News your connection to The Boston Globe

Finding Fault for the Fat

With two-thirds of Americans now overweight, the obesity crisis is ripe for the courts. And there's plenty of blame to go around.

My lunch with Richard Daynard is a lawsuit waiting to happen. We begin with a glass of wine and then let our waiter talk us into the classically rich New England clam chowder. We are in good spirits, after all, a couple of old New Yorkers in cabal on Beacon Hill not long after Yankee Aaron Boone's home run shattered the dreams of all those around us, and so we go for the fish and chips, which arrive practically sizzling from the fryer. Bristling with oily batter and potatoes, our lunches are accompanied by a bodyguard of artery-clogging tartar sauce, and the vegetable, if you'll pardon the expression, is coleslaw.


That we should look over the menu -- with its grilled fish and other healthy choices -- and pick the cardiologist's special was my companion's idea. Dick Daynard is a lean, gray-haired Northeastern University law professor who was chairman of the Tobacco Products Liability Project, which helped erect an intellectual framework for the legal assault on Big Tobacco. Over this stupefyingly caloric lunch, he's explaining his next big project: laying the groundwork for suing the pants off the food companies.

The professor seizes a warm, herb-scented roll, already glistening with butter, and adds still more as he notes that suing tobacco companies for making lethal products didn't work. "Juries want a story that involves moral fault," he explains. "If you focus on the product, the jury focuses on the failure of the plaintiff to quit using it." Thus, tort lawyers will pursue companies like McDonald's and PepsiCo not for making fattening food but for alleged deceptive practices. The companies will be accused of devious marketing, says Daynard, or perhaps commercial fraud. Most of all, they will be attacked for preying on the innocent -- for targeting our precious children.

So here we are knowingly consuming enough calories to keep a village in sub-Saharan Africa going for a week. Doesn't personal choice enter the equation? Couldn't we simply have ordered a salad? Daynard himself says he doesn't often eat this way; he's usually careful, because he knows better. He lost 25 pounds a couple of years back, and when I ask him how, he says simply, "I ate a lot less." No jury trial was required. (It's a good thing, too, since the first couple of lawsuits filed against fast-food makers on behalf of fat customers were thrown out of court.)

Besides, what's to insulate Daynard's favorite fish restaurant from the consequences of its clam chowder? Or how about that all-you-can-eat Indian buffet? "These are tough questions," Daynard agrees. Even tougher is what these lawsuits might imply: that we're a nation of childish pigs who can't take responsibility for what we eat, how we live, and the fat bodies and ill health we have as a consequence. Who among us thinks Big Macs and french fries are health food? McDonald's doesn't say so. Why sue Big Food and not the media outlets that carry their ads? How about the fork makers? Can't we ever stop making excuses for ourselves? I mean, how American can you get? "It's a canard that Americans tend to blame others," Daynard insists calmly. "Americans tend to be extremely self-blaming and believe to a totally unrealistic degree that everything can be dealt with by willpower."

Just a few miles out Mass. Ave., Harvard economist Edward L. Glaeser begs to differ. Says Glaeser: "My whole worldview is about people taking responsibility for their actions."

A tall man with his own weight problems, Glaeser, with colleagues David M. Cutler and Jesse M. Shapiro, has written a fascinating paper that attributes much of the obesity problem to technologically inspired reductions in food preparation time, which they figure lowered our cost per calorie by a stunning 29 percent from 1965 to 1995. Time is money, remember, and the economists think lower food prices in this sense have raised consumption. It makes sense; it's easier to grab some KFC than to make fried chicken at home. New food-processing techniques and innovations like the microwave oven have also contributed.

Like Daynard, Glaeser is thin, and he, too, works at it. "Atkins," he shrugs when I ask him how he keeps off the excess pounds. The difference is that Glaeser thinks it's ridiculous to pin legal liability on Big Food. "I actually think McDonald's and the others have delivered social benefit," he says with counterintuitive relish. "I think they're actually good guys."

Judging from a visit to his Harvard office, cooking and decorating do not appear to be Ed Glaeser's things; Glaeser says he subsists almost entirely on prepared foods (albeit "rigidly carb free"), and at work there are papers cascading from his desk onto the floor. But out of this chaos comes reason. Glaeser's rationale for suggesting that convenience foods are a social good is that, to judge from consumer behavior in the marketplace, people seem to prefer saving time to being thinner. And in economics, by and large, getting what you want is a good thing. Glaeser notes that until relatively recently, cheaper food (in terms of money as well as time) made us taller and healthier. Only in the past 25 years or so have diminishing returns set in.

