Eatery makes patrons sign liability waiver for fatty dessert - Seattle's 5 Spot using gimmick to ridicule lawyer

Blaine Harden
Washington Post


SEATTLE -- In an attempt to make a law professor in the other Washington look silly, a popular restaurant here is requiring customers to sign a liability waiver before they eat a fat-by-design dessert called The Bulge.

The waiver, a semi-serious gimmick that might be the first of its kind in the United States, is displayed in poster-size dimensions near the front door of the 5 Spot, an eatery on Seattle's affluent Queen Anne Hill.

"I will not impose any of sort of obesity-related lawsuit against the 5 Spot or consider any similar type of frivolous legislation created by a hungry trial lawyer," the release says. After a diner signs it, a waiter hauls out a sugarcoated, deep-fried, ice cream-swaddled, caramel-drizzled, whipped-cream-anointed banana.

"We thought, what can we do to illustrate how stupid it is to make restaurants responsible for monitoring the eating habits of Americans?" said Peter Levy, co-owner of the 5 Spot. "We came up with the most fattening and delicious dessert we could think of."

In the week since The Bulge appeared on the menu (and has been ordered by more than 150 patrons, most of them women), Levy said he has been besieged by calls from foreign radio stations. "They all ask the same question: `What are you crazy Americans doing now?"'

The lawyer being mocked by the fat banana is John Banzhaf III, a professor of public interest law at George Washington University Law School. He is a successful anti-tobacco litigator who recently turned his attention to America's obesity epidemic.

Banzhaf is trying to be amused by Seattle. "Obviously, it is a joke and I have helped the restaurant publicize it," he said. "This, however, is not a funny subject."

He pointed to study after study showing how un-funny it is that Americans are fatter than ever before.

The surgeon general has said that 300,000 deaths a year are associated with being overweight and that the societal cost of obesity is about $117 billion a year. A Centers for Disease Control and Prevention study warned this year that one in three children born in 2000 will become diabetic unless many more people start eating less and exercising more. A recent ACNielsen survey found that six of 10 Americans believe fast-food restaurants are a cause of the obesity epidemic.

All of this, Banzhaf said, is helping him and other plaintiff's lawyers lay a legal foundation for lawsuits against companies such as major fast-food chains and manufacturers of processed food.

That foundation, though, was cracked this month by a federal judge in New York who dismissed a lawsuit against McDonald's. The suit contended the company was hiding the health risks of Big Macs and Chicken McNuggets. McDonald's has trumpeted the obesity ruling as "recognition that the courtroom is not the appropriate forum to address this important issue."

But Banzhaf argues that, as was the case with tobacco, it takes time for legal theories to coalesce in a way that forces major societal change.

Change appears to be gathering momentum. McDonald's announced this week that it has hired talk show host Oprah Winfrey's trainer to include a fitness program brochure with its new meal-size salad. To compete against salad meals at McDonald's and Wendy's, Burger King has introduced a low-fat baguette chicken sandwich.

Under pressure from Banzhaf and others, New York City schools announced a decision, starting this month, to ban the sale of candy, soda and sweet snacks from school vending machines, and trim fat from school lunches.

Insurance companies, too, are worried. European insurance companies have reportedly begun warning restaurants to assess their social responsibility in the food and drink they serve.

Banzhaf said he believes that within three years most fast-food restaurants will be compelled, either by public opinion, legislation or fear of legal action, to post at the point of sale a prominent list of the calories and fat in each burger, order of fries and milkshake. Legislation to require such postings is pending in the District of Columbia and five other states.

Having mentioned all this, Banzhaf turned his attention to the 5 Spot, The Bulge and fun being poked at his crusade against fat. "We have never suggested that one restaurant is going to be liable for serving one dessert," he said. "Nobody eats at a restaurant like the 5 Spot every day or even every week. What we are worried about is chains like McDonald's, where kids eat every day."


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