Using Lawyers to Restore American Health

The legal system may be just to the ticket to begin the process of restoring an ethical balance between corporate profit and public health.

Originally published 2002

The other day it came to me that we need (some) lawyers. We need them in a really big way, and we need an organization that has the mandate to acquire funds and use them to pay top lawyers some really big bucks. Done right, it could have the biggest single impact on producing the quality of life that our industrialized society threatens to take away.

What’s Fair is Fair

This line of reasoning was prompted the other day, when I heard about a breast cancer conference which turned out to be fairly disappointing, because no one at the conference was able to expalin where it came from, or why we have such high rates of it.

Now to me, that comment was astonishing. The science is clear, and it stems from the same cause that has given rise to unprecedented levels of obesity. The mechanism, for the dietarily-aware is primarily due to the high levels of trans fats found in partially hydrogenated oils.

We know that partially hydrogenated oils contain high levels of trans fats. We know that the trans fats screw up the operation of the cell membranes. They’re like bad security guards who don’t let the good folks through, but let the bad ones pass easily. So toxins in the diet are absorbed through the gut when they should be rejected. Then they are passed into the cells. And since the female breast is 90-some percent fatty tissue, it makes a lot of sense that the problems would manifest there, first and foremost.

But that was just one trend. I was thinking about how how the companies make such a huge profit by selling stuff with partially hydrogenated oil. (They use it because it gives a similar texture and flavor as butter, only a lot more cheaply. If you start reading labels, you’ll find it everywhere. And french fries are generally fried in huge vats of the stuff.)

So they make the money, and the victims, I mean, “customers”, pay the cost. How fair is that?

Then I started thinking about water. I mean, I PAY to have good drinking water. I buy in bottles, because the stuff coming out of the tap tastes so foul, anymore. Not to mention all the stuff that’s dumped into it.

So they make money dumping their crap, and I pay to buy water. How fair is that?

We’re Getting There

In one area, at least, we’ve started to redress the balance. I speak, of course, of cancer. We now have tobacco companies footing a lot of the bill for cancer patients, and that’s only right.

But the important principle in that success is that the people who CAUSE the problem are the people who should pay the COST. They *should* shoulder the burden. It’s only fair.

Note:
To take it to the next level, it will be necessary to tease out that principle so that it stands on its own. Success in the tobacco lawsuits has also relied heavily on the fact that tobaco is addictive. However, while that is an important consideration, I think the really important principle, well founded in law, is that an individual (personal or corporate) is responsible for the harm they cause.

So, how will we get rid of the toxins, carcinogins, poisons and hormones that infect our foods? How will be eliminate the trans fats and airborne pollutants from our environment?

One answer may well be class action lawsuits.

Granted, this is something the Surgeon General’s office and the FDA should be doing for us. But the corporations that profit from these things can employ full time lobbying staffs and eloquent marketing campaigns. Until the money interests are dislodged from their firm entrenchment in the halls of legislature, that is going to be an extremely difficult battle to start, much less to win.

But the halls of justice present a more level playing field. There, even an extremely well-funded effort adversary has a difficult time making its case, in the absence of truth. Admitedly, it still requires a well-funded effort to present a convincing case, and to tear down the facade erected by corporations that are more interested in profit than in human health. But it can be done.

And if a private foundation were to start (shades of Nader!), then several interesting things begin to happen:

• The discovery motions begin to uncover what the corporation’s scientists have been telling them all along. And to any corporate official with a modicum of sense, that proposition is downright scary. That impact by itself will cause some number of “food” purveyors to clean up their act.
• The publicity that results from such trials will begin to put more information into the public consciousness.
• As people become more informed, more aware, and more alert, the pressure on government to act grows stronger.

All of these things would have a major impact on the quality of life in this country. Other interesting possibilities exist, as well, including:

• Lawsuits against medical schools that fail to disease prevention through nutrition (and, in the case of
  osteoporisis, through lifetime resistance-training exercise).
• Lawsuits against the AMA for failing to council doctors to recommend safe nutritional supplements instead of drugs with harmful side-effects, in the many cases where the latter is no more effective than the former.
• Possible lawsuits against the FDA, for failing to take into account the public interest in cases where it fails to pass a nutritional supplement for lack of extensive, expensive testing, and yet passes a manufacturer’s drug for the same condition on little more than the manufacturer’s say so.