Now that less is more when it comes to increased calorie intake, Glaeser expects the marketplace to correct the excesses he attributes to self-control problems. For one thing, food technology can't advance much farther, "short of direct injection," whereas weight-loss technology is only in its infancy, with vast room to grow. Glaeser can understand the need for regulation in the schools, or if food companies are misleading people. But he says: "I don't think anybody ate at McDonald's and thought it was good for them. I take a dim view of these lawsuits."

SO WHO'S RIGHT? IS IT A QUESTION OF willpower? Can the courts fix this problem for us? Or is obesity a disease, as some advocates have suggested? That might shift the burden of treatment costs onto health insurers, but would it also shift the burden of responsibility? In looking for someone to blame, it's important to remember that ours has always been a land of plenty; that's why people came here. But something changed around 1980, something other than our genes, and collectively, we started gaining weight.

Today a staggering two-thirds of Americans weigh too much, based on a standard measure relating weight to height called the body mass index (BMI). Put another way, only about a third of us weigh what the experts say we should; another third are overweight, and the rest are officially obese. Although the government lowered the recommended weight levels for good health in 1998, reclassifying millions of Americans as overweight with the stroke of a pen, most scientists accept the standards, and hardly anyone disputes that obesity is epidemic in this country.

Worse yet, we seem to be getting fatter.

When Rand Corp. health economist Roland Sturm analyzed data from telephone surveys conducted by the Centers for Disease Control and Prevention, he found that the number of "morbidly obese" Americans -- those whose body mass index is 40 or more -- quadrupled between 1986 and 2000, to about 4 million. The number of super obese -- those with BMIs topping 50 -- quintupled, to 500,000. The typical man in the latter group, at 5 feet 10 inches tall, weighed 373 pounds. Plain old obesity -- a BMI of 30 or more -- somehow only doubled during the period. Sturm's findings are especially troubling because people usually aren't completely honest about how much they weigh.

The consequences of our national weight gain ought to make anyone worried, even the skinny minority. Each year, according to the most widely accepted estimates, weight-related problems may cost the lives of 300,000 Americans and perhaps $100 billion. In studying obesity, Sturm has concluded that it is a bigger public health problem than drinking, smoking, or poverty.

But aren't Big Food's executives and investors also supposed to have some personal responsibility? Shouldn't somebody insist they provide easy-to-digest nutritional information, so consumers can make informed choices? And maybe warn people, as do some beer companies and credit-card issuers, about the need to use their products responsibly? What forum, in our system, do consumers really have to correct the gross market and nutritional imbalance they now face?

Right now, their forum is the marketplace, and from a public health standpoint, the marketplace looks a little grim. You can experience this firsthand in any of Boston's newer suburbs. Suburbs in general make people weigh more. Lawrence Frank, a professor of urban planning at the University of British Columbia, has found that even allowing for income, age, gender, and ethnicity, people in more spread-out communities tend to weigh more, and this is to say nothing of the Hamburger Alley that is so much a feature of suburban American life.

On Cochituate Road in Framingham, near Target and Shoppers World, you'll find the usual suspects in all their caloric splendor: KFC, McDonald's, Taco Bell, Burger King, and Dunkin' Donuts, among others. There seem to be more fast-food restaurants here than pedestrians, which shouldn't be surprising since the landscape is so utterly car-oriented. Even kids depend mostly on internal combustion to get around; nationwide, fewer than one in 10 walks or bikes to school regularly, compared with two-thirds 30 years ago.

Go shopping in some of the big-box stores and you can see the effects of America's ever-expanding waistline. Wal-Mart carries "extended sizes," meaning XXL and the like, and the men's department at Kohl's is full of pants with expandable waists. One pair of khakis I tried on, the Croft & Barrow Flexon model, offered an amazing 4 full inches of extra belly room by means of a cleverly designed tab hidden in the waistband. Plaintiffs' lawyers, take note: Research suggests that when our waists are unconstrained we tend to eat more.

Women's clothing has also changed. In 1985, the top-selling women's size was 8, but by 2002 it was a voluminous 14, according to Marshal Cohen, chief industry analyst for the NPD Group, a retailing consultancy in Port Washington, New York. This is to say nothing of size inflation; a size 8 in 1985 was smaller than an 8 today. Cohen says this "vanity sizing" is now widespread.

