Lawyers Shift Focus From Big Tobacco and Big Silicone to Big Food

Discussion in 'Health and medical' started by Ilena Rose, Apr 9, 2004.

  1. Ilena Rose

    Ilena Rose Guest

    Lawyers Shift Focus From Big Tobacco to Big Food


    While lawsuits in tobacco cases were filed before smoking was seen as
    a public health crisis ...


    Lawyers who have made their careers defending the makers of breast
    implants, guns and tobacco are working from a new playbook. Make
    portions smaller, they advise food clients. Do not fudge the fat
    grams. Skip "problem ingredients." And if a case goes to trial, choose
    jurors who go to the gym; avoid those who take diet drugs or support
    universal health care.

    People may have laughed 16 months ago when obese teenagers
    unsuccessfully sued McDonald's, saying its food made them fat. But a
    well-honed army of familiar lawyers who waged war against the tobacco
    companies for decades and won megamillion-dollar settlements is
    preparing a new wave of food fights, and no one is laughing.

    Both sides seem undaunted by the "cheeseburger bills" wending their
    way through Congress. Personal responsibility, that legislation
    proposes, trumps corporate liability when it comes to being
    overweight. The House passed a bill in March that would prevent people
    from suing restaurants for making them fat, and the food industry has
    been supporting similar legislation, nicknamed the Baby McBills, in 19
    states. But even proponents of similar legislation in the Senate say
    it is not likely to pass this year.

    And beyond those grounds, lawyers on both sides see broad potential
    for litigation, including challenges to the ways children are wooed
    toward sugar and fatty foods, deceptive labeling and misleading
    advertisements. While lawsuits in tobacco cases were filed before
    smoking was seen as a public health crisis, awareness about obesity is
    already high. The federal government calls obesity an epidemic and
    released statistics last month showing that it was close to overtaking
    smoking as the nation's No. 1 cause of death.

    "The conditions are ripe," Alice Johnston, a lawyer in Pittsburgh,
    told about 100 lawyers and representatives of some of the largest food
    companies, including Coca-Cola, Frito-Lay, KFC-Yum Brands and Krispy
    Kreme, at a recent Washington conference on how to prevent and defend
    against new obesity lawsuits.

    "I'm old enough to remember when they first started talking about
    suing the cigarette companies and everyone thought it was a joke,"
    said Joseph M. Price, a lawyer in Minneapolis who has defended the
    makers of breast implants and the Dalkon Shield birth-control device.
    "Despite the fact that companies are saying this is all bogus and
    personal responsibility is what counts, I think the lesson we've
    learned, and that I would preach from my experience, is that you have
    to take the plaintiffs' bar at their word. They've said they're going
    to make this the next tobacco. If you go blithely along and ignore it,
    sooner or later it'll turn around and bite you in the backside."

    Lawyers cite 10 prominent cases against the food industry so far, five
    of which had some success. McDonald's paid $12 million to settle a
    complaint that it failed to disclose beef fat in its French fries;
    Kraft agreed to stop using trans fats in Oreos; the makers of Pirate's
    Booty, a puffy cheese snack, paid $4 million to settle a claim over
    understating fat grams.

    But both sides say they expect more. Defense and plaintiffs' lawyers
    have begun holding conferences to map strategy. The first for defense
    lawyers, in January, was so oversubscribed it had to be moved to a
    larger conference hotel. They say the next suits will not be
    traditional tort or personal-injury suits, largely because those cases
    are hard to prove. The defense can argue that the person suing should
    have eaten better foods, or exercised more, and that no one kind of
    cookie, hamburger or soda made someone obese.

    Instead, lawyers expect new cases to take on companies under consumer
    protection laws, accusing them of, say, advertising a product as
    low-fat without also mentioning that it is high in sugar and calories,
    or promising that a revamped product is "lower" in fat even though it
    is still not low-fat.

    Defense lawyers say companies are vulnerable to suits about misstating
    fat, calorie and carbohydrate content. They are advising clients to
    make sure to disclose all ingredients to avoid so-called Frankenfood
    cases, a specter raised by the judge in the McDonald's case, who said
    that most people would not expect Chicken McNuggets to have so many

    The greatest likelihood, however, is that the cases will involve
    children. "You're never going to get anybody holding for an adult who
    goes in and eats too many Quarter Pounders," said John Coale, a
    plaintiffs' lawyer in tobacco and asbestos cases preparing for suits
    against food companies. "The issue is about what goes on with the
    kids, the advertising, what's in schools. That's an issue that has
    some oomph to it."

