Addictive by Design
posted by Frank Pasquale
I was honored to see Prof. John Banzhaf weigh in on a recent post on wellness programs. That post suggested parallels between the addictiveness of tobacco, and that of many food products. Little did I know the NYT was about to publish a blockbuster article on exactly that issue:
[In a 1999 meeting of food industry leaders,] [t]he first speaker was a vice president of Kraft named Michael Mudd. . . . As he spoke, Mudd clicked through a deck of slides — 114 in all — projected on a large screen behind him. The figures were staggering. More than half of American adults were now considered overweight, with nearly one-quarter of the adult population — 40 million people — clinically defined as obese. Among children, the rates had more than doubled since 1980.
Mudd then did the unthinkable. He drew a connection to the last thing in the world the C.E.O.’s wanted linked to their products: cigarettes. First came a quote from a Yale University professor of psychology and public health, Kelly Brownell, who was an especially vocal proponent of the view that the processed-food industry should be seen as a public health menace: “As a culture, we’ve become upset by the tobacco companies advertising to children, but we sit idly by while the food companies do the very same thing. And we could make a claim that the toll taken on the public health by a poor diet rivals that taken by tobacco.”
Fast food lawsuits are looking more prescient by the day.
Illustration: Via Engadget article on interactive ad patents.
February 21, 2013 at 2:47 pm
Posted in: Agricultural Law, Culture, Current Events, Economic Analysis of Law, Food, Tort Law
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Responses (24)
Brett Bellmore - February 21, 2013 at 8:01 pm
“but we sit idly by while the food companies do the very same thing.”
You’re right, this is inconsistent. We should cut the cigarette companies a break. I’d much rather do that, than accept that it’s permissible to censor anything professors of psychology and public heath find objectionable.
A.J. Sutter - February 21, 2013 at 9:45 pm
My first thought was that the illustration was NY Times satirical op-ed art. After clicking the link, I see that this is a real invention, from Sony. As a former exec at that company, I am deeply ashamed that it has degenerated so far. Though not entirely surprised, given the professional background of its recent top management. The only silver lining is that this was dreamt up in Foster City (SF Bay Area), not Japan — the latter would have been too tragic. The source patent is US # 8,246,454 (2012/08/21). Shown is Fig. 9; I also recommend Fig. 14, which has a certain Roy Lichtenstein-ish quality to it, in mood if not in skill.
Frank - February 21, 2013 at 9:56 pm
Wow–the entire set of figures is bizarre. The “throw the pickle on the burger” Fig. 8 prefigures some behaviorist-consumerist fantasy, where people oscillate between gobbling fast food and working it off by … enacting fantasies of preparing fast food. Might be a good way to start off a critical review of James Livingston’s “Against Thrift.”
Shag from Brookline - February 21, 2013 at 10:27 pm
So Brett’s libertarian instinct is to eat a Whopper with fries, washed down with a 32 oz. soda, followed by a Pall Mall, and challenge public health objections when companies aim at addicting children with their unhealthy products, with the benefit of his Second Amendment rights, including protecting against perceived censorship (First Amendment speech/press clauses?). Nice attitude for raising a child, Brett. I’ll nominate you for “Mother of the Year.”
Bruce Boyden - February 21, 2013 at 10:41 pm
I’m curious what happens if you yell at the screen, “I’m mad as hell, and I’m not gonna take it any more!”
Brett Bellmore - February 22, 2013 at 6:36 am
Shag, that’s one of the oldest ‘liberal’ rhetorical tics around: When confronted by a libertarian saying people have a right to do something stupid, take it as proof THEY want to do it. Rather than just thinking people have a right to do stupid stuff.
Yes, I’m a 1st, as well as 2nd, amendment absolutist. Guilty as charged.
Shag from Brookline - February 22, 2013 at 6:58 am
Brett’s:
“Yes, I’m a 1st, as well as 2nd, amendment absolutist. Guilty as charged.”
raises the question whether, in Brett’s brain, the Second Amendment in a clash with the First might trump the First. I suspect that Brett’s finger is more itchy than his tongue is twitchy.
