, was theorized to be good for something, and put through a reasonable clinical trial system which is biased to reject drugs (guilty until proven innocent). During this trial, Thimoseral was shown to be safe and effective, IE it helped in a large number of cases and was shown to be dangerous in a statistically small-enough number of cases. Of course the clinical trials are limited, because of (1) cost, (2) time, and (3) who wants to give an untested drug to more people than absolutely necessary?

Once a larger statistical sample, the general public, was given access to the drug, it turned out that something was missed in the trials. So,
it is of course reasonable to re-examine the drug, to see if something about it is broken but can be repaired, or if the entire concept of this drug was broken and needed to be thrown out. It turns out in this case, according to my source, that Thimoseral was contaminated with mercury, and this is what was causing autism as you mentioned.

Now this is the data that I have: Thimoseral was released to the general public in the US, and enough users of it developed autism to show a statistical link. Furthermore, it is not Thimoseral in general but mercury-contaminated Thimoseral that is the problem. This means either one of two things:

1) The clinical trials were conduced improperly, and didnt catch the autism link when they should have. This case would result in liability on whoever ran the trials, for either negigence or deliberate falsification of data. If this really is the case, those responsible should be punished, and this case bears no further consideration. Liability is obvious.

2) The trials were conducted properly, but the occurrence of autism in the trial group was statistically insignificant.

Let us suppose that these numbers I pull out of the air mean something, and 1 out of 200 users of Thimoseral will develop autism, but the study only used 100 subjects, and none of them drew the short straw. Let us further suppose that 90 users had the expected benefit. And finally let us jump to the absurd conclusion that the sample was representative, and the same proportion of users in the general popluation have the same results.

Now we get to throw the 0.5% of people harmed by Thimoseral on one side of the Scales of Justice, and the 90% who were helped on the other side. Do the scales balance? Which way do they tip? This is a profound philisophical question, and one I am not remotely prepared to answer, since I don't even know what Thimoseral is supposed to treat. But it is plausible that the scale balances towards the 90%, and more people would be harmed more deeply by the absence of contaminated Thimoseral than the presence of it. In this case, the societally correct result is to punish no-one, because even contaminated Thimoseral is better than none at all.

Of course uncontaminated Thimoseral is best of all, and now that the problem is known, it can be fixed and life can go on. The mercury-free Thimoseral is properly assumed safe, until more data is collected and a certain rare type of leukemia in 0.2% of users is traced back to kryptonite-contaminated Thimoseral...

I still stand by most of what I said about the article -- the government, if you actually read their standards, never told us to go eat 60 pounds of sugar. It told us to cut down on fat and meat. We decided that meant we should hoover down six boxes of Snackwells. And I think that if you compare long term mortality for vegetarians and Atkins practicioners, you'll see the vegetarians come out ahead.

"re: tobacco. the big breaks in the case came when local governments sued to recover the externalities imposed on them by the cost of smoking. sounds like fine economic policy to me -- if we can't have single payer health care, so the cost of health care for uninsured poor smokers falls on taxpayers, why shouldn't government seek to recover from those enriched by the smoking?"
Well, several reasons. You can't legally recover from the manufacturer of a product if an intermediate person or entity made decisions about use of the product that caused the harm -- in this case, the decision to light on day after day, year after year. Also, smokers are a net boon to the state treasury, since they tend to die after they retire, but before they get something slow and expensive. Calculations otherwise were made by first including ludicrous estimated working lives, and second, not counting the extra medical costs they would have incurred while they lived -- every smoker was assumed to keep working until 75 when they promptly dropped dead.

"also, please compare this post with the one below about smoking vs. sex. does this suggest that nicotine might be addictive?

the tobacco companies litigated for DECADES against individual smokers, never settling. why do you think they suddenly caved because a bunch of state ag's had hired some good litigators. last i heard, the stone wall on not producing documents cracked, and the state ag's had piles of documents confirming that the tobacco companies knew that their product was addictive, yet lied repeatedly about the addictive nature. Knowing one thing and saying another is called lying or, in legal terms, fraud.

Um, no. It wasn't legally fraud, and that's why no one's pursuing them for fraud. (Also, the statute of limitations has run out on fraud.) If you look at the statements they made, they were not fraudulent; at best you have a "failure to warn" case, except you don't, because those were explicitly pre-empted by the SG's warnings on the pack.

