Is Big Food the new tobacco?

Panelists ranging from inside counsel for a major F&B firm to a former VP at a major tobacco marketer, to attorneys from an industry trade association and consumer advocacy group, and the head of a product liability consultant convened during Perrin Conferences “Challenges Facing the Food and Beverage Industries in Complex Consumer Litigations” to discuss F&B marketing regulation and whether the so-called “food wars” are harbingers of a fate similar to the tobacco industry.

Short of saying there’s an outright link between Big Food and the tobacco industry, Steven Parrish, Steve Parrish Consulting Group, and former senior vice president of corporate affairs for Altria (parent company of Phillip Morris), instead outlined tobacco’s litigation history as its legal problems transitioned into societal problems.

“The tobacco industry has a very successful history of defending traditional product liability cases,” ​Parrish said. "From the first lawsuit filed against industry member in 1953 to mid-1990s, the industry never lost or settled a smoking and health product liability suit. In the mid ‘90s the eggs hit the fan because the industry for all those decades had smugly thought it had a legal problem. But over time, it came to realize it had a society problem. Litigation was a symptom of the disease, not the disease itself.”​

Tobacco settlements had nothing to do with money; it was about reining in the industry ​

Multiple forces outside the courtroom came to bear on tobacco litigation—be they public health, regulators or the media, as their agendas lined up. All of a sudden, NGOs with a legitimate interest in controlling tobacco public health concern saw an opportunity to advance their cause through litigation.

“When it came time to resolve the litigation, we couldn’t just sit in a room and say, ‘how much money do you want?’” ​Parrish said. “A lot had nothing to do with money. It had to do with reining the industry in. We had to craft settlements to deal with that. We spent so much time early on talking to ourselves about greedy trial lawyers, out-of-touch regulators, media-addicted elected officials and public health people who didn’t know how to run a business. At the end of the day, it didn’t matter. We would have been much better off recognizing these people had legitimate agendas.”​

Whether or not a food company believes that its product may on some level contribute to chronic disease is irrelevant. “Maybe there are some parallels, but I urge people not to succumb to the temptation to say, ‘cigarettes kill you, cigarettes are addictive. But mac and cheese, coffee, and Oscar Meyers wieners don’t. That may be true, but there are still risks for the industry.”​

Is Big Food trying to 'hook' us?​

Michael Reese, plaintiff's attorney for Reese Richman LLP, said that the increasingly accusatory tone of media coverage in recent years has reshaped the dialogue around nutrition and Big Food. ​​

"There's this idea, which has picked up steam in the media, that large food companies are manipulating ingredients to hook people on food. It hasn’t been manifest in litigation yet, but we're seeing it with legislative initiatives, like Mayor Bloomberg in New York City saying sugar hooks people and causes diabetes. We've seen some with GMOs, though most of that legislation is about consumers' right to know. But there's this overarching concept that Big Food is somehow manipulating our food supply and as a result, giving us non-food."​​

To that, Hugh Young, president of the Product Liability Advisory Council, responded that use of such alarmist terminology as Bloomberg did with sugar "addiction" has only exacerbated litigation.

“As soon as you introduce the term ‘addiction’, you’re moving away from the responsibility of the person to make decisions for themselves to you’re addicted to a drug, you need professional help,”​ Young said. “By linking addiction and obesity in the minds of the public you’re already halfway to the courtroom. I’ve been seeing the term in articles about the behavior, in this case, of food companies, and that needs to be taken with a grain of salt.”​ He cleared his throat: “Excuse me, salt raises blood pressure, doesn’t it?”​

As a result, the parallel between the tobacco and food and beverage industries can’t be found in a courtroom or complaint, Young added. “The similarities have to do more with strategies and tactics in the context of litigation. When you look at the use of ‘addiction’, it should be flashing, Strategy! Tactics! in front of your eyes.”​

The court provides a system for which there is no alternative​

Still, the regulatory and legislative pieces aren’t always enough to regulate an industry; there’s a time and place for common law, which is decided in a courtroom, not behind closed doors in a settlement.

“The court provides a system for which there is no alternative,” ​Young said. “When you’re talking about mediation and settlement—that’s all private. It doesn’t count at all in terms of making law. There are some cases that need to go to trial, and you simply need to roll the dice.”​

Stephen Gardner, director of litigation at the Center for Science in the Public Interest (CSPI), noted that oddly, the Supreme Court decision that was meant to make it harder for consumers to file class-action suits is actually helping drive them.

“One thing ironically driving all this is thanks to​ [AT&T Mobility vs.] Concepcion and subsequent Supreme Court decisions basically saying when God wrote the Federal Arbitration Act, he knew what he was doing. There’s no such thing as inarbitrable. A lot of people are coming to this because so far nobody has put in an arbitration clause.”​

Does self-regulation of marketing work?​

Karin Moore, VP and general counsel of the Grocery Manufacturers Association, said when it comes to best practices for regulating marketing, “it depends which side you are on,” ​she said.

“There are a lot of examples of self-regulation working well with the National Advertising Division—the self-regulation of liquor advertisements comes to mind. But it also depends on the issue. For natural claims, I don’t know how you’d self-regulate because everybody has a different definition of what’s natural and FDA hasn’t spoken on it.”​

But Gardner insisted that self-regulation of F&B marketing is simply not an effective strategy. ​

“I have learned that I can’t depend on kindness of strangers, so we can’t leave regulation to the companies themselves. What would be the best way is if we had a very active FDA and an even more active FTC to aggressively police marketing. Litigation is an unfortunate second.”​