CHEESEBURGER KINGPINS: AMENDING COMMONSENSE CONSUMPTION ACTS AND VALIDATING FOOD ADDICTION AS A LEGAL CONCEPT

Food is a powerful drug. Big companies have pumped meals full of addictive substances that keep people hooked on unhealthy foods at the expense of their health. Modern scientific research has demonstrated that hyper-palatable foods have the same neurological effects as other addictive substances. Given that unbridled consumption of food can have serious health effects, food addiction is a dangerous illness. Despite these deleterious impacts, the industry often evades robust regulation or liability. Instead, states have shielded Big Food from liability. Twenty-six states have passed statutes, called Commonsense Consumption Acts (CCAs), that bar the private regulation of Big Food through food addiction tort and consumer protection lawsuits.

These statutes suffer from two main flaws. First, they are scientifically unfounded. They espouse untrue and harmful positions on food addiction’s relationship with personal choice. Second, they inappropriately foreclose judicial consideration of food addiction. This limits plaintiffs’ ability to seek redress for real harms and prevents judicial validation of food addiction. Most of the statutes hinder both tort and unfair and deceptive acts or practices claims alleging obesity-related harms, preventing the issue from being properly litigated. Food addiction should be given its day in court.

CCAs should be amended to accord with modern science, track public sentiment, allow for plaintiffs to receive redress, and vitiate judicial consideration of food addiction.

The full text of this Note can be found by clicking the PDF link to the left.

* J.D. Candidate 2026, Columbia Law School; Articles Editor, Columbia Law Review. I would like to thank Professor Ashraf Ahmed for his valuable mentorship throughout the drafting process. For their helpful input, I would also like to thank Jennifer Brown, Dr. Scott Brown, and Abbe Riffle. Finally, I would like to thank the members of the Columbia Law Review for their incredible editorial work.

Introduction

Sara Somers, a survivor of food addiction, once counseled that “there is a solution to the addiction of compulsively eating that is killing people.” 1 Sara Somers, Saving Sara: A Memoir of Food Addiction, at xv (2020). Like many, Somers struggled with food addiction. Her life was plagued with, as she described, “sullenness, self-centeredness, self-pity at being fat, anger, blaming others, and an inability to stop bingeing once certain substances entered [her] system.” 2 Id. at xi. As with other substance-based addictions, food addiction left Somers feeling “helpless and powerless.” 3 Id. And yet, as so often happens, her addiction was met with resentment and “violence.” 4 See id. (meaning intense vitriol and pushback). Although neuroscientists and psychologists validate food addiction as a disease, 5 See infra section II.A. many still consider it a “kind of defect of the will,” 6 R. Jay Wallace, Addiction as Defect of the Will: Some Philosophical Reflections, 18 Law & Phil. 621, 621 (1999). not a medical condition. Food addicts are left rejected and discredited, without meaningful support to counter their addictions. But for Somers, food-addicted people do not lack “willpower.” 7 Somers, supra note 1, at xii. Rather, they “exert tremendous will to overcome the prejudices that are heaped on them.” 8 Id.

The main prejudice, of course, is the erroneous assumption that food-addicted people can simply stop eating in great quantities. 9 See Lee J. Munger, Is Ronald McDonald the Next Joe Camel? Regulating Fast Food Advertisements that Target Children in Light of the American Overweight and Obesity Epidemic, 3 Conn. Pub. Int. L.J. 390, 410 (2004) (“Many believe the harm caused by eating fast food is indirect, remote, or caused by intervening circumstances, such as . . . poor personal and independent choices . . . .”). This perception is prevalent on the internet. Comments on popular social media websites reflect this troubling view. For example, the influencer Jesse Mulley, who has lost over two hundred pounds, maintains a video series called “Curls & Criticism” in which he responds to his detractors’ comments while curling weights. See, e.g., Video Posted by Jesse Mulley (@progressive.overhaul), Instagram, Curls & Criticism: Part 6 (Nov. 10, 2024), https://www.instagram.com/reel/DCNEqzRtIiC/ (on file with the Columbia Law Review) (responding to a critic’s charge that he shouldn’t “act like loosing [sic] weight is something hard to do”). Many of those comments dismiss struggles with food addiction and weight loss. See, e.g., id. Food, these critics decry, is not an addictive substance. 10 See Bonnie Hershberger, Supersized America: Are Lawsuits the Right Remedy?, 4 J. Food L. & Pol’y 71, 90 (2008) (“Despite the multiple factors that can contribute to obesity, the public continues to believe that personal choice is more influential than unhealthy food offered by the food industry, so much so that a large majority of jurors deems lawsuits against fast-food companies to be bogus.”). They surmise that the problem must be internal: Food-addicted people must be too lazy or too weak to get in shape. But neuroscience counsels the opposite. Scientific studies have validated the existence of food addiction. 11 See infra section II.A. For a startling example, when given the choice between drinking water laced with sugar or cocaine, most lab rats choose to abuse the sweets. 12 Magalie Lenoir, Fuschia Serre, Lauriane Cantin & Serge H. Ahmed, Intense Sweetness Surpasses Cocaine Reward, PLoS One, Aug. 1, 2007, at 1, 6, https://journals.plos.org/plosone/article/file?id=10.1371/journal.pone.0000698&type=printable [https://perma.cc/VGH8-WCTH] (“[T]he discovery that intense sweetness takes precedence over cocaine, one of the most addictive and harmful substance currently known, suggests that highly sweetened beverages, such as those widely available in modern human societies, may function as supernormal stimuli.” (footnote omitted)); see also Denise Gellene, For Rats, Sweets Are the Drug of Choice, L.A. Times (Nov. 10, 2007), https://www.latimes.com/archives/la-xpm-2007-nov-10-sci-sweet10-story.html [https://perma.cc/52MT-ATEA] (“Researchers have learned that rats overwhelmingly prefer water sweetened with saccharin to cocaine, a finding that demonstrates the addictive potential of sweets.”); Marta Zaraska, Food Can Be Literally Addictive, New Evidence Suggests, Sci. Am. (Sep. 11, 2023), https://www.scientificamerican.com/article/food-can-be-literally-addictive-new-evidence-suggests/ [https://perma.cc/P7K5-8X7P] (“Given the option, most rats will choose sugar instead of cocaine. Their lust for the carbohydrate is so intense that they will go as far as to self-administer electric shocks in their desperation to consume sugar. Rats aren’t alone in this drive. Humans, it seems, do something similar.”). This jarringly simple fact reveals a growing conclusion in the scientific community: Food is an addictive substance. 13 See Michael Moss, Hooked: Food, Free Will, and How the Food Giants Exploit Our Addictions 20–22 (2021) [hereinafter Moss, Hooked] (describing the Yale Food Addiction Scale, which measures the addictiveness of food). Like drugs and alcohol, certain foods trigger the neural centers in the brain responsible for forming addictive behaviors. 14 See Nora D. Volkow, Gene-Jack Wang, Dardo Tomasi & Ruben D. Baler, The Addictive Dimensionality of Obesity, 73 Biological Psychiatry 811, 812 (2013) (“[R]esults strongly suggest the possibility that food and drugs may be competing for overlapping reward mechanisms.”). Despite many scientific efforts to validate food addiction 15 See, e.g., Jose Manuel Lerma-Cabrera, Francisca Carvajal & Patricia Lopez-Legarrea, Food Addiction as a New Piece of the Obesity Framework, Nutrition J., Jan. 2016, at 1, 3 (identifying food addiction as a causal factor for a multitude of adverse health conditions). and growing public acceptance, 16 See Helen K. Ruddock & Charlotte A. Hardman, Food Addiction Beliefs Amongst the Lay Public: What Are the Consequences for Eating Behaviour?, 4 Current Addiction Reps. 110, 111 (2017) (outlining recent empirical studies indicating growing public belief in the existence of food addiction); see also Moss, Hooked, supra note 13, at 133 (describing the growing acceptance of the existence of food addiction among the public). the concept has yet to achieve legitimacy among policymakers. 17 See, e.g., Personal Responsibility in Food Consumption Act of 2005, H.R. 554, 109th Cong. § 2(a) (“Congress finds that . . . fostering a culture of acceptance of personal responsibility is one of the most important ways to promote a healthier society . . . .”).

