food and law

Thursday, March 11th, 2004

Bill H.R. 339, short titled as the Personal Responsibility in Food Consumption Act, street named, the “Cheeseburger Bill.” (Open the link and type in the bill no. at the search field):

The major text goes:

PREVENTION OF FRIVOLOUS LAWSUITS–The manufacturer, distributor, or seller of a food or non-alcoholic beverage product intended for human consumption shall not be subject to civil liability, in Federal or State court, whether stated in terms of negligence, strict liability, absolute liability, breach of warranty, or State statutory cause of action, relating to consumption of food or non-alcoholic beverage products unless the plaintiff proves that, at the time of sale, the product was not in compliance with applicable statutory and regulatory requirements.

The serious response: Frivolous here means: cases without merit. The bill, in my reading, doesn’t prevent cases from going to court, but it does limit how one defines “liability.”

Another question though: is this an example of the law evolving? Or is it the law “reacting” or “overreacting”?

One of the concepts that the American Constitution keeps delivering is the notion of interpretability. The fact that we still fight over ammendments to the document is a good thing.

Here’s my real response to the above bill (sometimes I wish I was in Congress so that I could write up funny-sounding bills and write overtly regulated law): “PREVENTION OF FRIVOLOUS BILLS AND DUMB TITLES–no bill shall be written that presumes to dictate or determine definitions of and for any rational human being as regards personal responsibility in association with the word food . . .”

Free societies, if free they are, come with all kinds of risks. Can we legistate out all of them in life?


21 responses to “food and law”

  1. Jason says:

    This is so ridiculous. The U.S. Government, of all things, trying to make up for its people’s gratuitous lack of common sense. Um, kettle? I’ve got a telegram from the pot: ‘You’re black, stop’!

    Jason

  2. Rina says:

    I’m assuming this has come about from the lawsuits aimed at McDonalds. I just recently read an article on how McDonalds is phasing out their Super-size option and is phasing in healthier food options…as we’ve seen with the rabbit food, I mean salad trend.And I’ve recently noticed that since the killer-flu-strain epidemic didn’t pan out, the opinion-makers, I mean the mainstream media has been peddling the story on how obesity kills more people than cigarettes.You know, people thought that we libertarian/ republican types were being conspiratorial when we came to the BIG TABACCO boogey-man’s defense. It was because republicans are all rich. And we like BIG BUSINESS.It had nothing to do with foresight. Of course not.Slippery-slopes…weeeeee!Just remember folks, first they came for our cigarettes…now they’re coming for our guns, our SUVs, our cheeseburgers and twinkies.But, No. No. There’s no agenda here, folks. Keep moving. Nothing to see here.Only in America do we pass “Personal Responsibility in Food Consumption Act”…home of the brave, land of the fat poor people.I apologize for the acerbic tone. First terrorist attacks in Spain, now stupid legislation. This is not a good day.

  3. Beverly says:

    I think this is the legislatures response to take some kind of responsible action toward new statistics that claim deaths related to obesity are a close second to the number one cause of death, smoking in America. It was mentioned on the news that 435 million people died from smoking related causes while 400 million have died from obestity related causes in the year of 2000.

  4. Rina says:

    Yes, Beverly.First the legislators start with legislation that they can later expand upon and then phase two usually involves a tax.I’m already prematurely about to hit the roof over phase two.The opinion-makers, I mean the media, is usually a willing accomplice. I can see that you got the message (Insert a smiley-face emoticon here).Fear makes for powerful leverage.Religion, specifically Christianity, used to be used in this way. It’s an old trick but a solid strategy.Myrna Blyth just put out a good book that talks about the effect of women’s magazines on women and the strategy behind it. She was an insider for twenty years…and now she’s decided to call the Polaner Fruit, jelly. So, naturally, I love her just based on that alone.I won’t get to read the book until the summer, probably…but the articles I read are pretty interesting.

