128 of 396 DOCUMENTS
Copyright (c) 2012 The Food and Drug Law Institute
Food and Drug Law Journal
2012
Food and Drug Law Journal
67 Food Drug L.J. 65
LENGTH: 12562 words
ARTICLE: The Assault On Bad Food: Tobacco-Style Litigation As An Element of the Comprehensive Scheme to Fight
Obesity
NAME: JADA J. FEHN *
BIO:
* Candidate for Juris Doctor, Hamline University School of Law, May 2012. I would like to thank my husband, Daniel for his love and
support and Micah Ludeke for pushing me. I would also like to recognize, my colleague, Elizabeth Stoneburg for being the best girl you
could have by your side for this process.
LEXISNEXIS SUMMARY:
… When we eat sugar, fat and salt layered in processed foods natural opioid molecules are activated causing sensations
of pleasure that are reinforced in the reward center of the brain. ” T he . . . industry has spent a great deal of time
learning the most effective ways to incorporate the core ingredients of sugar, fat, and salt into its products.” … The
parties to be regulated prefer the clear legislative directives that allow them to avoid penalty prospectively, but the
health care costs from obesity have already been incurred. … Although the Surgeon General’s Report in 1964, estimated
that average smokers had a nine- to ten-fold risk of developing lung cancer compared to non-smokers and pointed to
smoking as a major cause of emphysema and bronchitis, the first wave still left the industry unscathed. … To enable
tobacco-style claims against the food industry to recoup tax-payer health care dollars, state attorneys general would
need documents that detail the industry knowledge about the harmful medical link between their products and illness
and industry efforts to manipulate the addictive nature of the products. … In the tobacco era, studies with titles like
“Nicotine in Smoke and Human Physiological Response”, demonstrated that the tobacco companies had studied the
drug-like impacts of nicotine in the brain. … Agencies working hard to educate consumers, regulators minimizing the
advertising aimed at small children, and legislators voting based on public health and not lobbying efforts, can work in
concert with litigation to meet the challenge. … The food product liability law suits, even if unsuccessful, are chipping
away at the barricades around the food industry leading to important information and, eventually, these little victories
may even pressure insiders to act in good conscience and divulge what they know.
HIGHLIGHT: Obesity in the U.S. has reached epidemic proportions. A dilemma of this sort must be attacked with a
comprehensive, multi-faceted scheme. Litigation against the companies providing dangerous food has been called
trivial, but allowing market forces to regulate has proven ineffective. The history of tobacco litigation has revealed that
industry is willing to ignore dangers, act solely in the interest of profit, and completely disregard public health. The
notion that all consumers have enough information to make an autonomous choice and focus only on health when
purchasing food borders is unrealistic. Legislatures, that will ignore the huge lobbying dollars spent by the food
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industry, and enact laws with only the public health of the citizenry in mind, fall in the same category of naivet[#xE9].
Corporations are obligated to shareholders, who are concerned universally with profits. To get the attention of food
industry, it is necessary to hit them where they notice – in the wallet – by way of legal damage awards. The battle against
bad food needs to be fought on every possible front and the courtroom should be one theater of combat. As evidence of
fraudulent and deceptive industry practice is brought to light, state attorneys general have a responsibility to take the
same course of action as tobacco, by filing fraud suits to recoup state funds spent on the negative health effects of the
detrimental food.
TEXT:
[*65] I. NO MORE NEEDLES
When Vanessa Castillo was just 14 years old, she was diagnosed with Type 2 diabetes. n1 Like low-income
neighborhoods all over the country, the uptown neighborhood in New York where Castillo lives is disproportionately
affected by the disease. n2 One of the major challenges facing those like Castillo is access to healthy food. n3 Food
deserts, urban core areas with limited food access, are characterized by higher levels of racial segregation and greater
income inequality. n4 The main sources of food in these neighborhoods are convenience stores and fast food outlets,
providing almost no options that are nutritious and affordable. n5 “You just take whatever is cheaper,” Castillo said of
her family’s shopping habits. n6 At 22, Castillo still struggles with her disease; she was recently prescribed insulin and
faces the frightening prospect of regular injections. n7
II. INTRODUCTION — LITIGATION IN COMBAT
The prevalence of Type 2 diabetes and other obesity-related diseases in this country is alarming. No one can deny
that weight gain happens over time when [*66] you take in more calories than you use, n8 and eating a diet full of
highly processed, high-calorie and high-fat foods is a major cause of the crisis. n9 In contrast, access to healthy food
plays a role in promoting healthy local economies, healthy neighborhoods, and healthy people. n10 To prevent another
child from facing insulin injections, we must halt the onslaught of mass-produced junk food into the American diet.
Obesity in the U.S. has reached epidemic proportions. n11 A dilemma of this sort must be attacked with a
comprehensive, multi-faceted scheme. n12 Litigation against the companies providing dangerous food has been called
trivial, but allowing market forces to regulate has proven ineffective. n13 The history of tobacco litigation has revealed
that industry is willing to ignore dangers, act solely in the interest of profit, and completely disregard public health. n14
The notion that all consumers have enough information to make an autonomous choice and focus only on health when
purchasing food borders is unrealistic. n15 Legislatures, that will ignore the huge lobbying dollars spent by the food
industry, n16 and enact laws with only the public health of the citizenry in mind, fall in the same category of
naivet[#xE9]. n17 Corporations are obligated to shareholders, who are concerned universally with profits. n18 To get
the attention of food industry, it is necessary to hit them where they notice – in the [*67] wallet – by way of legal
damage awards. n19 The battle against bad food needs to be fought on every possible front and the courtroom should be
one theater of combat. n20
Many commentators to date have pointed to fast food as the next target for personal injury litigation. n21 This
article suggests two flaws with that approach. First, the net to catch defendants should be cast much wider. n22 Fast
food is a big culprit, but most meals are still eaten at home, n23 but “instead of buying potatoes in the produce section,
we buy potato au gratin in a package.” n24 Suits should be filed against the manufactures of soda, snacks and sugary
cereal, along with fast food. Additionally, while fast food companies can defend claims with an assumption of risk
defense, snack food defendants will face a challenge proving that it is within the “reasonable contemplation of the
consuming public” that processed, packaged food is unhealthy.