As to Brett’s alleged charge of ” … one of the oldest ‘liberal’ rhetorical tics around”, I’d be interested in a cite that has a tad more age than Brett provides. (I thought I took a pretty good “shot” with my First Amendment speech/press clause rights, absolutely.) As for libertarians saying ” … people have a right to do something stupid”, many of those people are self-described libertarians. Q.E.D.
Ken Rhodes - February 22, 2013 at 11:00 am
Shag, your personal vendetta against Brett is becoming tiresome.
I’m at least as far to the left as you are, and what Brett wrote HERE makes perfect sense to me. You are attacking the wrong straw-man, simply because you don’t like Brett.
Instead, why not focus on the real question–why do companies enjoy First Amendment rights … or any other rights specified in the Constitution for persons?
Brett Bellmore - February 22, 2013 at 12:49 pm
“Instead, why not focus on the real question–why do companies enjoy First Amendment rights … or any other rights specified in the Constitution for persons?”
The “Soylent Green” principle: Corporations are made of people. It might not apply, on the day somebody actually finds a way for a corporation to speak or publish without actual people doing the speaking or publishing. But, at present, censoring corporations is merely a way to censor people.
Especially given that the government herds us into the corporate form. For instance, there are no newspapers in the country, so far as I know, which are not corporations. Why? Because the government’s own laws make getting together to publish a newspaper, or engage in any large scale pursuit, legally perilous if you do not do so as a corporation. Kind of iffy to pass laws which have the practical consequence that all publishing will take place through corporations, and then claim that the 1st amendment doesn’t apply because of that effect.
Alternatively, we might note that the 1st amendment begins with the five most beautiful words in the English language, “Congress shall make no law”, and does not explicitly qualify the right based on whose speech or publishing. And so it can be considered not so much a protection of the people, as a prohibition on Congress. Congress can’t abridge freedom of speech or of the press regardless of who is engaging in it.
Shag from Brookline - February 22, 2013 at 3:24 pm
Ken, can I assume that you are an absolutist on both the First and Second Amendments, in the manner Brett claims to be? If so, I cannot accept that you are at least as far to the left as I am. Does it make perfect sense to you that under the law as it presently stands with SCOTUS decisions that both the First and Second Amendments are absolutist? Or is there something else Brett said that you feel made perfect sense.
I have no personal vendetta against Brett. He is a troll at this blog and a couple of others. He has demonstrated his hatred of lawyers. So he takes shots (no, not the Second Amendment variety) at legal blogs that might lean a tad to the left. He is not a lawyer – reminds us of how his life was negatively impacted by a lawyer. He has demonstrated over and over at these blogs the impact of the demographic changes taking place in America.
So, if I am tiresome to you, so be it. You enjoy your First Amendment rights and I enjoy mine. The posters at this Blog and at other blogs Brett trolls at have the prerogative to bar my comments; if they choose to do so, so be it.
I note that you made no comment prior to #8 on this post. I don’t know what your position is on Frank’s post. Perhaps with #8 you are riding Brett’s coattails. Let’s hear from you. Also, take a peek at Brett’s #9. Does Brett have your back? If so, that’s quite a pairing.
And Ken, don’t lose a sense of humor.
Brett Bellmore - February 22, 2013 at 5:02 pm
“Ken, can I assume that you are an absolutist on both the First and Second Amendments, in the manner Brett claims to be? If so, I cannot accept that you are at least as far to the left as I am.”
The amusing thing about this is that there was a time when the left in this country made quite the show of being First amendment absolutists. (The same could be said of the 2nd amendment for elements on the left.) Am I to take it that you mean to confirm the conservative belief that is was only because they expected they’d be the censored, not the censors? That the left only talked about liberty because somebody else held the power?
For the record, I do not hate “lawyers”; There are good lawyers and bad lawyers. I do, however, hate what the legal profession has become. All those jokes about lawyers are no accident.
Joe - February 22, 2013 at 5:34 pm
Eh. McDonalds in the UK in a Goliath v. David battle targeted some activists for libel. That sort of thing is beyond the pale. The hot coffee case had some bite.
Still, cigs and fast food are not the same thing, even though some general public health concern can be cited. I don’t think it would be a good idea to ban the sale of the stuff to minors, e.g., like we do for cigs. We do make health a public health issue, including regulating what is put in school lunch rooms or the like.