  5. Rina says:

    Wow. I just noticed something…435million and 400millionThat’s an alarming number. There are only 300million people in the United States.That means that between smoking and obesity, 835million people have died.Well, this might be good news for the over-population fanatics. Our natural resources might be saved afterall.What’s the time frame on this? Obesity has only started blipping on the radar less than a decade ago.I’m not a statistician but I really can’t trust statistical information unless I can examine all of the variables and data.Based on shear instinct, I’m willing to bet these numbers stink to high heaven.

  6. Rina says:

    “I think this is the legislatures response to take some kind of responsible action…”I’m sorry, Bev…cracking myself up…something about this comment makes me think: Oxymoron.

  7. Joanne says:

    Rina, you’re already in phase two as far as payment goes.

    I for one, am not willing to continue to foot the bill for a ridiculously litigious society wherein people absolutely refuse to take responsibility for their actions. Nothing that anyone does in this country is their own fault and EVERYTHING that happens is naturally someone else’s fault. These lawsuits, media exacerbated or not, cost money to defend and the majority of these million dollar(s) rewards that we hear about are reduced, yet, it still runs down hill. The burden of the cost is on the consumer.

    Civil suits are vital and necessary to compensate plaintiffs when they have been wronged (damaged) due to the actions and negligence of another party, however, if someone is blaming their obesity and the health related problems and risks associated with that condition on the fact that the 14 trips per week that they took to McDonalds is the culprit, then pass the legislation PLEASE. This frivolity is unacceptable.

    I’d like to put an addition on my house and shore up my daughter’s college fund, maybe I’ll take a ride to Krispy Kreme.

  8. Beverly says:

    Okay Rina, I thought I’d take a stab, but Politics just isn’t my bag. Anyway you’re scaring the hell out of me.

  9. ersinghaus says:

    Beverly,

    Don’t let Rina scare you. Congress and responsible action may indeed be an oxymoron.

  10. Neha says:

    Oh to move away from cliches! But what does one do when the lawmakers dig their own cliched graves?

    I suppose it IS too much to want Congress and responsibility to be breathed in the same sentence without choking – well, it definitely rates a snicker.

  11. Rina says:

    Joanne,I, for two, am disgusted with the present state of today’s litigious society. I’m all for Tort Reform. If you think that our salvation lies in this bill. I’m sorry.”Nothing that anyone does in this country is their own fault and EVERYTHING that happens is naturally someone else’s fault.”***raising my hands up in the air, like I’m in a Baptist church***Amen, Sister.The implications of your statement span FAR beyond even this legislation. You tease me with hope.I’m only on phase two because I’ve been following slippery-slope issues for quite some time. They’ve been discussing the “Twinkie Tax” since the 90s. Actually, I think that it came about from a study by a professor at Yale. If I remember correctly.

  12. Rina says:

    Bev,If it’s any consolation…I scare myself too, sometimes. For me, there is no escape.But…I think it’s GREAT that you’re taking an interest in current events.For me, upon being given any information, I immediately start sifting for inconsistencies and misleading statements. I don’t mean to make it sound like I’m annoyed with you for delivering the message, I am actually angry FOR you because this is how good people get hosed.Whoever put out this 435million and 430million statistic…I wanna pull their underwear up over their ears for it. It’s criminal is what it is.I’m really quite shy in person.

  13. Joanne says:

    Rina, having spent many years working in the legal field and much of that time for plaintiff attorneys, I have to state that I am completely AGAINST TORT REFORM. It’s important to look closely at who this will help and who this will hurt. Of course, insurance companies plead for tort reform because it’s soooo expensive to pay out these enormous settlements. As I stated before, many of these multimillion dollar settlements that make headlines are oftentimes reduced, and that is not sensational enough to make the news.

    Insurance companies would lead everyone to believe that they are on the brink of financially toppling over which is their justification for charging outrageous premiums and that litigation, medical malpractice in particular, is the cause. This is completely untrue and I would challenge anyone to come up with the financial documentation to back up the last time an insurance company actually lost money – they are master financial investors.