Note:
In general, I think the FDA is well meaning and principled. But they could use a little watch-dogging to help them keep their priorities straight.

Makes me wish I *had* gone to law school, as I had thought about, once upon a time, when I was interested in constitutional issues…

But Reducing Profits will Increase Costs

When presented with this issue in an email Henry K van Eyken replied:

What I see happening is that businesses will raise prices, so that all the extra costs the corporations incur (lawyers, fines, etc.) simply tax the consumer. For them, it is just the cost of doing business.

Not that I really want more lawyers, but in this case the response you point to is precisely the point. When damage awards cut into profits, a lot of money is lost, and that affects stock prices. And when the “cost of doing business” in a way that is bad for public health causes the prices of harmful products to go up, then several things happen:

1. Those products disappear, because for the same money you can get healthy products.
2. When the number of suppliers of healthy products increases, the cost comes down, as a function of supply and demand.
3. Serious money gets spent to find healthy ways to lower costs. For example, there is one margarine that advertises itself as “trans fat free”. Whatever partial hydrogenation process they are using would get a humongous shot in the arm, and be used everywhere.

Right, now the cost of doing business is FREE. As a result, none of these desirable outcomes is occurring.

The Cost of Spam

Then there is another one that I forgot to mention. Spam.

I spent $30 on a spam eliminator. It still takes a couple of minutes every time I read my mail at home to use it and filter out the crap. At work, I get messages all day. When I hear that beep, I check my mail because it may be a response to one of the many requests for information I have sent out, that I need. When it turns out to be spam, I delete it — but in that 10 seconds, I have broken my train of thought and reduced my productivity — and that happens every 10 minutes or so throughout the day — because I NEED the information
I’m looking for.

Who is paying that cost? *I* am — and the company that pays me. And who is benefitting? Nobody, as far as I can tell. I can’t believe anybody reads that crap. But still, they send it. Can we get past the direct mail lobbies to create legislation. Maybe — when hell is leaning towards tepid. But a lawsuit? We could do that TODAY. And we don’t need to convince 99 congressmen to do it. One judge is all it takes.

The Cost of Obesity

And then there is obesity. Partial hydrogenation has a lot to do with that. We are now listing obesity as a cause of dozens of diseases. (Personally, I think that’s a foolish confusion of correlation with causation. But if some  credible scientist is saying it, then it can be used in court. Heck. They give us faulty food. I don’t mind giving them faulty logic.)

The Power of Information?

In a perfect world, ruled by omni-present knowlege bases that give all consumers the information they need at each purchase point, and which are not controlled by the companies selling the defective merchandise, that might happen. Am I holding my breath? I don’t think any of us are.

The fact is that the science of partial hydrogenation has been known for 30 years. It started getting in the books I read (interpretations of scientific journals) about 10 years ago. I’ve seen in a few articles since then, and it made one news broadcast last year. It will still take another 20 years before it is “common knowledge”.

That 50-year pace reflects the limit at which we, the public, can identify and absorb important new information, to the point that it is reflected in our laws. But how much damage has been done in that time? How many people have to suffer and die prematurely, before we call a halt?

The legal route has the advantage of speed (compared to the alternative). In addition, the sheer publicity puts pressure on the corporations involved.

What about Supplements?

Another example: Our foods are so devoid of nutrients that I have to take supplements. And I pay for them. Only I’m not that religious about it. At the Colgan Institute, where they deal with athletes, they rely on supplementation, because they can’t rely on the food. They did a lot of careful testing. You could pick one orange out of a pile and find 400 mg. of Vit. C. Right on spec. The one next to it? Zero.

What we have are cases where some people are allowed to make a profit, because other people underwrite the cost of their malfeasance.

The Bottom Line

The list so far is:

• Lung cancer
• Breast cancer
• Water
• Nutritional supplements
• Spam

And that’s just off the top of my head. When you see the real list of diseases that partially hydrogenated oils are implicated in, it’s scary. Then there are thalidomide, saccarchine, high-fructose corn syrup, and aspartame. The list goes on and on. At some point, the count of potential infractions adds up to “depraved indifference” on the part of one or more mega corporations.

To the degree that *we* pay the costs, while *others* reap rewards stemming from those very costs — to that exact degree we are “serfs”, making money for the lords we “serve”.

