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We appear to have hit a couple of nerves with yesterday's commentaries…

For example, in a piece about the US House of Representatives considering a bill that would prevent so-called obesity lawsuits from being filed against fast food chains, we wrote that we are conflicted. "On the one hand, we hate to see frivolous lawsuits clogging up the system, hate to see the notion of personal responsibility dismissed as 'old-world thinking.' On the other hand, why shouldn't the courts be making these decisions rather than legislators?"

To which we got more than few responses.

MNB user Philip Herr wrote:

Why shouldn't the courts be making the decisions instead of congress? Because it isn't the courts that make the decisions. It falls to juries to make the decision and they are easily swayed by emotional arguments.

We thought that was the justice system.

Another MNB user wrote:

In our government, the legislative branch is in place to establish law. The judicial branch is in place to interpret and apply law.

If the legislature decides to enact a law preventing "obesity lawsuits" against food companies, they are well within their rights to do so. In fact, that's their job! Should the courts be involved? Certainly. How? By interpreting and applying the laws that relate to these kind of cases. As long as no specific laws exist regarding or preventing "obesity suits", the courts should be deciding the merits of each lawsuit based on what laws do prevail and relate. If or when the legislature enacts specific laws to prevent "obesity lawsuits", then the courts will have a better, more defined role in the whole process.

Unfortunately, we are conflicted because many are looking to the courts to make decisions and establish precedence about what's legitimate or not. In actuality, we should be looking to our legislators to make, amend or repeal laws as needed so what's legitimate or not becomes ever clearer. Granted, looking to the government can be a scary proposition, but that's the way our system is designed to work. The LAW of the land is what prevails. Make the laws as specific and clear as they need to be to eliminate the "loopholes" and "gray areas." That will be the greatest detriment to the frivolous lawsuits that seem so prevalent in today's society.

MNB user David French wrote:

Let me ease your conflict. This is a perfectly appropriate topic for Congress, because legislators should make laws and courts interpret them. The trial lawyers' argument that these things should be decided in courts is deceptive. They have the resources to keep bringing cases until one argument works. Trial lawyers have also shown that they can be very skilled at venue shopping until the right case strikes pay dirt in the right court, then they have a precedent that can be used for other cases. Overall tort reform is our preference, but the Keller bill's protection from reckless litigation is an important intermediate step for the food industry.

Another MNB user wrote:

It has always been my understanding that the courts are in place to uphold, interpret and act as the deciding factor as to whether a law is constitutionally sound. The court system and Judges are not in place to set the law that governs the land. There is a distinct difference. There is a reason (and a valid reason) for the three branches of Government we have today.

On the obesity front, I believe our elected officials have bigger fish to fry (no pun intended, but it works!) than this issue. Fiscal responsibility and terrorism come to mind quite easily.

MNB user Bob Bartels wrote:

It seems to me that congress is passing legislation to keep the courts and trial lawyers from legislating!

We had a story yesterday about how the US Department of Agriculture (USDA) is prohibiting the private testing of beef for bovine spongiform encephalopathy (BSE), better known as mad cow disease - despite the fact that USDA does only limited testing on its own. USDA's concern is that if private laboratories start testing beef for mad cow disease, which conceivably would allow companies to market their products as "safe," it would confuse consumers. The USDA also reportedly is concerned that private labs might identify "false positives," creating needless panic.

We have a profound disagreement with USDA on this issue. Mad cow disease is a problem, in the US and elsewhere. Some if it is real, some of it is perceptual. But it is a problem that needs to be dealt with.

And we think that retailers, who are on the front lines of this issue, ought to challenge the USDA's position. Do what's necessary to get private testing of your beef, publicize the results, and let the government challenge the effort. There is absolutely no downside in looking out for your customers.

One MNB user wrote:

So let me get this straight… the USDA would rather have us be dead than confused?... I'm so confused...

Another MNB user offered:

We currently have independent labs testing for heavy metals, pesticides, and many other things that are required if your product or ingredient is purchased or incorporated into any mass market company's product line. If a problem occurs, it is then demonstrated that the originator is responsible or not. It's a financial burden that many smaller ingredient companies must bear in order to even be considered for incorporation into mass market. I believe that it is the FDA's jurisdiction and not the USDA's, however the model seems to work by having a larger scope of product tested without the direct limitation of the overseeing agency. The resistance of the USDA feels a bit like political positioning with more than one hidden agenda.

MNB user Steve Haubner had some thoughts:

I'm new to your service, and thank you for the useful information and topics.

Your views on Mad Cow (and Fast Food lawsuits), however, indicate a lack of common sense. Are you listening to the press, or are you looking at the facts? Over the past twenty years, at least, the press seems bent on stirring up public frenzy, with little thought of the end result -- or the public or personal costs involved.

I have worked for two European-based companies and am very aware of Europe's attitudes toward Mad Cow, US beef, etc. However, let's take a look at the facts and do a little responsible cost/risk analysis.

