Thin end of the wedge for legal exclusion of fatties

In a thoughtful Money Programme last week, my old friend Jeff Randall, the BBC’s business editor, revealed evidence that an unmitigated diet of sugar and fats proved addictive for rats. Earnest doctors in white coats stood beside projected sections of rats’ brains and demonstrated that, unsurprisingly perhaps, such forced feeding had warped the cranial capacity of the luckless rodents.

This set me thinking about another species that had been represented in the programme. American lawyers had been interviewed about the threat of obesity lawsuits in the US that is exerting considerable pressure on the food industry there. Processed foods conglomerate Kraft has already responded to such pressure by cutting the fat content in some of its product ranges. The sharks of American jurisprudence sense blood in the water.

What, I wondered, happens to lawyers’ brains when they are exposed to a relentless diet of money? Could it be that class actions are addictive? It could be that this is an area of public health that is under-researched.

Patti Waldmeir, writing in the Financial Times, makes the very good point that, whatever the financial inducements for such class actions, there can be no doubt that, in public health policy, “the common law has been used to compensate for failures of the political process”. Where legislators and regulators have failed to protect Americans from tobacco or guns or fat, lawyers have stepped in to fill the void in corporate governance. Waldmeir’s point is that, in the popular mind, “such lawsuits are increasingly seen as democracy at work”.

It used to be said that fat was a feminist issue. That was to do with the ideal image that a male-dominated society imposed upon women. It has now morphed into a legal issue and the lawyers will do their best – or “darnedest” in the US – to make it a social issue, complete with stigma and alienation.

That is what they have achieved with tobacco. It used to be assumed that they would move on to alcohol, which is not as absolutely damaging to health as tobacco, but they appear to have gone straight for fat – which must be puzzling because, unlike alcohol, fat is part of a staple diet.

Kraft has already responded and that may be desirable. Healthier fat alternatives may form part of the march of progress for the food industries. But it may also be the thin end of the fat wedge. For if fat really is the new tobacco, then we can expect the same kind of marginalisation that has affected smokers to be the consequence of the legal warriors’ campaigns against fatties.

In short, the stigmatised overweight should start to examine how smokers have been treated, not just socially but in the business world, if they want a glimpse of their future. (I don’t even want to start to think what it’ll be like in a future, fat-free world for overweight smokers.)

I am astonished to learn that the Western world’s prejudice against smokers has now gone much, much further than making them stand in the street to indulge their habit. Further even than New York’s ban on smoking in all public places. Apparently, there are now companies that insist their employees not only do not smoke in the office, but that they don’t smoke at all. This new corporate authoritarianism enjoys its triumph in Germany. Berlin-based publisher Eitman-Verlag, for example, happily declares that it has a non-smoking requirement in its employment contracts and would sack anyone who turned out to be a smoker, even in their own time.

A piece in the FT juxtaposed with Waldmeir’s, apparently without irony, also records that a salesman with a Swindon-based company was fired for being a smoker after two days with the company.

It seems that the legal position of smokers in the workplace is unclear and inconsistent. In parts of Canada, for instance, smokers are considered “disabled” and cannot be discriminated against. But in the UK, the Disability Discrimination Act excludes nicotine.

Naturally, anyone dismissed from work for being fat would be able to take their former employers to the cleaners in the courts and tribunals. But we have to ask whether the social and professional stigmatism that has been inflicted on smokers, as a knock-on effect from lawsuits against tobacco companies, will not eventually be duplicated in the legal campaigns against obesity.

Absurd as they may seem now, these are serious issues for the food and legal industries to address. And then there is the alcoholic drinks industry, which for the time being seems to have been by-passed by the concentration on obesity and foods.

The debate over whether relapsed alcoholic George Best “deserved” his liver transplant on the NHS is one step away from employment contracts that exclude drinkers from the kind of work from which smokers are already barred.

These prospects arise directly from a circumstance in which lawyers have replaced politicians as stewards of a nanny state. We may choose, currently, whether we smoke or drink or grow fat, but increasingly those liberties are being eroded by litigation, rather than by legislation.

Individuals and the companies they work for need to decide who really has the responsibility for the way we live now. Is it we individuals, the companies we work for or the lawyers who seek to sue them?

George Pitcher is a partner at communications management consultancy Luther Pendragon