When the exertions of driving and shopping grow too much to bear, there is always something to eat at hand. The Natick Mall, for example, features the obligatory food court. On the afternoon of my visit, the busiest shop in it looked to be McDonald's, a chain seemingly present in every possible public setting from highway rest stops and hospitals to the Champs-Elysees. The food court is also a testament to a less-heralded factor in the expansion of the nation's waistline: the accompanying growth in tempting things to eat. This particular mall has outlets selling Chinese, Indian, Japanese, and Italian foods, and the Cajun chicken place was offering free samples.

At least I was on foot, like everyone else at the mall. In a further nod toward our vestigial impulse to move around, the food court even has a children's play area. But a Haagen-Dazs ice cream outlet stands watch right next to it, as if children can't be expected to relax without the reassurance of high-calorie provisions always at hand. Not far away, exemplifying yet another factor in the fattening of America, there is a stand selling frothy, dessert-like coffees. The mocha chiller looked good, so I asked the fellow at the counter how many calories it has. "I have no idea," he said.

This is what drives the Dick Daynards of the world nuts. "Food companies can make very significant changes that will have a significant impact on obesity," says John F. Banzhaf III, an overweight law professor at George Washington University who worked on tobacco before turning his attention to obesity. Banzhaf says mom-and-pop delis have nothing to fret about; the harm they do would be outweighed by the cost of any remedy. It's the big fish that ought to be worried, and he and Daynard note that some food giants are already changing their behavior, which the professors insist is the real goal here. Fast-food outlets, for example, should at least prominently disclose nutritional information about their products. "If enough people had to face the fact that, my God, it has 900 calories," says Banzhaf, they might make other choices.

od may in fact have something to do with it. James Morone, a Brown University political scientist and author of the book Hellfire Nation: The Politics of Sin in American History, observes that the debate over who is responsible for our weight problems is firmly rooted in America's historically ambivalent attitude toward self-indulgence. On the one hand, he says, there is a tradition of laissez-faire individualism, as in "My handgun is none of your business." On the other hand, there is a strongly censorious communitarian tradition going back to the Puritans, who felt salvation was something they would all achieve together. Thus, Prohibition, the war on drugs, and various statutes against sexual practices between consenting adults. "Relative to other countries," says Morone, "we have a real history of interfering in people's private lives."

An important characteristic of this persecuting tradition, says Morone, is the need to demonize, which, of course, goes back to Salem. On the left, there is a tendency to demonize big business. Says Morone: "Ronald McDonald is the new Joe Camel." On the right, there is a tendency to demonize the individual who is lacking in self-control.

Crusades against sin usually culminate in Congress, but in recent years these issues have been brought to the judiciary. In this new world of legal redress rather than legislative prohibition, the vulnerability of a product or a company seems to have less to do with the law and more to do with a readiness to affix guilt. The resulting trials, with their helpless victims and outsized villains, are a form of ritualized scapegoating that nonetheless serves some important social functions, including deterring future negligence and changing personal behavior.

"The most effective things to come out of these attacks," says Morone, "are changes in social attitudes." Early in the 19th century, for instance, a campaign was begun against alcohol, and by 1830, Americans were drinking only a quarter as much as they had been in 1800. Says Morone: "It became socially unacceptable."

He acknowledges that this history raises an interesting question about the role of stigma in suppressing bad behavior. For better or worse, the stigma today is increasingly on those perceived to be responsible for what critics like Kelly D. Brownell, director of the Yale Center for Eating and Weight Disorders, are calling a "toxic food environment." (Like so many public health crusaders before him, Brownell is not immune to the toxins he seeks to eradicate, having a weight problem of his own that he attributes to snacking and overwork.) Consider fast food, on which Americans spend $110 billion a year -- up from $6 billion 30 years ago. The number of fast-food restaurants per capita doubled in this country from 1972 to 1997.

Fast food leads us to supersizing. "Portion sizes began to grow in the 1970s, rose sharply in the 1980s, and have continued in parallel with increasing body weights," says a 2002 study by New York University nutrition experts Marion Nestle and Lisa R. Young. Since 1980, moreover, new product introductions in the category of candy, gum, and snacks have soared right along with our weight.

Want something to drink with that? Annual soda consumption rose from 21 to 56 gallons per American from 1970 to 1997, observes science writer Ellen Ruppel Shell in her book The Hungry Gene. Shell, who teaches journalism at Boston University, further notes that "in the last decade, soda eclipsed coffee and tap water combined as the American beverage of choice."