Human Risk. Supposedly, 150-180 people in Europe have died from the human form of Mad Cow disease -- since the 1980s (about 20 years). 150 people is not an insignificant number, especially if you are one of them, and if the deaths are preventable. However, this could by no means be considered an epidemic. How many people in the U.S. have suffered from this illness?

Prevention. This disease is only transferred, apparently, by consuming tissue from the central nervous system. Obviously, more is being learned about this malady. However, if in 20 years, this is the conclusion, why don't we focus on ways of avoiding products derived from this tissue -- rather than inciting fear of beef consumption altogether.

Costs. How much does testing cost Europe and Japan? Have their measures improved the situation? These are all questions to be considered and researched.

The real risk here is not whether or not our food supply is safe. The real risk is what public and global opinion will do with this situation - -and how much we will allow the press's lack of common sense deprive us of our own wits...

Everyone wants to pick on the press. Ah, well…

MNB user Patrick Mast wrote:

I think that it is with good reason that the USDA is prohibiting the private testing of BSE. Look at Japans most recent case of BSE where the rapid test was positive but the actual universal gold standard test came back as false/positive. All that panic for nothing! The testing should be done by an impartial third party.

On the other hand, some might argue that the government isn't behaving impartially.

Another MNB user chimed in:

Dr. Rod Bowling at Smithfield proposed an excellent plan last week at the International Livestock Congress in Houston: test the North American herd (that is all of us, Canada and the USA, which is really a single herd) in order of risk levels. Without giving you the full parameters, suffice it to say that there are 300,000 animals in the highest risk category (basically those over 30 mos). Statistically speaking, if 100% of those animals are tested and 5 or less are positive (as the scientific community seems to expect will be the case), we have a very strong case for arguing that the herd is BSE safe. If more than 5 test positive, then we must move to test the next "less at risk group" in the herd.

It is wasteful and time-consuming to test every animal born and living today when we know where the problem will show up, IF IT EXISTS. Young animals, for example, would not even be manifesting the disease as yet and could not transmit it to other animals or to humans. And young animals slaughtered at around 20 mos are the bulk of the North American herd, and the animals that consumers eat as beef. The older, dairy and breeding animals are where the testing needs to be concentrated.

The testing process would provide a solid, scientific answer addressing everyone's concerns. And the act of testing as it was recorded and explained to the public, would do a lot to explain BSE. People are eager to know what can/cannot happen to put beef consumers in jeopardy with respect to BSE.

As it stands now, the proposal is to test some 40,000 anyway. The increased cost to do 260,000 more would more than be off-set by the returns in terms of consumer confidence and the potential monetary losses that could be experienced by the industry if one more animal tests positively. If another, single, random case occurs, it will not tell us anything more about if we "have a big problem" than the first one in Canada and the first one in the USA. But in such a case, consumers would rightfully be confused, suspicious and upset that nothing clear and meaningful had been done since 23 Dec 2003. They could react by boycotting beef domestically (which has not happened). And for sure, this would impact our export trade for an even longer period.

Americans trust the USDA and their scientific community: they deserve a science-based response, of responsible proportion and cost, which gives clear answers. We need to do this, now, ASAP.

We've had a couple of stories about Martha Stewart over the last few days, and we've demonstrated a certain lack of sympathy for the domestic diva.

MNB user Linda Allen responded:

All of the wise-cracking about Martha Stewart's business and professional activities, and the jokes making fun of the fact that she may go to jail reflect a certain lack of basic humanity. And yes, guys*, good manners.

(*You have plenty of company in your approach, Kevin!)

The accusations and substance of the Stewart case, and the particular manner in which this wealthy and successful female executive is being treated by the media, present serious legal and sociological issues in this day and age.

They are deserving of more than cheap shots at the expense of the accused.

Nobody wants to believe it, but we don't think of Martha Stewart primarily as a female. Gender has nothing to do with our reaction to her.

Another MNB user wrote:

It's kinda obvious how you feel about Martha Stewart. But however you feel you'll have to admit she was successful and she brought joy and information to a lot of people. And when I used the term scapegoat, I meant scapegoat - "One that is made to bear the blame of others."

As I said, she probably did do something wrong, but she is in fact being used as an example and as a distraction from all the other white collar crimes. You said you didn't think other cases were comparable, well, these cases can be compared on the very basic notion of justice and the integrity - or lack thereof- of the law.

MNB user Richard Lowe wrote:

I believe there is an old saying about putting all one's eggs in the same basket. If Kmart were still using those old household names like Sherman Williams, Dutch Boy, etc., etc. it would not have this problem.