Concerningly, another set of actors is meticulously aware of the prevalence of food addiction—the food industry. 18 See Mary Whitfill Roeloffs, Did Tobacco Companies Also Get Us Hooked on Junk Food? New Research Says Yes, Forbes (Sep. 8, 2023), https://www.forbes.com/sites/maryroeloffs/2023/09/08/did-tobacco-companies-also-get-us-hooked-on-junk-food-new-research-says-yes/ (on file with the Columbia Law Review) (describing the intentional choice of putting addictive ingredients in mass-produced foods). Food producers intentionally “pump[] edible and drinkable products full” of addictive additives like “sugar, caffeine, fat, sodium and carbs,” employing the “same tactics” the tobacco industry used to hook the country on cigarettes. 19 Id. Consumers across the United States become dependent on these “hyper-palatable” foods (HPFs), which contain calorically rich, unhealthy, and addictive substances, driving up the profits for producers. 20 Id. HPFs are food products that have high concentrations and “combinations of fat, sugar, sodium, and carbohydrates that are designed to maximize palatability and consumption.” Tera L. Fazzino, Kaitlyn Rohde & Debra K. Sullivan, Hyper-Palatable Foods: Development of a Quantitative Definition and Application to the US Food System Database, 27 Obesity 1761, 1761–62 (2019). The “food industry has well-established food formulas” utilizing these ingredients to create exceedingly enticing foods. Id. And given the lack of any meaningful regulation of HPFs, consumers are left to fend for themselves. 21 See Roeloffs, supra note 18 (“Despite growing evidence that such foods are harmful, there are no federal regulations in the United States regarding foods that are hyper-palatable.”).

Private law presents a potential alternative to redress this issue. Tort litigation has proven to be a viable tool for advancing the interests of consumers against large corporations peddling harmful products. 22 See Richard J. Pierce, Jr., Encouraging Safety: The Limits of Tort Law and Government Regulation, 33 Vand. L. Rev. 1281, 1282 (1980) (“Through tort law and safety regulation, the legal system places implicit values on human life in varying contexts and translates those values into either commands or inducements to reduce accident costs.”). In recent years, the tobacco 23 Press Release, DOJ, Court Issues Order Requiring Cigarette Companies to Post Corrective Statements; Resolves Historic RICO Tobacco Litigation (Dec. 6, 2022), https://www.justice.gov/archives/opa/pr/court-issues-order-requiring-cigarette-companies-post-corrective-statements-resolves-historic [https://perma.cc/F3DF-H3YH]. and opioid 24 Opioids, Nat’l Ass’n Att’ys Gen., https://www.naag.org/issues/opioids/ [https://perma.cc/3B7R-F9ZN] (last visited Oct. 6, 2025). industries have settled lawsuits with multiple plaintiffs over the harms of their dangerously addictive goods. Persistent plaintiffs forced these industries to shift their practices, benefiting the health of consumers. 25 See, e.g., Walter J. Jones & Gerard A. Silvestri, The Master Settlement Agreement and Its Impact on Tobacco Use 10 Years Later, 137 Chest 692, 692 (2010) (discussing the decrease in tobacco use after the settlement of a class action lawsuit brought by state attorneys general against the tobacco industry). And media coverage of these massive lawsuits spurred widespread conversations about addiction. 26 For an example of media coverage on massive lawsuits that discuss the danger of addiction, see Who Is Really Benefiting From the Tobacco Settlement Money?, Am. Lung Ass’n: Each Breath (Feb. 2, 2016), https://www.lung.org/blog/who-benefit-tobacco-settlement [https://perma.cc/3YVE-BRCN] (“[T]here was a time when the tobacco industry even more openly and brazenly marketed tobacco products to our kids. It was then and continues today to be their business plan: they hook kids young, which can lead to a lifetime of addiction and tobacco industry profits.”). The judiciary’s constant reaffirmation of addiction in mass tort cases has legitimized it as a palatable legal concept. 27 The Supreme Court recently recognized the validity of addiction as a legal concept. See Harrington v. Purdue Pharma L.P., 144 S. Ct. 2071, 2078 (2024) (“Because of the addictive quality of opioids, doctors had traditionally reserved their use for cancer patients . . . .” (emphasis added)). Producers of addictive products have recognized that judges consider addiction as a harm in mass tort cases, which has encouraged settlements. Christina Jewett & Julie Creswell, Juul Reaches $462 Million Settlement With New York, California and Other States, N.Y. Times (Apr. 12, 2023), https://www.nytimes.com/2023/04/12/health/juul-vaping-settlement-new-york-california.html (on file with the Columbia Law Review) (“[Juul’s settlement] follows other[s] . . . that took Juul to task for failing to warn young users that the high levels of nicotine in their e-cigarettes would prove addictive.”).

In its most extreme form, food addiction can cause severe obesity, which is comorbid with a plethora of other health impacts. 28 See Lerma-Cabrera et al., supra note 15, at 3 (finding that food addiction has a high correlation “with binge eating disorder, compulsive-overeating, [and] bulimia nervosa,” which in turn are all highly correlated with obesity). Given the judicial and scientific validations of addiction litigation and coercive food practices, 29 The Supreme Court has even come close to acknowledging the addictive quality of food in a nontort context. In 2001, the Supreme Court admitted that the food industry, similarly to the tobacco industry, hooks its consumer base on harmful products. Though Justice Clarence Thomas stopped short of asserting that food is “addictive in the same way tobacco is,” he acknowledged that “exposure to fast food advertising can have deleterious consequences that are difficult to reverse.” Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 588 (2001) (Thomas, J., concurring in part and concurring in the judgment). food addiction seems, at first blush, a viable basis for tort litigation. Due to strong food industry lobbying and reactionary legislatures, however, a majority of states prohibit any sort of tort litigation alleging obesity-related harms against food providers. 30 The National Restaurant Association spearheaded this initiative. See Cara L. Wilking & Richard A. Daynard, Beyond Cheeseburgers: The Impact of Commonsense Consumption Acts on Future Obesity-Related Lawsuits, 68 Food & Drug L.J. 229, 229 (2013) (“The National Restaurant Association . . . took a leadership role and mounted federal and state campaigns to enact ‘tort reform’ legislation immunizing the food industry from tobacco-like lawsuits.”). They do this through misguided statutes, known as Commonsense Consumption Acts (CCAs), which were passed beginning in the early 2000s as a response to seemingly frivolous obesity-related tort litigation. 31 See id. (discussing food providers’ lobbying efforts after early obesity-related tort litigation). The statutes closed off judicial consideration of any obesity-related tort and, in some cases, explicitly denied that food addiction could be a scientific and legal concept. 32 See, e.g., Colo. Rev. Stat. § 13-21-1102 (2025) (claiming that obesity is a matter of choice). Furthermore, they raised the burdens of proof for nontort claims, making any recovery for food addiction harms essentially impossible. 33 See infra section I.C.2. This foreclosure was premature. The statutes were passed before knowledge of food addiction became common among the scientific community or the American public. 34 According to Dr. Adrian Meule, “[i]n recent years, the concept of food addiction has become increasingly popular” with the American public. Adrian Meule, Back by Popular Demand: A Narrative Review on the History of Food Addiction Research, 88 Yale J. Biology & Med. 295, 295 (2015). His analysis of the scientific community’s acceptance of food addiction is more nuanced. Meule argues that the scientific concept of food addiction has been around since the 1950s or earlier. Id. But Meule also concedes that “[a]lthough food addiction has been discussed in the scientific community for decades, it remains a highly controversial and heavily debated topic.” Id. at 300. He also indicates that the recent validation “is reflected not only in a high number of media reports and lay literature, but also in [the] substantial increase in the number of scientific publications.” Id. at 295 (footnotes omitted). Therefore, though the concept may have existed before the modern era, it is only now being given popular legitimacy by the scientific community. See infra section II.A. Modern science undermines the justifications for CCAs, directly contradicting the legislatures that invalidated food addiction as a legal concept. In light of these changed circumstances, state legislatures should reevaluate the viability of CCAs.

This Note argues that CCAs should be amended to recognize food addiction as a legal concept. Part I will address the history of addiction litigation, including the ill-fated attempts at pleading obesity-related torts and the subsequent barrage of CCA enactments. Part II will identify the two main issues with CCAs: their failure to accord with modern behavioral science and their premature foreclosure of judicial consideration of obesity and food addiction. Part III will advocate for the amendment of CCAs to legally validate food addiction and to open the courthouse doors to the possible adjudication of obesity litigation.