Labor Logic

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John D. Finerty, Jr.

On April 14, Governor Jim Doyle signed into law Senate Bill 161 (WI Act 325), which bans individuals from suing restaurants and food companies for making them obese. The bill aims to reduce the number of lawsuits that target the food industry as the cause of obesity, and instead is intended to place responsibility on individuals for the dietary choices they make.

Senate Bill 161

• The new law creates immunity from suit for food manufacturers, marketers, packers, advertisers, distributors, and sellers from civil claims resulting from a person’s weight gain, obesity, or health conditions related to weight gain or obesity, caused by the consumption of food.

• The new law also provides an exception to this immunity if the claim involves a knowing violation of a state or federal law concerning the food, a breach of contract or express warranty in connection with the purchase of the food, or a claim that the food is adulterated under federal law.

• Finally, if a defendant prevails on a summary judgment motion concerning one of the claims subject to the Act’s immunity, the defendant may, in addition to recovering the attorney fees of not more than $100 recoverable under current law, recover reasonable attorney fees and the costs of the investigation and litigation.

Background

Two federal lawsuits claiming McDonald’s hid the adverse health effects of Big Macs and Chicken McNuggets were dismissed in 2004. In one of the two cases, a federal judge in New York rejected a claim by two obese teenage girls that eating McDonald’s meals on a regular basis made them fat.

In a separate lawsuit over food ingredients, a Seattle lawyer, Harish Bharti, sued McDonald’s for purportedly misleading consumers to believe their French fries were vegetarian; they were cooked in 100 percent vegetable oil, but enhanced with a beef flavoring to retain their traditional taste. The case settled in July 2005 for $10 million.

The McDonald’s suits prompted lawmakers across the country to act. According to the National Restaurant Association, 22 other states have banned obesity lawsuits against restaurants, and similar legislative proposals are pending in seven other states.

The U.S. Congress has also debated a national shield in this area. In October 2005, the House passed Rep. Ric Keller’s (R-Fla.) Personal Responsibility in Food Consumption Act (H.R. 554), by a decisive 306-120 margin. A similar bill is pending in the Senate, entitled the Commonsense Consumption Act (S. 908) (also known as “the Cheeseburger Bill”) by Sen. Mitch McConnell (R-Ky).

Employment Law Implications

The Wisconsin Fair Employment Act does not allow claims against employers that allege obesity-based discrimination. In other words, employers remain free to make employment determinations based on an individual’s weight, provided the individual is not “disabled” under state or federal law. See e.g. Gramza v. Kwik Trip Inc., LIRC (Mar. 3, 2003); Plizka v. A.O. Smith Corp., LIRC (Aug. 19, 1976). The Obesity Suit bill signed into law recently does not change the current state of Wisconsin employment discrimination law.

Under federal law, obesity has played a role in a number of cases, but does not ordinarily give rise to ADA, ERISA or Title VII liability. The new Wisconsin law does not change current federal law.

For example, Manny v. Central States, 388 F.3d 241 (7th Cir. 2004), held that an ERISA benefit plan’s cosmetic-care exclusion precluded benefits to pay for gastric bypass surgery. In Sorrell v. Illinois E.P.A., 2004 WL 1662284 (7th Cir. 2004)(unpublished), a female employee filed a sexual harassment claim over, in part, a picture posted by a male co-employee of an obese woman in tight clothes.

On the other hand, Gentle v. Barhnhart, 430 F.3d 865 (7th Cir. 2005), reversed a denial of Social Security disability benefits, because an ALJ must consider the effect that obesity has on a claimant’s other disabilities when deciding benefit issues.

For more information on this case or for assistance in defending state or federal court cases, contact Paul E. Benson or John D. Finerty, Jr. at Michael Best & Friedrich LLP at (414) 271-6560 or on the internet at [email protected] or [email protected].