Same goes for all the sports heroes and other models or actresses for clothes, etc. Humans will make mistakes, like rape, drugs, etc. What mistakes can Sherman Williams, Dutch Boy, or Hinge-It make? Target, Wal-Mart and the others should learn from these lessons, too. Martha always turned my stomach right from the beginning. Kmart should not have made her God. Lots of people have their own good and better ideas. That is what makes this world go round!

Just one thing (and we think you didn’t mean what you wrote). Rape isn’t a mistake. It is a bad deed committed by a bad person. Case closed.

We had a story yesterday about how there was a report at a recent American Heart Association meeting concluding that "Americans eat too much overall, they eat too much fat, and they do not eat enough fruits, vegetables and high fiber foods." The result, according to doctors, is a likely increase in heart disease.

MNB user Jim Johnson wrote:

When applied correctly, the Atkins diet and all the other low-carb fad diets require that you consume vegetables, limited carbs and foods high in fiber. They also warn against too much "high fat" meals, such as beef as well as warn that some carbs must be consumed. I have been on the Atkins diet for a year now and frequently review the plan to make sure that I am not eating the wrong items. My blood total cholesterol level has dropped from 210 to 163. I have shed 75 pounds and I am in the best shape I've been in since leaving college wrestling. Readers should ask themselves if they have really read and fully understand the diet parameters. Do they just start eating protein and shun all the other required nutrients? Most dieters on low carb diets have never taken the time to read past the introduction page of the book and they wonder why they are not losing and their cholesterol is rising. Duh!

And MNB user Bill Justin chimed in:

I have seen remarkable results concerning the Low Carb diet with many of my friends.

Long term over many years, weights has dropped, cholesterol counts have dropped and blood pressure has become normal. My daughter lost 100 lbs and it changed her life, she is now an exercise guru and teaches aerobics.

Yes, exercise is very important but the real culprit was and is sugar, we eat more of this in this day and age than ever before in our history. I would think that the number heart attacks will go down and not up proposed.

MNB user Edward Burg wrote:

As a 32-year old triple-bypass patient, I am surprised that it has taken this long for reports such as this one to emerge. After my heart surgery, I was forced to become more aware of my fat and cholesterol intake.

The whole Atkins-fueled, low-carb diet has troubled me since day one. To say that no risk is posed by ingesting only low-carb foods is misleading. Many of the "approved" foods are quite high in saturated fat and cholesterol - i.e., eggs, red meat, etc. Although your system ends up breaking down the fat and releasing it through your urine, the fat is first forced to travel through your bloodstream to get to your liver. This poses an incredibly high risk for buildup of plaque in the arteries.

As always, the best bet for losing weight is moderation of diet combined with exercise.

We've had a number of stories about reimportation over the past few months, and they've prompted a lot of responses. Yesterday, MNB user Ben Irby wrote, "I felt a little sad today for the state of our health as a nation as I read the view of the person who spends $600 per month for medicine. I'm in my late 20's, and this is all it takes to keep me exercising and eating right. If more people would take the initiative to look after their health, and avoid having to take so many drugs, the re-importation issue would be a much smaller deal."

One MNB user replied:

To Ben Irby re the importation and cost of drugs…

I weigh within 10 pounds of my College days some 40 years ago. Exercise every day and healthy for being over 65. I run and weight lift and yet I do take 3 scripts for other causes. So, my friend, keep doing what you are doing for another 40 years and just hope and pray that by then the government and pharmacies have developed a plan for realistic priced prescription.

Another member of the MNB community wrote:

My mother is 85 years old. She has taken excellent care of her health and weight through the years. She has taken supplements and vitamins for over 30 years and religiously watched her fat and calorie intake during that period. She quite smoking before that time. She got a lot of exercise. She had a heart attack a bit over a year ago. Medications necessary for her survival set off a chain reaction of health issues that were on going for about a year.
She is finally stabilized. She takes medications for her stomach, cholesterol level, heart, and blood pressure on a daily basis. Cost of these medications is astronomical (I do not have an exact monthly figure) which makes her budget on Social Security very tight since she is still maintaining her home. There are many of her contemporaries in the very same condition. Fortunately, she has been given many drug samples for the most expensive medications she takes--one is $90 a month alone.

Sure, one can find fat consuming, smoking, overweight seniors but there are many, many who are not any of those things who still struggle to make ends meet because of needing expensive medications. Go to a mall in the morning, stop some of the walkers and ask them about medication costs in their life. These are usually physically fit from exercise. Bet the story they tell is the same--big expenses for drugs necessary to maintain health.

Our best to your mom.

Yesterday, we reported that FMI's Paul Schulz received the Herbert Hoover Award at the FMI Annual Business Conference. And MNB user Ted File noted:

I recall many years ago when Paul came to SMI and at that time served as an intern for 2 years. Having followed Paul from that time I want him and others to know that he is about consistent as the day is long. He never deviates from the projects and responsibilities he undertakes. And to top it off, he was and I assume still is a great tennis player. Hats off to a great individual and a deserving one.
KC's View: