Public Health Advocacy Institute
The Public Health Advocacy Institute (PHAI) is a lawsuit lounge where food cops and trial lawyers swap strategies to litigate away consumers’ food choices.
Located in Boston with a board composed of faculty members from the Northeastern University School of Law and Tufts University School of Medicine, PHAI’s goal is to attack food makers through lawsuits. Along the way, it is creating the next huge payday for trial lawyers, who are trying to demonize popular foods by using their template for attacking tobacco.
In addition to publishing papers laying out a game plan for fat lawsuits against food makers, PHAI’s main contributions to America’s growing anti-obesity jihad are its conferences, euphemistically titled “Legal Approaches to the Obesity Epidemic.” PHAI’s first conference, held in June 2003, was “intended to encourage and support litigation against the food industry.” The second conference, held in September 2004, was similarly motivated. Richard Daynard, director of PHAI’s Obesity and Law project, bragged to the New York Times in April 2004 that PHAI itself “will file suits against the food industry within the year.”
Shortly following its inaugural litigation-pushing confab, PHAI threatened eight large food companies with legal action. The group demanded food makers do the impossible — or else. To prevent costly lawsuits, PHAI warned, companies would have to prove that their actions had actually reduced obesity across the entire U.S. population by affecting Americans’ “buying and consumption of fat, total calories, and other contributions to obesity.” Food companies, in other words, could only get off the lawsuit hook by forcing consumers to change their behavior. What those consumers actually wanted was of no consequence.
None of this sits well with the American people. Michael Jacobson, president of the self-described “food police” at the Center for Science in the Public Interest (CSPI), followed up his speech at PHAI’s 2003 event by proclaiming: “Consumers deserve to have their day in court if they believe that the foods they ate contributed to obesity and related diseases.” But just a week later, a Gallup poll showed that only 9 percent of Americans favored obesity lawsuits.
Who are the people behind PHAI? The group’s chairman, Anthony Robbins, told the Boston Globe that “Public health is more like police work than it is about medical care.” According to the American Lawyer, Daynard was called “greedy” by his fellow trial lawyers, after he took them to court for a larger piece of the tobacco litigation pie. Board member Mindy Lubber runs an investment firm tied to the Ralph Nader-founded state Public Interest Research Groups (PIRGs). Another board member — PHAI’s former executive director, Ben Kelley — was instrumental in perpetrating what the Los Angeles Times called “the biggest TV scam since the Quiz Scandals” when he ran a front group for trial lawyers looking to sue automakers. And PHAI “managing attorney” Jason Smith is a board member of the Massachusetts chapter of the National Lawyers Guild, a radical group that named cop-killer Mumia Abu Jamal as an honorary “national vice president” in 1995.
This may sound like a motley crew of unlikely tort warriors. But at the end of PHAI’s 2003 conference, the group formed five committees — including one to promote obesity lawsuits among major law firms. In other words, PHAI was going lawyer shopping.
Addicted to Lawsuits
PHAI wouldn’t have much of a conference on obesity lawsuits without George Washington University law professor John Banzhaf, who claimed at the 2004 conference that he started the fast-food lawsuit movement when a reporter called him in 2002 and he prattled on about supposed similarities to tobacco cases. Banzhaf — who served as a legal advisor to fast-food plaintiffs in 2002 and 2003 — justified his position at the 2003 National Food Policy Conference, held by the Consumer Federation of America. At that event, Banzhaf railed: “I can’t sue to make people exercise more … But we can do something about fast food.”
While the public overwhelmingly opposes blaming restaurants and food companies for the nation’s weight, Banzhaf warned New York Daily News readers: “Somewhere there is going to be a judge and a jury that will buy this, and once we get the first verdict, as we did with tobacco, it will open the floodgates.” At the 2004 PHAI conference he reiterated: “When lawyers see how lucrative these are they will all join in.” He also insisted to CBS Sunday Morning: “We’re going to sue them and sue them and sue them.”
In true ambulance-chasing fashion, Banzhaf even broached the notion of suing doctors for not trimming down their patients. At the 2003 conference, he asked: “Can physicians who do not advise overweight or obese or morbidly obese patients to lose weight, to take reasonable efforts to help them do so, might ought [sic] to be subject to malpractice action?” He made the exact same point at the 2004 conference, saying simply: “Let’s sue some doctors.”