    Individuals who have been physically injured, whether it be by a doctor’s negligence or another’s carelessness, are entitled to be compensated. When such injury and/or damage causes someone to lose the ability to work or walk, for instance, how far will $250,000 take them? If I were in a wheelchair, logistically, many aspects of my home would have to be revised and that’s only my house, that doesn’t include special mattresses to prevent bed sores, new medications, nursing care, and that’s just a very small slice of the expenses someone may incur. That’s just too much of a sacrifice in order to beef up insurance executives’ year end bonuses.

    This subject is really too big for this space. Sorry to babble on.

  14. Rina says:

    That’s a good challenge. Am working on a rebuttal, Joanne. Have put a shout-out for some help from some more skilled debaters.This might take a couple days…I also have an exam and presentation on my ‘to do’ list.I will not forget this challenge.

  15. Rina says:

    “Insurance companies would lead everyone to believe that they are on the brink of financially toppling over which is their justification for charging outrageous premiums and that litigation, medical malpractice in particular, is the cause. This is completely untrue and I would challenge anyone to come up with the financial documentation to back up the last time an insurance company actually lost money – they are master financial investors.”This is some of the feedback that I’ve received over at my other playground…Rebuttal #1: Here is a link to Texas insurance insolvencies: http://www.txlifega.org/impairment.html . Workman’s compensation carriers probably have had the most failures (as a percentage), but many property and casualty companies have failed, as have many reinsurers. Lloyds of London required a UK government bailout (or two) to survive. Annuity contracts have been the biggest risk for life insurance companies. And remember Equity Funding?Number 2. It’s almost impossible to get the information you want–for several reasons.

    1.Any major player in the insurance market will never want to publicly admit that they lost money–it will scare off agents who represent them, causing a reduction in their billings and thus in their income–a death spiral. Also, any admission that they lost money scares off customers who feel the company would not be able to pay claims–another death spiral scenario.

    Therefore, they resort to ‘adjusting reserves for losses’. Not all losses are paid in the month they occur. So reserves for anticipated losses make up a large part of the liabilities listed. Playing around with reserves is an arcane insurance practice that goes on all the time.

    The next thing they do is to increase premiums to make up for actual losses plus an added amount for future anticipated losses plus a profit margin. When states try to regulate the market by limiting premium increases to adjust for these factors, many insurors will simply stop writing the particular policies that are giving them trouble (such as auto) or will withdraw entirely from the state because of the hampering regulations.

    2.Smaller insurors don’t have the luxury of enormus premium bases. They sometimes go belly-up because of losses that are higher than any viable recoupment by increases in insurance premiums.

    Usually, one of two things happens: They are bought out by a larger insuror who accepts their lieabilities and assets with the goal of working their way out of financial trouble–or they go out of business and their insureds are protected by state laws that spread the losses around among all the insurors doing business in that state.

    3. When a market like malpractice becomes a sure loser, most insurance companies simply refuse to write policies. This results in the rise of under-capitalized ‘specialty insurors’ who serve a ‘niche market.’ There are virtually NO large insurance companies that write medical malpractice any more. In some cases doctors have resorted to forming their own cooperative companies–with predictable results. Another practice, often entered into by dodgy insurance executives is to set up non-regulated insurance companies in places like Belize but which serve the American market. A lot of them are simply scams. As the losses start piling up, they don’t pay off and often go into bankruptcy, laaving policyholders and agents holding the bag.