I think some of the cig litigation might have gone too far & treating fast food the same way is not ideal. Civil regulation and public health promotion is a better approach than trying to sue fast food for promoting unhealthy diets.
Shag from Brookline - February 22, 2013 at 8:51 pm
When was that time ” … when the left in this country made quite the show of being First amendment absolutists”? Justice Black was a free speech absolutist (at least for a while), but was he a liberal? And what was it that Justice Holmes said about falsely yelling fire in a crowded theatre (in a case that did not involve a fire in a theatre)? As to the Second Amendment parenthetical, that is nonsense.
And Brett is an outlier as a Second Amendment absolutist based upon both the majority and the dissents in Heller. (Scalia made the point in Heller that all rights may have limitations, including the First Amendment.)
As for lawyer jokes, it’s no accident: lawyers have a sense of humor. Now how about that bridge to nowhere?
By the way, when did the the legal profession become what Brett hates about it? Perhaps a professor of psychology might be able to explain Brett’s hatred, what exactly he hates about the legal profession. I’ve been in the profession since 1954 and am aware of changes in the legal profession as there are changes in many fields. (Consider what cad/cam did for engineers in obsoleting their slide rules.)
A.J. Sutter - February 22, 2013 at 11:30 pm
Pace First Amendment absolutists of whatever stripe and even more modest asserters of their rights, I do concur that it’s tiresome and discouraging to find the constant Tom-and-Jerry bickering, chasing and clobbering that weaves through many threads on this blog, Balkinization and who knows where else.
It certainly discourages me from commenting on provocative posts, because the mood of the comment thread has already been hijacked. I’m sure lots of other readers, including scholars far more knowledgeable than I, feel the same way. Participants in this show shouldn’t be under any illusion that what they’re saying is interesting for other readers, or illuminating about the posts in question.
Even if one or another of you does start out with something interesting, it quickly degenerates into tit-for-tat. Maybe for a while each of you should abstain from commenting in a thread where one of your antagonists has already tread, or else ignore that person’s comment and limit yourself to commenting solely on the main post.
Yes, you have First Amendment rights, etc. etc. But people have First Amendment rights to be rude, too. Having rights doesn’t imply that it’s always good judgment to exercise them.
Shag from Brookline - February 23, 2013 at 5:47 am
A.J, perhaps it was interesting to you that the very first comment sought to give a break to tobacco companies. I don’t know about you, but I recall Old Golds advertising its cigs as “Not a cough in a carload.” And the cigs. ads using the medical profession to support what was a drug delivery system but was not subject to the FDA. It took a long time to expose the health hazards of tobacco, fought tooth and nail with plenty of bucks from the lucrative tobacco industry. Maybe you agree that tobacco companies should be given a break. I don’t.
Frank’s post raises serious public health issues. But the comment thread started with give the tobacco companies a break.
A.J., as I noted in an earlier comment, Frank and other posters at this Blog and at other blogs have the prerogative to delete comments – and some have – if they so desire. Perhaps you should directly urge the posters of this Blog and Balkinization to delete my comments because you feel my comments discourage you from commenting on provocative posts. I could care less. Until then, I choose not to abstain, despite your sensitivities.
Now let’s start to address Frank’s point, whether “Fast food lawsuits are looking more prescient by the day.” Maybe this will lead to the full employment of the hated legal profession.
By the way, A.J., I did enjoy your take-down of your former employer in #2, even though it was a tad catty.
Brett Bellmore - February 23, 2013 at 8:02 am
Very well, A.J.: I vow that I will, henceforth, ignore any comments by Shag, in no way responding to him. Let’s see if he’ll do the same.
A.J. Sutter - February 23, 2013 at 10:34 am
Thanks, Brett. I had thought it much better to appeal to what maturity and sense of moderation you each have than to ask the folks who run this blog to adopt draconian measures.
As for any cattiness about Sony, Shag, it’s regrettable and certainly unintended. There are many here in Japan who feel sad about its decline. Sony used to be a great company for aesthetically-sensitive engineering, with top management who understood those fields well. Unfortunately, their CEO succession trajectory has emphasized “monetization,” entertainment and advertising even though these fixations have steadily weakened the company for more than a decade. Even its second-generation president, Ohga-san, was involved in setting the CD standard so that long symphonies could be played without interruption. The patent shown above — deliberately interrupting a movie for commercial “interaction” — would make him and the founders roll in their graves.