Find some lawyers, lefty or righty, who know more about the theories that lead to the big multi-state settlement. The tobacco companies have an ungodly (literally) cash flow and could have funded litigation forever. They quit because goint to trial could have bankrupted the industry and they got a great settlement.

FDL, I talked to the folks who are supposed to be the leading experts in tort law. What do you know that they don't?

Now, lets apply this to McD. Assume, hypothetically, that McD did studies many years ago how to get people to eat more fries. Assume the study suggested that fry consumption increased when a particular recipe was used, but the data also showed that a small group of people become addicted to fries. Assume that McD put the recipe into use, but never told anyone that they knew that people could become addicted.

FDL, you need to read up on the law. As far as I know, making an addictive product is not grounds for suit. Also, applying the model of addiction to food is problematic, to say the least. We're all addicted to the stuff, and we have a hard-wired compulsion to seek starch and fat -- the main components of french fries.

Now, assume that someone is claiming that he is an addict, and his addiction is causing obesity, diabetes, heart disease etc. Assume he doesn't have any proof of the above facts, but he thinks they might be true so he wants to conduct discovery. Do you even let him into court, or does he have to make a further evidentiary showing before he can go forward? If he can't even get into court (because it's CLEARLY a frivolous lawsuit), then how can people learn that McD made the conscious decision to make an addictive product without notifying the public?

If he is allowed to go forward with the case, what do you see is the appropriate outcome? Liable? Not liable?

Stupid. Medically without basis. I smoked for ten years and was as addicted as anyone -- I quit. Lighting a cigarette and putting it in your mouth is an act of will, no matter how badly you want it. So is walking into McDonalds and ordering a Super Sized Big Mac meal.

Moreover, to make a case that it was fraud, you have to prove that one could reasonably have believed it. The tobacco plaintiffs were losing, properly, because it was common knowlege that tobacco caused cancer. Likewise, it's common knowlege that french fries make you fat. No grounds for relief.

There certainly are frivolous lawsuits brought in the product liability context, but for every study showing how product liability is killing this country, I see another one minimizing the impact. (I think cooped up did a story on this; I'll have to check.)

But if you want to live in a world with less regulation, then you should anticipate and encourage this kind of lawsuits. Whether it's the location of a mounting bolt on the Ford Pinto between the bumper and the gas tank, or all the corporate securities litigation brought by Bill Lerach, or (some of) the toxic tort litigation, punitive damages exist to protect society. We should expect, indeed require, corporations to act in the cruelest and narrowest of their self interest, subject always to the risk of litigation should they make a defective product.

I didn't say all product liability suits were bad. I said that this kind, where the plaintiffs basically abdicate any responsibility for the conduct of their lives, are extremely bad, and extremely dangerous. If we decide that people don't really have any control over their behavior, than any deep pocket is potentially liable for almost anything.

p.s. final hypothetical -- autism turns out to be two diseases, one which develops during pregnancy and one that develops in early stage infancy. Thimoseral is shown to be a trigger of the second kind. Eli Lilly is shown never to have analyzed the total amount of mercury that they were injecting into infants. Had the calculation been done, thimoseral could have been made safely. Tens of thousands of kids are autistic when they didn't need to be, but our friendly Bush admin has protected Lilly from liability. Correct societal result?

Gee, I don't know. What about the government agency that's in charge of setting the standards? Shouldn't they be checking?

Also, while the vaccines (barely) breached the lowest standard the government has, it was well within all the others, such as the FDA's, the agency that regulates Lilly. Almost certainly, they'd win on appeal just based on that.

re: Thimerosal:

just noting that Derek Lowe has thimerosal stuff here and above it. He, in fact, doesn't agree that Thimerosal has a persuasive autism link.

Thimerosal stuff I do have, and I'll return to the issue as I get more data. I should note that "Anonymous Coward"'s comment above rests on two faulty assumptions - first, as Chris noted, that there is any statistical link between autisum and thimerosal. So far, there isn't. FDL's earlier comment positing a type of autism triggered by (among other things) thimerosal isn't a crazy hypothesis, but there's just no evidence for it (and accumulating evidence against it, in the case of thimerosal itself.)