But if liberals get to blame giant corporate food mongers, conservatives have their place at the banquet as well, starting with the "nanny state." It was government officials, after all, hand in hand with the medical establishment, who pushed all of us to eat more carbohydrates. They identified fat as the clear villain, and when a host of richly caloric products appeared on supermarket shelves boasting of little or no fat, consumers obligingly gorged themselves. "I have colleagues who told people it was only fat calories that made you fat," says Walter Willett, chairman of the nutrition department at the Harvard School of Public Health. "That was just completely wrong."

Remember when we were all supposed to eat margarine? Ridiculous; it often contains trans fatty acids that are worse for you than butter or even lard. And, of course, alcohol was out, too -- another bum steer. Scientists now claim that a drink or two every day is good for you. Eggs are back, in moderation, while our former friend pasta has been cast into perdition -- it turns out that the only good carb is a whole-grain carb, so unless it's whole-wheat pasta, lay off. Perhaps worst of all, says Willett, the experts knew things were more complicated than they let on. They knew that all fats weren't created equal. They just didn't think we could handle such fine distinctions.

Perhaps the ultimate monument to wrongheaded expert advice is our own government's food pyramid, familiar to schoolchildren everywhere as an icon of nutritional piety. Willett considers this structure so badly out of whack that he published a pyramid of his own. In some ways, it turned the official pyramid upside down, mandating way more fat, in the form of vegetable oils, while radically reducing white bread, white rice, potatoes, and pasta. He even found room for a little booze. It's enough to make a body wonder whether the lawyers ought to sue all those experts who made us miserable -- and possibly even fat -- all those years.

Conservatives are also entitled to tsk grimly over the matter of self-control. The lawyers will have some success against Big Food, just wait and see, but even they know very well that relatively few Americans are dragged into a KFC at gunpoint and forced to order a bucket of fried chicken (perhaps the way Homer Simpson likes it, with extra skin).

And what about mothers and fathers? Brownell reports in his book Food Fight: The Inside Story of the Food Industry, America's Obesity Crisis, and What We Can Do About It (coauthored by Katherine Battle Horgen) that more than half of the average child's daily calories now come from sodas, juices, and other high-calorie drinks, and that 10 percent of teenage boys suck down seven or more cans of soft drink a day. Forget the experts. Never mind Big Food. Maybe we ought to haul all those parents into court.

If most adult Americans are fat, the real reason is that we are victims of our own success. The obesity epidemic is what the historian of technology Edward Tenner would call a classic revenge effect. Tenner noticed that scientific advances often produce these; the relationship of smoking and weight is a perfect example.

A 1995 study in The New England Journal of Medicine concluded that giving up smoking was responsible for about a quarter of the increase in the number of overweight men during a preceding 10-year period; the figure for women was about one-sixth.

As Tenner astutely notes, technological solutions to acute problems often create chronic ones in their place. Thus, modern society has mostly eliminated starvation and backbreaking labor, but in exchange it requires constant vigilance on the part of individuals lest they succumb to obesity. Advances in technology, progress in the social status of women, increasing affluence, the scientific method, the media, and the workings of an efficient market economy have all played their role. A host of good things, in other words, are killing us.

Thanks to all these factors, life expectancy increases all the time, yet the very same factors have led to an explosion of weight-related illnesses not just in adults but also in children, whose increasing obesity can mean a lifetime of weight struggles. Says Keith-Thomas Ayoob, a pediatric nutritionist at Albert Einstein College of Medicine in New York: "This may be the first generation of kids that has a life span shorter than that of their parents."

he funny thing is, there is more hope than Big Food's critics like to admit. All you have to do is run down to Providence and talk to Rena Wing, a trim, cheerful professor of psychiatry at Brown University Medical School. A decade ago, she and another obesity researcher, James O. Hill of the University of Colorado, were talking about how they had worked with patients who managed to lose weight and keep it off, even though, as Wing puts it, "people were saying nobody ever succeeds at weight loss."

Wing and Hill decided to ask the successful dieters how they had done it. Thus was born the National Weight Control Registry, which now contains the names of more than 4,000 participants who have lost at least 30 pounds and kept it off for a year (if you qualify, call 800-606-6927). Most have done much better: on average, says Wing, they've lost more than 60 pounds and kept it off for six years.