Do I want to see people make a profit? You bet! It’s the number one social mechanism in the world for getting what we need, when we need it, at the lowest possible cost, in the highest possible volume.

But…

That profit has to be based on providing real value. When a manufacturer sells a swing set that breaks and harms children, we take away their profits. When an automobile manufacturer sells a defective product that kills people, they are forced to pay damages and issue recalls. (I’m always astonished, a few weeks later, to see the ads telling us how much they care about us, after dragging their feet for years in court and in the legislature.)

In short, we make sure darn near everyone *except* food producers and drug manufacturers have our best interests at heart. It’s time we enforced the same rules on them.

And it’s not because we don’t want to (most of the time). It’s just that science moves a lot more rapidly than our laws can keep up with.

The Power of a Discovery Motion

Early last century, the only test for anemia was ineffective if a person was taking folic acid supplements. (Folic acid, or folacin, is a B-vitamin that controls the adsorption of other B vitamins.) The FDA’s response was to limit the amount of folic acid you could put into a supplement.

Result? When you take a B-vitamin supplement, you really are creating “expensive urine”, because the B-vitamins are synergistic. You can only use use as much as you have of the least one. And since folic acid controls digestion, it limits how much you can take in. So if you are taking a 50 mg B supplement, and it only has 400 or 800 micrograms of folacin, the other 49.2 mg goes down the drain!

The impact? Vitamins get an undeserved bad rap in general, B-vitamin supplements are useless in general (so take brewer’s yeast, instead), and public health suffers.

But guess what? There have been better tests for anemia for the last 50 years!! (More like 60, now.) No one even *uses* that old test anymore.

So why hasn’t the FDA changed its rules? You tell me. Or better yet, let’s get a discovery motion and FIND OUT why.

Pardon my intensity, please. But I’ve been trying to figure out how to improve public health for a very long time. It is frustrating to have learned so much, and yet know that anyone who does not invest the same amount of time and effort is a doomed victim of a system that feeds them great tasing, poisonous junk in a shiny wrapper with lots of feel-good advertising. (And even with what I know, I get victimized by what I don’t know, and by the fact that the junk is so readily available.)

I’ll continue to do what I can to educate. This diatribe (for any who get this far) has been one step in that direction. But it is a very small step.

Politics vs. Law

I’ve considered running for office. But that’s a narrow platform to run on, and there is a huge collection of entrenched interests in the way.

Executive decree from the surgeon general would be great. But where somehow Surgeon General Koop was able to get the public’s attention and make a difference, the warnings given by Clinton’s surgeon general (I can’t even remember his name!) on the subject of partial hyrdrogenation went almost totally unnoticed.

That leaves the judicial system. I am fortunate to have observed Rusty Day fighting in Superior Court for the right of the Java platform to remain unadulterated by Redmond’s machinations. I was expecting an intellectual struggle, with interesting arguments on both sides. What I saw instead was a knight, devoted to bring out the truth, and defending the truth. I saw a lot of maneuvering and sophistic ploys on the other side, which helped turn what I expected to be an even match into a white knight/black knight contest, but I was totally taken with the image of a knight standing up to do battle for those unable to defend themselves.

But it takes a *really* strong knight. It’s no place for the faint of heart. If logic were a requirement, the matter would have been decided in a couple of hours. There was a tenuous thread of logic on the one side (not totally obvious, I grant, but it was there). On the other side, there was argument ad hominum, argument by derision, argument by reinterpreting what was said and knowing down that straw man, attempts to change the subject, and any other form of verbal chicanery, I suspect, that the practitioners thought they could get away with. I waited for a counter to the real argument that had been laid at their doorstep, but I waited in vain — it never came.

And that was only a few days! Cases like those I’m suggesting could go on for years. It takes a really intelligent lawyer, with great a collection of experts, superb preparation, and a remarkable ability to think on their feet. In other words, it takes someone who can make one hell of a living at anything they should choose to do.

But if we can someone of that caliber to focus on the public good, we make an enormous difference in our public welfare, by providing the one MAJOR “check and balance” that our system is missing — one that allows people to make a profit by killing people and siphoning their money slowly, by degrees, rather than all at once like an honest crook.

Copyright © 2002-2017, TreeLight PenWorks

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