Ken Arromdee - February 23, 2013 at 11:22 am
It may be apropos to point out that Goliath was killed by David. Pointing out that some battle is David vs. Goliath does not exactly mean that Goliath is bullying a poor David who has no way to fight back.
Shag from Brookline - February 23, 2013 at 11:50 am
While the illustration involving Sony may be interesting to some (particularly insiders), in my view the thrust of Frank’s post was aimed at public health and the food industry. It isn’t just interactive ads that a Luddite doesn’t mess with, but the tactics of the food industry that appear to parallel the methods of tobacco companies even to this day. It isn’t only nicotine that is addictive. Consider this post: “Are Food Manufacturers Worse Than Tobacco Companies?” at:
http://fitbie.msn.com/2013/02/22/are-food-manufacturers-worse-tobacco-companies?blog_cat=juice-bar
Maybe I’m wrong about Frank’s purpose with his post. But I’m confident with maturity (in my 83rd year) and in moderation that I am not wrong: and we shouldn’t cut the cigarette companies a break. (As I recall, a major tobacco company that was also big in the food industry split up the businesses because of the brouhaha with tobacco companies behavior to salvage market values.)
Public Interest Law Professor John Banzhaf - February 23, 2013 at 12:32 pm
My thanks to Frank Pasquale for noting my work.
Actually there is nothing new about claims and reports that certain foods can cause the same addictive changes and reactions in the body as nicotine, heroin, or cocaine.
See: http://banzhaf.net/docs/miscdocs/FoodAddictionQuotes.html AND
http://banzhaf.net/docs/newsci.html
Also, many media outlets have reported on the concept which I first advanced that failure to disclose the addictive nature of food (even its it health risks were well known) could provide a basis for legal liability, just as several court decisions have held that the failure to disclose the addictive nature of nicotine could result in liability, even if the general health risks of smoking were well known.
See, generally, http://banzhaf.net/obesitylinks.html
Indeed, ten fat law suits have already been successful.
http://banzhaf.net/suefat.html
For two more recent pieces on using the addictiveness issue as a basis for legal liability, see
http://www.prlog.org/11810700-new-food-addiction-evidence-could-strengthen-legal-actions.html
http://www.prlog.org/11839317-60-minutes-claim-sugar-is-toxic-and-addicting-could-trigger-health-warnings.html
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW
Washington, DC 20052, USA
http://banzhaf.net/ @profbanzhaf
Brett Bellmore - February 23, 2013 at 3:29 pm
I have to admit that I’ve found food to be addictive myself; After several hours I start suffering withdraw symptoms, and they become quite severe after only a couple of days. I’ve even heard that going cold turkey can, eventually, be lethal.
Joe - February 24, 2013 at 10:00 am
“It may be apropos to point out that Goliath was killed by David. Pointing out that some battle is David vs. Goliath does not exactly mean that Goliath is bullying a poor David who has no way to fight back.”
Yes, it isn’t Bambi v. Godzilla.
Shag from Brookline - February 24, 2013 at 1:18 pm
I’m working on a project to compete with “The ONION” tentatively called “The raSCALLION” with this, inspired by Brett, as the lead:
“HUNGER = FOOD ADDICTION”
I plan to follow this with my own inspiration:
“CONGRESSIONAL CONSERVATIVES PROPOSE ‘IMPURE FOOD LAW’”
that would defund Public Health and create new jobs.
While this project may lack A.J.’s ideal of maturity and moderation, it deals with reality in the manner of “The ONION”, fully realizing that A.J. just might exercise his Nuclear Option of contacting ” … the folks who run this blog to adopt draconian measures.”
Shag from Brookline - February 25, 2013 at 9:38 am
Jill Filipovic’s 2/24/13 post at The Guardian titled “Fight unhealthy food, not fat people” available at:
http://www.guardian.co.uk/commentisfree/2013/feb/24/obesity-is-not-the-only-problem
belatedly inspires another article for “The raSCALLION”:
“FAT TUESDAY FOLLOWED BY FAST FOOD FASTING”
in observance of Lent.
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