Is Big Food really the next Big Tobacco?

At its core, the notion of treating ‘Big Food’ like ‘Big Tobacco’ means bringing litigation against large food companies in an attempt to hold them financially liable for obesity and other food-related health issues. Can it work?

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 called The Plot To Make Big Food Pay. At its core, the notion of treating ‘Big Food’ like ‘Big Tobacco’ 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 Tobacco Master Settlement Agreement 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, 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 147 billion to nearly USD 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’ compensation claims.

With studies showing how obesity-related costs affect overall health care costs, the calls for holding food manufacturers financially liable have increased.

Exactly who is considered Big Food? There isn’t a straightforward definition.

According to 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’t 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 four largest tobacco manufacturers. They 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' (light versions of cigarettes, etc.) were shown to be misleading and deceptive. Extensive documentation gathered by plaintiffs conclusively refuted tobacco industry claims 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, 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, many focused on the use of the words ‘healthy’ and ‘natural’ on food labels. One example of these kinds of cases are the lawsuits against General Mills' Nature Valley granola bars, which are labeled as ‘100% Natural’, yet which plaintiffs' lawyers have claimed contain genetically-modified and other allegedly ‘un-natural’ ingredients. While a federal judge in Minnesota dismissed the case based on a failure of the plaintiffs to show they were deceived by the company and a lack of reliable scientific evidence as to the ‘un-naturalness’ of the ingredients, a similar class-action case in California is still under consideration.

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 addictiveness had been intentionally and collectively concealed by a range of food manufacturers. A so-called ‘smoking gun’ 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, most judges handling these cases have thus far re-affirmed the courts’ capability of judging these issues.

Voluntary industry actions in attempts comply with consumer concerns over obesity issues, preempt restrictive legislation and avoid lawsuits are increasingly common, such as the 2006 agreement by the American Beverage Association 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‘self-regulation’ and ‘voluntary codes’ 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 tobacco lawsuits won’t work against the food industry, was prompted by proposals sent by plaintiff lawyers, 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, The New Lawsuit Ecosystem: Trends, Targets and Players, published by the Institute for Legal Reform, which discusses the ‘growing state attorneys general alliance with plaintiffs’ lawyers’. The paper specifically cites the link between tobacco litigation and the current targeting of the food industry, and states that “although observers initially viewed such arrangements (i.e. the relationship between private lawyers and AGs - edit.) as unique to tobacco, plaintiffs’ 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.”

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’ products and disease; the argument that the consumption of the manufacturers’ 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’s 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 quoted by Politico as saying, “Nobody thought we had a chance to win.”

It took years, but they were proven wrong.