Consumer protection acts biggest threat in obesity litigation

By Lorraine Heller

- Last updated on GMT

Related tags: Food industry, Plaintiff

When it comes to using litigation as a strategy to combat obesity,
food manufacturers should be most wary of lawsuits based on
consumer protection acts, according to a new report that examines
the application of tobacco litigation methods to obesity lawsuits.

The report uses the history of tobacco litigation as a model to evaluate potential legislation against the food industry, which the authors claim is another industry that poses a threat to public health.

Published in this month's issue of the American Journal of Preventive Medicine, the study says that although national legislation against the food industry would be a "preferable"​ strategy to protect public health, lessons from the tobacco wars suggest that effective national legislation is currently unlikely.

One of the reasons for this is that the industry has a strong influence on the process, say authors Jess Alderman and Richard Daynard.

"Like tobacco, the food industry routinely- and often invisibly- seeks to influence both legislators and health professionals to support its agenda while ignoring its potential impact on public health,"​ they say.

And when it comes to individual personal injury lawsuits against food companies, these also currently carry a slim chance of success, as the companies are likely to fight litigation "at every step."

"Losing such a lawsuit could open the floodgates of litigation by encouraging millions of obese Americans to file similar cases, so it would be advantageous for the food industry to delay or defend every such lawsuit to the fullest extent."

Furthermore, according to the authors, the food industry has a stronger defense in such cases than tobacco firms.

"There are over 320,000 food items on the market, and many food companies produce both 'good' and 'bad' food; in contrast, there are only a few kinds of tobacco products and no such thing as a 'good' cigarette,"​ says the report.

For the same reason, lawsuits that seek reimbursement from food companies for Medicaid expenses related to obesity are also unlikely to be successful, as it "would be difficult to prove specific causation."

However, lawsuits based on consumer protection acts are likely to be much more effective, as these avoid complicated causation issues and focus instead on deceptive marketing tactics, say Alderman and Daynard.

Specifically, marketing that makes non-nutritious food appealing to children could fall under consumer protection statutes, together with false advertising, misleading claims and unfairly taking advantage of vulnerable consumers, they add.

"Consumer protection statutes make it easier to demonstrate a link between corporate behavior- for example deceptive advertising- and the public's direct losses- for example spending money on 'diet' products that actually contribute to obesity- because most do not require a showing that the defendant's misbehavior caused a specific illness."

A recent example in the tobacco industry occurred when plaintiffs were permitted to bring a class action against tobacco company Philip Morris for deceptive business practices implying that 'light' or 'low tar' cigarettes were better for consumer health.

"Class action lawsuits could make similar claims against elements of the food industry under consumer protection statutes,"​ says the report.

Indeed, last year an American consumer launched a lawsuit aimed at food companies including Kraft Foods, General Mills and Kellogg, alleging that 'low sugar' labels on cereals were deceptive as the companies replace the sugar with other carbohydrates, thus offering no significant nutritional advantage.

The authors note that "lawsuits can lead to higher prices, decrease consumption, educate the public about the dangers of products, and compel an industry to stop deceptive marketing and misleading public statements."

"From a public health standpoint, successful litigation does not always require a victory in court; the goal of litigation can be to change public perception of an industry and ultimately to induce a change in industry practices."

"It is likely that litigation will be as necessary to address the obesity problem as it was to address the dangers of tobacco,"​ say the authors. They conclude that a focus on public health lawsuits under consumer protection statutes would "encourage the industry to improve the nutritional content of its products and to change its marketing practices."

Related topics: Regulation

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