States Asked to Sue Over Obesity - As They Did With Smoking // Suits Could Slash Taxpayer Costs

WASHINGTON - Aug. 12, 2014 - PRLog -- The time may well be ripe for states to begin considering such law suits, says the man who has been called "The Law Professor Who Masterminded Litigation Against the Tobacco Industry," "a Driving Force Behind the Lawsuits That Have Cost Tobacco Companies Billions of Dollars," and "a Major Crusader Against Big Tobacco and Now Among Those Targeting the Food Industry," because about a dozen fat law suits have already been successful, and the U.S. Supreme Court has just taken away the major legal defense food companies have been relying upon.

        "Mississippi and then other states began suing the major causes of smoking-related diseases only after there had been initial successes against big tobacco in court by private plaintiffs, and a legal anti-obesity movement I helped start just a few years ago has now led to more than a dozen successes by private plaintiffs, with many cases still in the pipeline," says public interest law professor John Banzhaf.  He cites:

* SODAS IN SCHOOLS:  Facing a series of class action law suits in several different states for selling fattening sugary soft drinks in schools across the country, the nation's bottlers were forced to agree to virtually ban the sale of sugary soft drinks in schools, especially during school hours.
* BIG DADDY'S DIET ICE CREAM and PIRATE'S BOOTY DIET FOOD were both forced to pay out millions for misrepresented the calories in their products, and to correct their labels.
* NEW YORK CITY SCHOOL BOARD settled a law suit brought against it by agreeing to ban all sugary soft drinks, and most fattening foods, from its classrooms.
* KRAFT'S OREO COOKIES:  Food giant Kraft, sued for failing to disclose that its popular Oreo cookies contained dangerous trans fat, settled out of court by agreeing to remove the trans fat from its cookies, resulting in cookies which are less hazardous and also lower in calories.
* KELLOGG COMPANY:  To avoid a threatened fat law suit, the Kellogg Company adopted nutrition standards for the foods it advertises to young children.
* KFC was sued for having dangerous levels of trans fats, and for failing to disclose that, and the risk of trans fat.  As a result, KFC agreed to switch cooking oils to virtually eliminate trans fats, a move which will probably also reduce overall fat calories.
* SEATTLE SCHOOL BOARD agreed, even before a suit was actually filed, to substantially restrict the number of sugary soft drinks sold in its schools, and to introduce more healthier beverages.

        In some more recent legal proceedings:

* WHOLE FOODS:  A California federal judge upheld a class action law suit against Whole Foods charging that many of its foods labeled as containing "evaporated cane juice," rather than just plain "sugar, " were misbranded and deceptive under California law.
* NUTELLA settled out of court for $3 million, and its ad calling the food a healthy breakfast staple was ordered off the air, because the product contained as much as 21 grams of sugar and 11 grams of fat, 3.5 grams of which are saturated, in every two-tablespoon serving.
* CARGILL, INC. and ARCHER-DANIELS-MILAND:  Courts have upheld suits alleging that ads by both companies claiming that high-fructose corn syrup is "natural" "corn sugar" - and that "your body can't tell the difference" - violate the Lanham Act's false advertising provisions.
* CHOBANI: Both a court and the FDA held CHOBANI should have told consumers that its yogurts contain sugar, rather than hiding that fact by listing as an ingredient only "evaporated cane juice."

        As the American Lawyer magazine has noted, the exploding number of "unfair and deceptive" food law suits seems to have grown out of the movement started by Prof. John Banzhaf and his law students several years ago to use legal action as a weapon against the problem of obesity, just as he had earlier done in leading the use of legal action as a weapon against smoking.

        In the article's words, "Spurred in part by the obesity epidemic, suits such as this one target some of the biggest producers . . ."  The Banzhaf law suit against McDonald's was originally ridiculed as frivolous, but it forced the fast food giant to pay out over $12 million to settle, to post a public apology, and to make the disclosure - that its french fries did contain been fat - which the plaintiffs had demanded.

        Indeed, as part of this food law suit, and another food suit which cost it $8 million, the company behind the golden arches ended the practice of supersizing, changed the formula and ingredients for the one food offering which had been singled out by a federal judge, added salads and healthy desserts to its menus, and began disclosing the calories in its various offerings.

        Now the demands of many of  plaintiffs in their initial law suits helped trigger a federal statute which required disclosure of calories by all major restaurant chains, including especially fast food outlets.

        To make the state cases even stronger, a unanimous U.S. Supreme Court drove a stake into the heart of a key argument being used by defendants in the "next wave" of class action law suits based upon deceptive and misleading food labels, and provided a strong boost to dozens of such actions now pending, says the public interest law professor some credit with creating this new type of tort [civil] action.

        Coca Cola’s argument that any claims of food misrepresentation under state law are  preempted by FDA regulations related to food safety were resoundingly quashed, says Banzhaf.

        More specifically, Coke's argument that its Pomegranate Blueberry juice blend wasn't illegally misleading under the federal Lanham Act - even though it contained only an eyedropper (0.6%) of such juices  - because it met FDA labeling requirements which allegedly trump state consumer protection laws, was unanimously rejected by all of the justices, liberal as well as conservative, observes Banzhaf.

        Now that the high court has held  - as it also did in 2009 regarding drug labeling - that claims based upon faulty food labeling are not preempted by federal regulations, it opens the door even wider to what many corporate lawyers have labeled the "next wave" of class action law suits.