Unlike with Big Tobacco, which has been the target of several successful class action lawsuits, including one for $800 billion in 2008, the track record for lawyers and plaintiffs filing lawsuits against Big Food hasn’t been so good. Attempts to sue fast-food chains like McDonald’s for “causing” obesity in its customers haven’t worked, although people do keep trying.
And then there’s the sine qua non of farcical, frivolous food company lawsuits — the dude in California who sued PepsiCo over Cap’n Crunch’s Crunch Berries because the candy-in-a-cereal-box didn’t contain real berries. Not only does that one not pass the legal “reasonable person should know” test, it doesn’t pass the “idiot person” test (though in fairness it does probably pass the Upper Class Twit Test); the presiding judge summarily dismissed the suit as “nonsense.”
Food companies, of course, would like consumers (and judges) to think that all attempts to sue them for fraud or health-related liability are similarly misconceived. However, as Stephanie Strom reported in The New York Times over the weekend, a group of former anti-tobacco super-lawyers has set out to prove Big Food wrong. And these lawyers won’t go for the Crunch Berries gambit; they’re armed with battle-tested arguments that they know work with juries and judges and have allowed them to extract billions of dollars in settlements from tobacco companies.
But it was a long road to success against Big Tobacco. Strom describes how two of the lawyers, Dan Barrett and Richard Scruggs, had to switch tactics in their tobacco suits, even though they had clients who had been obviously harmed by smoking (i.e. they were dying of lung cancer). Juries chalked up those terminal illnesses to the results of “personal choice.” But when the lawyers turned around and sued tobacco companies on behalf of states who were forced to spend hundreds of millions of dollars to deal with the health effects of smoking? Jackpot!
This bank-shot logic is at play in the lawyers’ approach to Big Food lawsuits, thanks to the rise in obesity, diabetes, and — to a lesser degree — allergies. The article reads:
The lawyers who took on Big Tobacco decided the time was ripe to go after Big Food. Consumers are increasingly conscious of their eating habits as rates of heart disease, Type 2 diabetes, obesity and other health problems rise. State and local governments are also becoming alarmed at the escalating costs of caring for people with those diseases and are putting pressure on food companies.
At the same time, processed food companies that are the subjects of most of these suits operate within a set of complicated regulations written by the federal Food and Drug Administration (FDA), regulations that — for all their complexity — remain vague in key areas. For example, as Strom observes, while companies can no longer use the word “organic” on a food label without following strict government rules, other terms like “natural” and “healthy” don’t have federal definitions. And for every ingredient that has specific food-labeling requirements, such as high-fructose corn syrup, there are dozens of others that companies are allowed to “hide in plain sight” on their labels. It’s the way that food companies operate in these regulatory grey areas that these lawyers hope to exploit in court.
A prime example of this line of attack comes in one of Barrett’s new food-related lawsuits as detailed by Strom. His firm is suing ConAgra on behalf of a set of consumers over the ingredient labeling of PAM cooking spray. According to the suit — and confirmed by documents submitted to the FDA by ConAgra — what appears on the label as “propellant” includes petroleum gas, propane, and butane.
There is probably a document somewhere in FDA’s files where the agency has determined that the levels of petroleum gas, propane, and butane present in PAM are safe for human consumption. But the data by which they came to this conclusion, and the agency’s approval to use the term “propellant” rather than having to name the actual chemicals, is fair legal game.
Barrett is also suing Greek yogurt maker Chobani for listing “evaporated cane juice” on its labels rather than the more accurate and more recognizable ingredient the phrase is standing in for: sugar. The argument is that there are many diabetics and obese individuals who might overlook the euphemism and then suffer ill health effects as a result.
What you might be noticing with these lawsuits is that Barrett and his team don’t seem to be bothering with the FDA. They’re going straight to the alleged “perpetrators.” As a contrast, groups like the Natural Resources Defense Council and the Union for Concerned Scientists have sued the FDA over the continued indiscriminate use of antibiotics in agriculture with little success. There are key differences between mislabeling foods and ingredients and misusing pharmaceuticals, of course, but perhaps if Barrett finds success, environmental and food safety groups might do well to adopt his tactics.
At the end of the day, we wouldn’t need these lawsuits — or tobacco lawsuits — if government agencies were doing their jobs. The FDA has effectively lost either the ability or the willingness to regulate the food system independently. For example: Despite being in clear violation of the law for 30 years over antibiotics in agriculture, the agency has adopted a set of voluntary (i.e. nearly meaningless) guidelines. FDA has also denied the science behind the risks of bisphenol A (or BPA) for years and refused consumer groups’ demands for a ban until the industry called for one and the agency turned on a dime to back it.
It’s only when the industry crosses a very obvious line, such as labeling Froot Loops a “Smart Choice,” that the FDA reluctantly steps in. But the agency’s long overdue plan to introduce useful front-of-package labeling is stuck in limbo and is likely to be watered down to nothing by the time industry lobbyists are done with it. On another front, the FDA is planning to introduce a set of regulations on the growing of leafy green vegetables that is of questionable benefit and will spell serious trouble for organic and small producers but is strongly supported by large growers.
See the pattern?
There are undoubtedly many who remain skeptical about super-lawyers going after favored mass-market brands. But as long as the FDA remains supine in the face of industry pressure, they may represent the best protection we’re likely to get.
And no, FDA, refusing to allow the Corn Refiners Association to rename high-fructose corn syrup as “corn sugar” does not count as bravely standing up to industry. You need to do a whole lot more — or these lawyers may just do it for you!