Secondly, there's no such thing as "mercury-contaminated thimerosal." Thimerosal is a mercury compound. Its whole mechanism of action (as a preservative for vaccine preparations) depends on it containing mercury and being toxic to microorganisms that might start to grow in the vaccine.

If our only two choices really are (a) regulation by executive-branch agencies staffed by subject-matter experts, subordinate to a democratically elected President, and granted their authority by a democratically elected Congress, and (b) ad-hoc regulation by untutored and unelected juries looking for excuses to give other people's money to sympathetic plaintiffs, my vote is for (a).

For at least some questions, such as whether or not there should be french fries, I'd like to think that (c) None of the above would at least be considered.

Heaven defend me from the debate being waged here.

What I'd like to note is that Professor Galbraith (the Northern, elder one) must be rejoicing. Explicitly in some of the tobacco cases and I think at least implicitly in cases like McDonalds is the view that, whatever else a corporation does, its advertising is an effort to change my behavior that is so overwhelming, I must submit. There is the "save me from myself" notion, but it isn't just myself. The notion is that we are being urged toward consumption, regardless of our own good, by fat and nicotine vendors (and slimness vendors and violence vendors...). Galbraith thought such urging was central to our society, and not a good thing. In that view, the the slogan is really "Save me from myself after you get done programming me or I'll sue you." It still comes down to whether you believe we have what it takes to make up our own minds, withstand social and Madison Avenue pressures, make informed choices unswayed by the strategems of corporate marketers, or are really pretty pliable. That, I suspect, will remain the subject of speculation and unsubstantiated personal conviction for some time to come.

Jane:
the evidence of the cost of smoking cuts both ways -- although people die younger (and reduce costs largely on the federal treasury), they do tend to run up a bill or two along the way, largely on state and county treasuries. this includes direct costs, like medical care, and indirect costs, like lost productivity and medical costs imposed on the recipients of secondary smoke.

fraud can be both speaking falsely, and failing to speak completely when one does speak. while i don't have the case law at my fingertips, i believe that the defense theory that the SG warnings, being mandated by law, relieved the tobacco companies of the duty to speak completely truthfully was defeated. so there were both failure-to-warn liability and disseminating-imcomplete-information liability theories.

re intervening use that caused the harm. the flip side of that statement is that liability can pass through if the product was used in the intended manner.

re making an addictive product. Well, that's the whole point of these cases, isn't it? Congratulations on quitting smoking. I'm sure your success will be case study number 1. The point is not whether YOU could quit smoking, the point is whether, as a matter of social policy, we should attach liability to those who make products which are addictive and cause harm by that addiction.

So, what is addiction? What does it mean when Jane can quit smoking but others cannot? Can food additives be addictive? Once again, should we, as a society, attach liability to those who cause harm by selling addictive products? Does it matter if the product has a societal value (like food) or causes societal harm (like second-hand smoke)?

I don't pretend to have all the answers, but I am interested in hearing the thoughts of the (usually) interesting people found here.

Note: calling me "stupid" is a really charming argument tactic. hey, its your blog and you can do what you want. but if you want to attract readers who are outside your own echo chamber and are interested in entering into reasoned debate, you may want to avoid the insults. who know, even you might learn something, like how reasonable people can disagree.

Well, the notion that we have no free will and are subject to mass manipulation by clever advertising is wholly consistent with the lefty's screams of "we wuz robbed in Florida!" and "we're being railroaded into war!"... and with many of their managed-society schemes, too.

But why do I get the feeling that those who subscribe to these notions see themselves, individually, as being above such weaknesses?

Doesn't look pretty, does it?

but if you want to attract readers who are outside your own echo chamber

Charming response tactic. She gets criticized quite a lot at times. See also: All four of the recent file sharing threads.

I didn't intend to call you stupid, FDL; I intended to call a verdict against McDonalds stupid. I apologize if I was unclear.

I'm not going to argue with you about the legal liability question; the legal experts I consulted, both Democratic and Republican, none of them known as outspoken trial-lawyer-bashers, said that there was no legal case for liability. If you wish to argue the matter, you may take it up with them.

Nor do I think there should be. Ask any smoker who's quit and they'll all tell you the same thing: the reason they didn't quit before was that they wanted to smoke more than they wanted to quit. The people who sued are jerks who knew for forty years or more that what they were doing was extremely bad for them. They chose to smoke anyway. I don't think, as a practical or a moral matter, that we should reward people for being jerks. What the "hidden" studies amounted to was failing to inform smokers of facts that the surgeon general, the schools, the public health community, and pretty much everyone else, were shouting at the top of their lungs. The kind of lawsuit you're talking about -- failure to provide complete information -- is not fraud, but misleading information. Like failure to warn, this was legally precluded by the surgeon general's warnings. As I said above, There was no reasonable basis for believing that cigarettes didn't cause cancer, which was what the litigants alleged. Including a nurse who wished us to believe that she somehow got through nursing school and years of working in a hospital without ever being informed of the negative health benefits of cigarettes.

Secondary smoke is a minor hazard, localized to people who work in extremely smoky environments for a very long time (stewardesses are the only group with a statistically significant link), and people who live with smokers for same. Because of the attenuated risks from secondary exposure, this is a fiscally trivial group.

Almost everyone who lives long enough to get lung cancer is going to consume medical resources when they die; it is the young folks who get into car accidents and kill themselves rock climbing who die on the cheap in this age of advanced medical treatments.

Lung cancer is cheap to die from compared to later diseases such as Alzheimers, Prostate Cancer, heart disease, etc., particularly because it is relatively early onset. I'm sorry, I walked through some of the calculations, and they're just crap. You can go do the same if you want to argue about them with me, but otherwise it's just quibbling. It's simply not in question that people in their late 70's and 80's consume many, many more resources, medical and other, than people in their sixties and early seventies, which is the typical mortality for lung cancer. They also leave much smaller estates, depriving the states of taxes.

Social policy is not enacted through the courts, but through the legislative branch. If we want to tax cigarettes, or make them illegal, we should do so. Liability is meant not to enact social policy, but to assign responsibility for things that go wrong. I'm not going to assign that responsibility to a corporation when in order for the misfortune to happen, someone had to spend forty or fifty years setting things on fire and inhaling the smoke twenty or thirty times a day. Or go to McDonalds and snarf down a couple of supersize meals every day.

Jane,

1. If you eat less fat and protein, you have to eat more carbohydrates since your body has a minimum natural caloric requirement and you have to eat something. Unless you're a supermodel.

2. Even the best diet and exercise only extends your life by a few months. So whether you choose Atkins or become a vegetarian, all you're choosing is whether your dog or your goat like your garbage. And I should pass on what I once learned from a doctor: your intestine was designed for a carnivorous predator that had to make do with green stuff now and then when hunting got tough.

Paul,

Even the best diet and exercise only extends your life by a few months.

Uh...you base this claim on what?

pass on what I once learned from a doctor: your intestine was designed for a carnivorous predator that had to make do with green stuff now and then when hunting got tough.

That sounds suspiciously like a doctor who was foisting his own philosophical view on top of what medical science knows about the intestine. Did he have an explanation to get around the possible links between low-fiber diets and intestinal cancer?

re the veggie vs no veggie diets...

look at your teeth!!!

now look at your dog/cat's

now find a goat/cow and look!

so we're in between (them dog and cats have SHARP teeth) and should have a mixed diet (if you want bigger difference, look at piranha/shark.. they're really carnivorous)

and veggies may live longer, but that's if they don't kill themselves first due to boredom, and having to eat tofu/bean curd!

and for the "months" only thing.. there are some studies that show veggie with extreme calorie restriction can add significant percentages (like years or decades) onto one's life (so far study has been on ice, but its enormous if the percentages translate).. thing is calorie restriction == starvation diet (okinawans are renowned for long life and a really crappy level of caloric intake... you may live to 100 but it'll feel like 200 when you're starving all the time)

FDL... I'm addicted to dihydrogen monoxide... it's deadly, carcinogenic, and i crave it! can i sue pepsi, coca cola, and evian for addicitng me to it???

can i sue air liquide for addicting me to nitrogen and oxygen??

product liability: product doesn't due what you say it'll do, product breaks and causes injury...

we need to amend the rules so that if what you do foreseeably led to the end you came to, it's your own damn fault for being an idiot...

There's a high correlation between saturated fat consumption and heart disease and breast cancer. The biggest source of saturated fat is. . . meat.

Plus, I actually like being a vegetarian. I feel much better when I'm not eating meat. And a nice side effect is that vegetarians weigh, on average, 35-40 pounds less than other Americans when you control for age, income, etc.

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