    In short, insurance is a very involved financial business. I spent twnety-nine years in it and find it difficult to explain all the financial ramifications in a short time. You might get some additional information about companies which have actually gone into receivership from your state insurance commission.Number 3. Don’t know if it was the ”last” (i.e. most recent) case, but in 1992-1993, virtually EVERY casualty insurer with exposure in the state of Florida, and EVERY re-insurer, lost huge sums, some even went bankrupt, after hurricane Andrew. Total insurable loss was in excess of $70 billion.
    Lloyd’s, which is principally a reinsurer, has lost for years and years due to the asbestos-tort racket. Swiss Re has taken huge hits from time to time (they were PanAm’s insurer at the time of Lockerbie, for example). Numerous auto insurers in the states, Allstate in NJ, for example, have operated at a loss in several fiscal years — which of course is why a number of auto insurers have stopped writing in various states.

    For publicly traded insurers, annual P&L statements are readily available, free, on the EDGAR website. Should be a cinch to find any number of companies that have had losing years from time to time.Number 4. Your lawyer friend is wrong – insurance companies lose money all the time. For example, Conseco, a very large company, is currently in Chapter 11 reorganization, and London Pacific is in receivership. Insurance companies operate in the red when they incur excess losses resulting from claims on the risks against which they insure. This is especially so when losses exceed the financial reserves maintained for the purpose of paying claims, and when the companies’ own investments perform poorly in a “down” market.
    Allstate went through a period of extreme financial difficulty following Hurricane Andrew in Florida. Health insurance companies are all struggling right now – principally due to lawyers. Tort law as been warped beyond recognition from what it was for decades – even centuries -in common law. Time-honored concepts such as “contributory negligence” and “assumption of risk” have given way to “deep pockets” – and I think you know whose pockets are picked and whose are filled under that theory. Malpractice costs have become so egregious that in states like Pennsylvania and New York it is increasingly difficult to find specialists in “high-risk” fields like obstetrics and endocrinology. Insurers base their premiums on mathematical and actuarial relationships – unlike tort lawyers, who increasingly base theirs on greed and arrogance.

  16. Rina says:

    Joanne,I’m also in the process (actually, I’m on the phone right now) of trying to make contact with another friend of mine. This gentleman happens to be a partner at a law firm and also an economics professor. He’s not really a conventional sort of lawyer. He also very rarely charges his clients, which makes his partners really happy…hehehe…so he’s my kind of guy.I’ll letcha know what kind of response I get from him.

  17. Rina says:

    Joanne?I’ve been so blinded by your challenge, I failed to notice something…Your support for this H.R. 399 and opposition to tort reform is a contradiction.I think someone whose comment I posted on this matter mentioned that even tort reform has become perverted over time…of course, because the more it becomes perverted the less chance we’ll ever truly see any justice.And of course, nobody with a heart, would or could argue your worst-case-scenario example but tort reform is not some sort of heartless scheme. For the record, nobody wants to kill the lady in the wheelchair. In this worst-case-scenario example I would agree that the doctor or perpetrator would deserve to become the wheelchair lady’s personal money slave, or butler for life.However, I for one, have known my fair share of opportunistic people who almost make a living from filing false claims and suing everyone including their mother.I’m still in the process of gathering information but one of the questions that I’ve asked is whether there is a figure of the major bonafide suits, such as your “worst-case-scenario wheelchair lady” example compared to all the b.s. claims of people who say they hurt their knee in a fender bender in which they walk away with $14,000.00 easy. That’s the kind of tort reform I’m talking about.I’m willing, based on instinct alone, to wager a six-foot subway grinder for the next Narratives meeting, that if any numbers like this do exist, that it’s not the “wheelchair lady” whose got the big-insurance boogey-man crying for tort reform.As for H.R. 399, call me a cynic, I see the storm clouds gathering. The buzz has been out there for quite some time. So, yes, in theory, I myself might even support H.R. 399 but as Mr. Ersinghaus pointed out in the original post…the language is disingenuous. The bill is a joke.Am looking forward to your argument.I just love the spirit of debate but alas, the Dead Sea Scroll call…

  18. Jason says:

    Wow, what a lively topic! It seems like the issues involved seem to be in a lot of people’s minds. Here are my responses:

    1. I am totally against tort reform, simply because no one has come up with a reasonable way to do it that isn’t based solely on their own interests.