Second, personal injury suits serve a purpose, but taxpayer suits will be the real success in making the food
industry pay for the harmful products it has shoveled into the marketplace. n25 This article is a call to action. n26 As
evidence of fraudulent and deceptive industry practice is brought to light, state attorneys general have a responsibility to
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67 Food Drug L.J. 65, *
take the same course of action as tobacco, n27 by filing fraud suits to recoup state funds spent on the negative health
effects of the detrimental food. The legal theories needed to force major societal change have finally coalesced. n28 The
American consumer deserves protection from the manipulative, corporate food giants and one facet of the battle can be
fought in the judiciary.
First, this article will provide a summary of the obesity epidemic – the economic costs and importantly, some
causes. Second, the need for a comprehensive scheme will be explained by examining the shortfalls of current
regulatory mechanisms. Next, this article will explain the three waves of tobacco litigation, the strategy involved in
each, and why the third wave left an impact. Then, the current status of food litigation will be explained. Next, applying
the tobacco model to big food, this article will make it clear that discovery is crucial in several respects. Lastly, an
explicit call to action and a battle plan will be explained.
[*68] III. THE ENEMY
Obesity Epidemic and Costs
Obesity is among the most pressing health challenges facing society today. n29 Two-thirds of adults are overweight
or obese. n30 The ramifications of all this extra weight are extensive. “Obese adults are at increased risk for many
serious health conditions, including high blood pressure, high cholesterol, type 2 diabetes and its complications,
coronary heart disease, stroke, gallbladder disease, osteoarthritis, sleep apnea, and respiratory problems, as well as
endometrial, breast, prostate and colon cancers.” n31 The epidemic can have a huge toll on health; the number of
Americans with diabetes has tripled since 1980. n32 Lowered quality of life is a big concern but ultimately,
obesity-related disease leads to greater fatality. Obesity plays a part in an estimated 112,000 preventable deaths
annually. n33 Astoundingly, the costs do not stop at physical health.
There are staggering economic costs both on the system and on individuals. n34 In 2008 dollars, the medical costs
of obesity totaled about $ 147 billion. n35 A 2003 study of data from the late 1990’s revealed that obesity-related costs
were at least $ 10.7 billion of the total expenses of Medicaid. n36 An increase of medical spending of $ 271 per
overweight adult and an $ 864 increase for obesity can be attributed to extra weight. n37 On a state level,
“obesity-attributable Medicaid expenditures range from $ 23 million (Wyoming) to $ 3.5 billion (New York).” n38
Taxpayers bear the burden of the cost.
Causes
“As a society, we have moved well beyond the era when our dietary focus was on ensuring caloric sufficiency to
meet basic metabolic needs.” n39 The pendulum of diet has swung too far to the other extreme — obesity. n40 “People
tend to think of overweight and obesity as strictly a personal matter, but there is much that communities [*69] can and
should do to address these problems.” n41 To prevent this epidemic from affecting the next generation, public health
professionals have examined the changes that have occurred in society over the last generation leading to the changes in
weight. n42 They point to a reduction in physical education classes and after-school athletic programs, the proliferation
of sodas and snack foods in public schools, the increase in fast-food outlets across the U.S., the trend toward
super-sizing food portions in restaurants, and the growth in highly processed high-calorie and high-fat grocery products.
n43 “Parents, communities, the government, public health sector, health care systems, and private enterprise all face
significant challenges to create an environment for our children and youth that turns the course and enhances their
prospects for healthy lives.” n44
The former Commissioner of the FDA calls the struggle not to overeat “one of the most consequential battles we
face to protect our health.” n45 When we eat sugar, fat and salt layered in processed foods natural opioid molecules are
activated causing sensations of pleasure that are reinforced in the reward center of the brain. n46 “[T]he . . . industry has
spent a great deal of time learning the most effective ways to incorporate the core ingredients of sugar, fat, and salt into
its products.” n47 Chemical flavor is another additive relied on heavily by the food industry. n48 “Refining foods
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67 Food Drug L.J. 65, *67
through processing ensures that you get a lot of calories without chewing. n49 Because there is less fiber, consumers do
not experience a full feeling and because there is less of the expensive ingredients like meat, amongst all the breading,
sauce, and injected water, the costs are low to the industry. n50 “Food product developers seem perfectly willing to
exploit…lack of consumer awareness.” n51
“Food marketing to children has also been singled out as playing a key role in this national crisis.” n52 Children are
effective targets because they are susceptible to the messages of advertising and eating habits developed at a young age
while impressionable are likely retained through life. n53 The overwhelming majority of food and beverage advertising
targeted to the young is for products of poor nutritional quality. n54 For example, cereals marketed directly to children
have 85% more sugar, 65% less fiber, and 60% more sodium than cereals marketed to adults. n55 “Cookies [*70] and
cakes, pizza, and soda/energy/sports drinks are the top sources of calories in the diets of children 2 through 18.” n56
When proposing nutritional principles for food products that are heavily marketed to children, the Interagency Working
Group on Food Marketed to Children noted that a shift in the marketing can have a significant impact on public health.
n57
IV. OTHER METHODS OF REGULATION ARE NOT DOING ENOUGH
The scheme used to combat obesity in this country must be comprehensive. Agency education and prevention
programs, taxes and regulations on advertising are necessary, n58 but
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