Is Big Food really the next Big Tobacco?
Recently, the suggestion that Big Food could be the next Big Tobacco has been the subject of several articles and discussions, including an article published in Politico 肠补濒濒别诲听. At its core, the notion of treating 鈥楤ig Food鈥� like 鈥楤ig Tobacco鈥� means bringing litigation against large food companies in an attempt to hold them financially liable for obesity and other food-related health issues, much in the way that lawsuits in the 1990s and the 1998聽Tobacco Master Settlement Agreement聽forced tobacco companies to contribute financially to tobacco-related illnesses and health costs, as well as change labeling and marketing strategies.
According to a 2012 report on obesity in the United States,听F as in Fat: How Obesity Threatens America's Future 2012, compiled by the Trust for America's Health (TFAH) and the Robert Wood Johnson Foundation (RWJF), the medical costs due to adult obesity have been estimated at between USD聽147 billion to nearly USD聽210 billion per year in the United States, the majority of which is related to treating obesity-related diseases, such as diabetes. These costs made up for almost 21 percent of all health care spending in the U.S. in 2012. The report outlines other areas of obesity-related costs, including occupational health and safety costs, decreased worker productivity and and higher workers鈥� compensation claims.
With studies showing how聽obesity-related costsoverall health care costs, the calls for holding food manufacturers financially liable have increased.
Exactly who is considered Big Food? There isn鈥檛 a straightforward definition.
According to聽Food Processing, a food and beverage industry publication, the top ten food manufacturing companies in 2013 include PepsiCo, Tyson Foods Inc., Nestle, Kraft and General Mills, all of which have many subsidiaries. This doesn鈥檛 include other major companies in the top 100, such as Coca-Cola Co. and Cargill, nor the thousands of other smaller manufacturers and producers.
In the case of Big Tobacco, the manufacturing group of defendants was relatively small, consisting of the聽four largest tobacco manufacturers.聽They聽were jointly accused of collaborating to conceal, suppress or discredit scientific proof of health dangers of their products, including the addictive nature of cigarette ingredients and the links to cancer and other smoking-related illnesses. Advertising of certain cigarette types as 'healthier'聽(light versions of cigarettes, etc.) were聽shown to be misleading and deceptive. Extensive documentation gathered by plaintiffs conclusively聽tobacco industry claims聽to the contrary.
The case against food manufacturers bears some similarity with regards to the anti-tobacco litigation in terms of the the reliance by both sides on conflicting studies (many funded by the industry itself) showing or denying the dangers of typical industry food ingredients such as corn syrup, salt, trans-fats and artificial sweeteners. Misleading advertising,听advertising to children, and misleading or deceptive product labeling of foods are also part of the claims being made against food manufacturers when it comes to discussing possible litigation.
As the Politico article notes, the food industry is already facing upwards of 150 lawsuits related to labeling and marketing,听manyon the use of the words 鈥榟ealthy鈥� and 鈥榥atural鈥� on food labels. One example of these kinds of cases are the lawsuits against General Mills'聽Nature Valley granola bars, which are labeled as 鈥�100% Natural鈥�, yet which plaintiffs' lawyers have claimed contain genetically-modified and other allegedly 鈥榰n-natural鈥� ingredients. While a federal judge in Minnesota聽the case based on a failure of the plaintiffs to show they were deceived by the company and a lack of reliable scientific evidence聽as to the 鈥榰n-naturalness鈥� of the ingredients,听a similar class-action case in California i.
However, these remain specific cases. For larger lawsuits against Big Food, the kind of major collective class-action cases which took place against the main tobacco manufacturers, there would likely have to be evidence of the addictiveness of individual ingredients, as well as proof that knowledge of any聽addictiveness had been intentionally and collectively concealed by a range of food manufacturers. A so-called 鈥榮moking gun鈥� of the kind found in tobacco documentation and scientific studies has yet to be defined, and the manufacturing group itself is much larger and more diverse.
Some food manufacturers, including General Mills in the Nature Valley case, have claimed that the courts are not the correct place to deal with food issues in the United States, and that the Food and Drug Administration or legislative bodies are more appropriate arenas. However,听most judges handling these cases have thus far.
Voluntary industry actions in attempts comply with consumer concerns over obesity issues, preempt restrictive legislation and avoid lawsuits are increasingly common, such as the聽2006 agreement by the American Beverage Association聽to ban the sale of all high-calorie drinks and all beverages in containers larger than eight, 10, and 12 ounces in elementary, middle and high schools, respectively.
This approach was also common in the tobacco industry prior to the Tobacco Master Settlement Agreement, with industry representatives commonly promoting industry鈥榮elf-regulation鈥� and 鈥榲oluntary codes鈥� in favor of legislative action.
The current discussion in the media, starting with the Politico article mentioned above as well as a second Politico article published two days later that argued聽tobacco lawsuits won鈥檛 work against the food industry, was prompted by proposals sent by plaintiff lawyers,听some of whom also worked in the tobacco industry litigation, to 16 state attorneys general (AG) suggesting that suits be brought at a state level against Big Food, in order to recoup state health care spending on treating obesity and diabetes.
This, in turn, was based on a policy paper,听The New Lawsuit Ecosystem: Trends, Targets and Players, published by the Institute for Legal Reform, which discusses the 鈥榞rowing state attorneys general alliance with plaintiffs鈥� lawyers鈥�. The paper specifically cites聽the link between tobacco litigation and the current targeting of the food industry, and states that 鈥渁lthough observers initially viewed such arrangements (i.e. the relationship between private lawyers and AGs -聽edit.) as unique to tobacco, plaintiffs鈥� lawyers and some AGs have since expanded this model. Private lawyers have enticed states to bring novel or speculative lawsuits that seek to expand liability rather than enforce existing law.鈥�
Many of the same kinds of arguments against the viability of litigation against Big Food echo those of the Big Tobacco cases: A lack of proof of direct causality between manufacturers鈥� products and disease; the argument that the consumption of the manufacturers鈥� products is voluntary and consumers should be responsible for their own actions; a conformance on the part of manufacturers to legal regulations and labeling that should preclude any liability; and finally, that those seeking to sue Big Food for damages are doing it with an eye toward the kind of financial payouts seen under the tobacco settlement.
Few people, including many of the state attorneys general who were involved in the initial filings against tobacco companies, believed tobacco lawsuits would be successful. Michael Moore, Mississippi鈥檚 attorney general from 1988 to 2004 and one of the initiators of the lawsuits that led to the tobacco class action settlement that would become the largest in U.S. history, is聽quoted by Politico as saying,听鈥淣obody thought we had a chance to win.鈥�
It took years, but they were proven聽wrong.