Banzhaf’s target list is long. At one point during the 2003 conference proceedings, PHAI director Anthony Robbins interrupted Banzhaf to question whether he really advocated a system that could pit “fat people” against “thin people.” Banzhaf’s reply? “Absolutely.”
Parents are also in Banzhaf’s crosshairs. He suggested to the 2004 conference participants that they “go after parents with TVs in their [kids’] rooms.” Parents who allow children to become obese, Banzhaf insisted, should be disadvantaged in custody cases, just as a parent’s smoking habits have been included in some custody agreements.
The wacky legal theories don’t stop there. Banzhaf has threatened to sue the Seattle School Board — and individual school board members — for making soft drinks available to teenagers in school. He raised the possibility again at PHAI’s 2004 conference. He has also discussed going after milk producers because the famous “Got Milk?” ads don’t always mention the benefits of skim milk.
While Banzhaf wants to sue food companies for supposedly making Americans fat, he has also promoted lawsuits against Weight Watchers for trying to do the reverse. In January 2003 Banzhaf argued the company shouldn’t be allowed to charge customers for basic nutrition information. “Everybody knows that if you want to lose weight, you eat less with less calorie input and more exercise,” he stated.
At the 2004 PHAI confab, the assembled food cops discussed Banzhaf’s favorite question in a session titled “Are Some Foods Addictive?” Just two days before the 2003 conference, he sent letters to six fast-food chains demanding that they display “warning” notices about the allegedly “addictive” nature of fatty foods. Otherwise, he said, they could expect a big fat lawsuit. Banzhaf even claimed that fast food “can act on the brain the same way as nicotine or heroin.”
Apparently some at PHAI take Banzhaf’s farcical notion seriously. In an article accompanying the 2004 conference, Daynard and his co-authors complained of supposedly “addictive high calorie sodas.”
A primary source of the “food addiction” theory is the misnamed Physicians Committee for Responsible Medicine (PCRM), the medical front-group for People for the Ethical Treatment of Animals. PCRM president Neal Barnard’s contribution to the cause is an aggressive effort to convince an unsuspecting public that meat, cheese, and chocolate are “addictive.” Barnard told a 2003 FDA panel that cheese is merely “dairy crack … the purest form of the drug [milk].” Barnard’s name also appears four times in the plaintiff’s brief as an “expert” source in one of the obesity cases Banzhaf advised.
PCRM sent its top legal counsel, Mindy Kursban, to the inaugural PHAI meeting and nutritionist Amy Joy Lanou to the 2004 gathering. Former PCRM analyst and 2004 PHAI speaker Michele Simon has also endorsed the addictive foods farce.
At the end of PHAI’s 2003 conference, board member Richard Daynard insisted that the movement needed a “master script,” and he stressed that lawsuits might fail without broader support. He suggested a combination of grassroots organizing, boycotts, and shareholder activism, all tied together with celebrity spokespersons. “Political will is everything,” Daynard told Seed Magazine. “The majority of judges and jurors are also parents.”
Part of PHAI’s public-relations strategy is to apply the tactics that made Daynard and Banzhaf successful in suing tobacco companies, including the creation of groups like PHAI. As recently as November 2003, phone calls to a number distributed during PHAI’s first conference were directed to a recorded message from the Tobacco Control Resource Center — a parallel organization run by Daynard.
Daynard’s fellow trial lawyer, Banzhaf, told the 2004 conference that despite lacking a real legal success, PR tactics were working. “We’re doing well and we’re ahead of schedule,” he said.
Employing his old PR tricks, Daynard knew the media frenzy over our national weight gain provided the right backdrop for promoting ridiculous lawsuits. He told Fortune magazine: “What persuaded us was, in a sense, the media. This thing is so radioactive in terms of media attention that cases will bring in other lawyers and bring in other cases.”
Publicity is just about the only thing 2004 conference speaker Stephen Joseph was seeking when he brought an absurd lawsuit to prevent Kraft from selling its Oreo cookies to anyone under the age of 21. After Joseph admitted his suit was mostly a publicity stunt, the Chicago Tribune reported that the British-born lawyer was “criticized in legal circles for possibly abusing the U.S. courts system.”
Daynard and Robbins co-authored an article called “Food Litigation: Lessons From the Tobacco Wars,” in which they write: “In the absence of proof that particular food industry practices cause obesity, suits seeking compensation for obesity-related injury are unlikely to succeed.” For most people, that would mean “case closed” — but not for greedy trial lawyers and control-starved public-health zealots.
That’s where William Dietz of the Centers for Disease Control, scheduled 2003 and 2004 PHAI speaker (though he became a last-minute no-show at each), comes in. In April 2003 he published an article in the American Journal of Clinical Nutrition that amounted to a collection of lessons from demonizing tobacco for obesity policy, including greater research into which specific foods supposedly cause obesity.
Personal Responsibility: MIA at PHAI
PHAI supporters don’t believe that consumers are smart enough to make their own food decisions. PHAI director James Hyde told conference attendees that personal responsibility is a “myth.” Robbins seems to believe that human beings have no more decision-making ability than animals, telling the Rutland Herald in 2003: “We’re being fattened like a herd.” In a 2003 article in Poverty & Race, Robbins, Daynard and PHAI director Wendy Parmet extol “public health professionals who know that overweight and eating habits are not principally a matter of personal choice.” (When asked by a reporter in 2003 how he lost 25 pounds, Daynard simply said: “I ate a lot less.”)
PHAI’s invited speakers sing the same anti-personal responsibility tune. “With so many mothers working,” Philip James told PHAI trial sharks, “I think maybe we need to highlight the role of the ‘Nanny State.'” James, a 2003 and 2004 speaker and head of the International Obesity Task Force (IOTF), would replace parents with big government. Complaining to news outlets about “high-pressure marketing” to children, he claimed that “the idea that you can have a modified system, or that parents should control it, is nonsense.”
In an article accompanying the 2004 conference, James and his IOTF colleagues Neville Rigby and Shiriki Kumanyika argued: “This ‘personal responsibility’ approach has … clearly failed.”
Scheduled 2004 PHAI speaker Margo Wootan (who canceled at the last minute) urged a different public-health conference to “move beyond personal responsibility.” PHAI speakers Marion Nestle and Kelly “Big Brother” Brownell declared in TIME magazine that “personal responsibility is a trap” and “a failed experiment.” And, of course, there’s always Banzhaf, who whined in 2003: “All these platitudes about, ‘people should eat less,’ ‘responsibility,’ all this crap!”
Food Cop Influence Abounds
The Naderite spin-off group CSPI has a food-enemies list a mile long. If the group had its way, edibles from waffles to wine would be taxed, labeled and/or banned. CSPI’s Jacobson is a cheerleader for lawsuits, arguing at PHAI’s 2003 conference that it’s “going to take a whole lot of lawsuits” to trim people down. He told the gathering: “I’m not on the fence … about litigation. I think it’s an extremely important strategy. I’m excited to see some litigators, including John Banzhaf and others, in the room.”
Jacobson was even helpful enough to suggest possible litigation targets, including companies that advertise some foods to children, and restaurants that don’t stick nutrition labels on virtually everything they sell. In typical CSPI fashion, Jacobson took a bad idea and made it even more ridiculous: “Should schools be promoting health or disease? … they’re not allowed to read pornography in English class — should they be allowed to have sodas in the hallways?”
At the 2004 conference, CSPI’s “legal” influence was in full force, fielding four litigation-loving speakers. Jacobson was joined by CSPI “legal advisor” Ellen J. Fried and Steve Gardner of the newly-minted “CSPI Litigation.” Gardner titled his presentation “Patience, hell. Let’s sue somebody” and boasted in his speech: “We can sue anywhere we want to and we will.” According to Obesity Policy Report, that phrase “accurately captured the mood of the audience.” According to that publication, Gardner departed saying, “If you want to sue, call me.”
Jacobson teamed up with Banzhaf in July 2003, threatening lawsuits against six ice cream retailers. The duo warned that unless their stores provided calorie counts on the menus, they would be slapped with suits.
Viewers of Dateline NBC had no idea they were witnessing a fraud. An American company had no idea that a faked explosion on that show would result in them paying more than $100 million in a bogus lawsuit. And nobody knew much about PHAI board member Ben Kelley.
In 1993, as president of a trial-lawyer front group, the Institute for Injury Reduction (IIR), Kelley was instrumental in staging what the Los Angeles Times called “the biggest TV scam since the Quiz Scandals.” Unknown to viewers of Dateline NBC, model rocket engines were attached to the gas tank of a General Motors pickup truck and detonated by remote control, in order to ensure an explosion during a videotaped test collision.
Following the Dateline episode, Kelley bragged in a memo from IIR that he had personally introduced NBC to the contractors who staged the explosion. Because NBC owned the footage from that demonstration, Kelley asked his trial lawyer sponsors for more funds to tape a second staged explosion that would be made “available for public dissemination and litigation use.” A jury later decided that GM should cough up $105 million in damages, even though the National Highway Traffic Safety Administration showed that the trucks in question were actually safer than the average car on the road.
That wasn’t Kelley’s first use of show-biz ethics. He also appeared as an on-camera expert in a CBS “60 Minutes” segment that implied a Jeep was prone to flip over during “fairly gentle” turns. But to get the Jeep to flip, the crash-test dummies inside had to turn the steering wheel at least twice as fast as can be expected for normal drivers in an emergency. The dummies were also accelerating during the turn, and heavy weights had been strategically added to make the Jeep more likely to flip.
Kelley appeared in another “60 Minutes” segment in which a truck’s wheel rims were filed down — again, viewers were in the dark — in order to make the phony case that they were prone to explode while the tires were being filled.
How did Kelley get so much press attention for his staged crashes and explosions? His trick was to send the networks “video news releases” that included damning but deceptive footage.
It’s pretty hard to shame trial lawyers, or their PR flacks, but just months after PHAI hosted its 2003 “Legal Approaches to the Obesity Epidemic” conference, Kelley’s history was revealed. He stepped down as executive director of PHAI. But he apparently couldn’t leave an organization dedicated to frivolous lawsuits. He is now back on the obesity attack at PHAI.
“We’re not doing this to make trial lawyers rich,” insisted Richard Daynard at PHAI’s 2003 conference. This from a man who, according to Boston Magazine in 2003, “got more than $1 million” for his tobacco attack, from which he draws inspiration to assail food. And Daynard later sued two attorneys for a bigger share of litigation settlements, claiming he made a handshake agreement for five percent of a multi-billion-dollar windfall in legal fees. Rebuffing this money grab, Daynard’s fellow trial lawyer called him “greedy.”
Daynard’s altruistic spin is rejected by the omnipresent obesity shark John Banzhaf, who told CNBC: “The very fact that lawyers are going to be making money out of [suing restaurants] is exactly what we’re counting on, ’cause that’s what made it with tobacco.” At the 2004 conference he reiterated: “When lawyers see how lucrative these are they will all join on.”
Banzhaf’s been eyeing a dollar figure, too. Citing a deeply flawed but commonly used measure of the annual cost to Americans from obesity, Banzhaf offered TIME magazine a ball-park estimate of the ransom he seeks: “A fast-food company like McDonald’s may not be responsible for the entire obesity epidemic, but let’s say they’re 5 percent responsible. Five percent of $117 billion is still an enormous amount of money.” According to a 2003 report from the London Observer, Banzhaf has since upped this figure to $50 billion.
Banzhaf likes to claim that he made no money from his attacks on tobacco. But he runs the non-profit Action on Smoking and Health, for which he takes a salary and benefits in excess of $200,000 — on top of his salary as a law professor. Now Banzhaf says he’s not pushing food suits to get rich.
Consider some of the lawyers who attended PHAI’s conferences. The list includes two attorneys from Hancock Rothbert & Bunshoft, one of whom presented a paper titled “Innovative Theories in Class-Action Litigation: New Wine in Old Bottles” to the Georgetown University Law Center’s Fifth Annual Mass Tort Litigation Conference; an attorney from Rodman, Rodman & Sandman, a Massachusetts personal injury firm that gives out coupons; a lawyer from Habush Habush & Rottier, “Wisconsin’s oldest and largest law firms concentrating its practice in the area of personal injury law”; the top medical liability analyst for the Ralph Nader-founded Public Citizen; and two lawyers from the product liability firm Perry Haas.