    Potential targets include contracts involving "pouring rights," where
    soft drink companies require schools to serve only their products, and
    advertising directed at children.

    "If I could choose what kind of case to begin with, it would have been
    that, under state consumer protection acts against somebody who was
    continuing to market heavily to kids," said Richard M. Daynard, who
    directed the Tobacco Products Liability Project at Northeastern
    University School of Law and is now director of the Public Health
    Advocacy Institute there. Mr. Daynard says the institute will file
    suits against the food industry within the year.

    Mr. Daynard and others, saying they believed that the McDonald's case
    was not the ideal opening volley, tried to persuade the lawyer who
    filed the case not to. Still, they say, the reaction among companies
    and defense lawyers to the suit encouraged their interest in filing

    "The industry reacted as if the sky was falling, which leads me to
    believe that there's a lot there in terms of culpability," Mr. Coale
    said. "You don't react like that if you aren't worried."

    The worry, defense lawyers say, was that the judge in the McDonald's
    case was so willing to entertain the claims. In throwing the suit out
    the first time, he suggested ways the plaintiffs could successfully
    refile their complaint. His ruling dismissing it the second time was
    unusually lengthy and again suggested ways obesity cases might be

    "Nobody should think this is over," said Anne E. Cohen, a lawyer with
    Debevoise & Plimpton in New York. "He set a pretty low standard for
    what they had to do to get past a motion to dismiss."

    The tobacco cases got traction only when lawyers began bringing cases
    on grounds of deceptive marketing rather than personal injury.

    Peter A. Cross, a defense lawyer in New York, said that 56 percent of
    Americans now tell pollsters that they would not side with the
    plaintiff in obesity cases.

    "That was the same number with tobacco before the disclosure of
    documents saying they knew more about the dangers of smoking than they
    were admitting, that they had manipulated their recipe to make it more
    enjoyable and more addictive," Mr. Cross said. "While you can debate
    whether the claims are valid, the publication of those documents
    changed the terms of the debate. The food industry has the same
    issues. It's something every company has to be concerned about.
    Communications they thought were internal can be used in ways no one

    Lawyers worry in particular about what is in marketing plans, where
    marketers are prone to speaking about goals like "owning" the
    preschool or teenage market, or strategizing about how to display
    sugary food so children can easily persuade their parents to buy it.

    "There's always something in there that somebody, if they thought
    about it, would have a different way of saying," said Mr. Price, the
    defense lawyer in Minneapolis.

    John F. Banzhaf III, a professor at George Washington University Law
    School and the lawyer most identified with the anti-obesity crusades,
    says plaintiffs do not have to do much to win. Damage to reputation,
    or the risk of it, may be enough to prompt healthy changes from the
    food industry, Mr. Banzhaf said.

    Already, McDonald's has announced it will stop "supersizing," and
    companies and restaurants are producing healthier foods, although they
    say their efforts are to meet consumer demand and not because they are
    concerned about suits.

    Whatever they say publicly, however, their lawyers are telling them
    they should be concerned.

    "I think it's a mistake, and I've told clients this, to underestimate
    the creativity and the imagination and very frankly the aggressiveness
    of the plaintiffs' bar," said Joseph McMenamin, a defense lawyer and
    doctor in Richmond, Va. "They have a hell of a track record, frankly.
    They kept slogging away on tobacco and eventually they prevailed, and
    the sums of money companies had to pay exceed the gross national
    product of some third-world countries.

    "Is that going to happen in food? I don't think so. But I would not
    have thought so in tobacco either. If you had told me 10 years ago I
    would be busily studying digestive enzymes and hormonal influences on
    human body weight, I would have dismissed it as silly."


  2. Damaeus

    Damaeus Guest

    In, Ilena Rose <[email protected]> posted on
    Fri, 09 Apr 2004 19:41:35 -0500:

    > And beyond those grounds, lawyers on both sides see broad potential
    > for litigation, including challenges to the ways children are wooed
    > toward sugar and fatty foods, deceptive labeling and misleading
    > advertisements.

    Yeah, like having studly models with perfect bodies and glowing eyes
    wolfing down a Big Mac and a large soda with a hot fudge sundae on the