    2. I don’t really give a rat’s ass if insurance companies lose money, and its not just because insurance is a big racket. Business is a risk, deal with it.

    3. Most of these issues, like all issues, will be solved through the process of societal evolution, not legislation. For example, tobacco isn’t dying because of laws limiting smoking areas and what-not, its dying because smoking is becoming less and less socially acceptable, which is what’s causing those laws in the first place.

    Jason }:)

  19. Beverly says:

    Rina, I’m back on my feet. Why I’m attracted to people like you I’ll never know. Reading your posts are like information blast off where sometimes my reaction has me fall flat on my face right at the starting gate. I find myself reading a mile a minute to find out what you have to say. Don’t you think welfare reform has had something to do with the exploitation of tort law? Is it exploited in your eyes? As you say, malpractice suits are dwindling in some states. No one wants to invest in them because all the lawyers have to do is get frivolous and join the lower class band wagon. If I’m getting off the subject, I’m sure you will set me straight. As Steve mentioned, the bill “doesn’t prevent cases from going to court, but it does limit how one defines ‘liability.'” Legislators are looking to cut down the hunk of cheese insurance companies are paying out, but will it deter the rich from taking the same route as the poor? Or is this about legitimacy? Legitimacy is someone who is diagnosed with a congenital heart defect, lives a completely normal life with no signs of abnormalcies and through many systems is a marked man with denied rights. professions, armed forces and sports to name a few are obstacles that all rely on the legal system and insurance policies. These common people pay an awful price for so called tort lawyers. . . . erly

  20. Joanne says:

    Jason, this is a lively topic, and Rina, you’ve been busy. I will address some of your points, but I also have to have some fun this weekend! I assume the the “…I spent twenty-nine years in it…” is not coming from you. My opposition to tort reform is not a contradiction because I don’t consider these frivolous lawsuits to be torts. Torts are civil wrongs, and these claims simply do no meet that criteria. When I think of tort reform, the obvious hot button is caps on lawsuits – ridiculous. I suppose I should have qualified my response regarding insurance companies losing money to, “insurance companies don’t lose money as a result of paying damages in lawsuits,” they lose money to bad investments. When you write about the “death spiral” looming over insurance companies as the reasoning for not wanting to admit to losses because it will scare off business, I can interpret that in 1 of 3 ways, it is either: 1) the truth, 2) a marketing ploy; or 3) a line of bull___. I’ll let you guess which is my choice. I believe many people and companies buy insurance because it is a prudent and responsible thing to do, but, let’s be honest here, the majority of insurance is purchased because it is mandatory to do so. In this vein, the most cost effective route is probably a popular one.
    Insurance companies derive much of their revenue from investments and when the economy declines, so too, do their revenues. We all lost money in the stock market, but insurance companies would have you believe that their outflow is due to claims they had to pay out, as opposed to being in bed with Enron, which, by the way is the real reason St. Paul Insurance Co. got out of the business.
    Contributory negligence and assumption of risk are more prevalent now than they were 15 years ago. Malpractice premiums may be high, but that is due to preventable medical errors on the part of doctors and nurses, not the victims of this carelessness. I do, however, agree that there are plenty of $14,000 claims out there, but you can’t reform those without punishing the deserving. I don’t know if you’ve ever been involved in any kind of medical / insurance / legal situation. It sounds like you haven’t had the misfortune – consider yourself lucky. It is a quagmire that anyone who has to navigate would be smart do so with a tenacious attorney. The ones I had the privilege of working with were neither greedy nor arrogant. I must be one of the lucky ones.

  21. Rina says:

    Thanks for the information, Joanne.We’ll agree to disagree.BTW…If it were me who had spent 29 years in insurance, I would have had to start at five-years old. So, no…my information was derived from people in various fields…all honorable and knowledgeable researchers. I always try to credit my sources properly. My apologies if I didn’t make my informal citation clear.