What do these people have in common? Because they are recruited mostly through newspaper publicity, they tend to be newspaper readers, meaning they are more educated and affluent than the general population. Most are also women. And they're tenacious; virtually all tried and failed at least once before ultimately succeeding with a diet. Half lost weight on their own, and the rest had help. Few are Atkins alumni. But Wing and Hill have identified four characteristics that the long-term weight losers seem to share: They monitor their weight; they get about a quarter of their calories from fat, versus about a third for most Americans; they exercise way more than most people, burning off 2,800 calories a week, the equivalent of walking 28 miles; they have breakfast daily.

Now, it's possible that these 4,000 Americans are possessed of a uniquely iron will and that the rest of us are doomed to fail. To explore this, Wing and two colleagues conducted a telephone survey of 500 randomly selected Americans. Their findings were startling: Sixty-two percent of those who were overweight had lost 10 percent or more of their weight at some point. Of that 62 percent, nearly half had maintained this weight loss for a year or more -- and about a quarter had done so for five years or more. (To the experts, a 10 percent weight loss is a big deal.)

So why are the rest of us still so fat? "It's not any one thing," says Wing, sensibly enough, which implies that more than one thing will have to change. The food companies will have to change -- and some already have, prodded in part by fears of liability and the social disrepute that afflicts cigarettes and, to a lesser extent, sport utility vehicles. But the government will also have to change, perhaps by requiring on-spot nutritional disclosure by restaurant chains, getting unhealthy foods out of the schools, and altering the zoning and other policies that help drive so many Americans into car-oriented suburbs.

Most of all, we have to change. As parents, we have to be tougher, getting our kids away from the TV and all the awful stuff they now eat. And we have to set an example by eating healthier ourselves and getting off our duffs to burn up more calories -- something we might even do with our children. It's not complicated. Rena Wing can boil it down to one sentence: "If anybody eats less and exercises more," she says, "they will lose weight."

Daniel Akst is the author of St. Burl's Obituary, a novel about what happens when a fat man becomes thin.

(Globe Staff Photo / Lane Turner)
Fat facts
Americans spend $110 billion a year on fast food. And they don't have to go far: The number of fast-food restaurants doubled in just 25 years.
Photo gallery
Weight-related problems may kill 300,000 Americans each year and cost some $100 billion. One researcher has concluded that obesity is a bigger public health problem than drinking, smoking, or poverty.
Regardless of income, age, gender, or ethnicity, people who live in suburban communities tend to weigh more. A prime culprit: the automobile.
Photo gallery
The number of "morbidly obese" Americans quadrupled over a decade and a half, while the number of super obese quintupled.
More than half of the average child's daily calories come from sodas, juices, and other high-calorie drinks.
Annual soda consumption rose over a quarter-century from 21 to 56 gallons per person, eclipsing coffee and tap water combined as the American beverage of choice. One study found that one in 10 teenage boys was consuming seven or more cans of soda a day.
Photo gallery
The rise in the number of women working outside the home, trends such as prepared foods and fewer family meals, and an upsurge in snacking -- all have played a role in contributing to obesity.
Many consider the US government food pyramid to be outdated as an obesity beater. Eggs and fat in the form of vegetable oils are now in, while non-whole-wheat pastas, white bread, white rice, and potatoes are decidedly out.
Photo gallery
Technology has helped lower the per-calorie cost of food by nearly 30 percent, thus putting cheaper foods in the hands of the hungry consumer.
The United States has the highest percentage of obesity in the world, with the United Kingdom and Germany close behind. Japan and France have among the lowest.
The top-selling size for women jumped from size 8 to size 14 in less than 20 years.
Photo gallery
Giving up smoking was responsible for about a quarter of the increase in the number of overweight men over a decade and for a sixth of the increase in overweight women.
Pasta's heyday is over as a diet staple -- unless it's made from whole wheat.
Photo gallery
Obesity in America
An estimated 6 million Americans are morbidly obese, defined as being 100 pounds or more overweight.

Computing your BMI
The body mass index (BMI) measures body weight in relation to height. A BMI of 25 to 29.9 is considered overweight, a BMI of 30 or more is considered obese, and a BMI of 40 or more is morbidly obese. To calculate your BMI: Multiply your weight in pounds by 703. Divide that answer by your height in inches. Divide that answer again by height in inches.

The obesity index
Percent of population that is obese.
Source: Centers for Disease Control and Prevention
Buy the book
Daniel Akst, the author of this article, wrote "St. Burl's Obituary," a novel about what happens when a fat man becomes thin.
Buy it at has an affiliate relationship with and gets a small percentage of each sale made through this link.
Globe Archives Sale
Today (free)
Yesterday (free)
Past 30 days
Last 12 months