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Food Industry May Face Lawsuits Over Obesity
Lawyers mull successful strategies established in tobacco litigation
Jeff Leach (zinjboss)     Print Article 
Published 2006-01-27 14:09 (KST)   
With the average American child seeing nearly 10,000 advertisements a year for sugary cereals, fast foods, snacks, candy, and soft drinks, lawyers fresh from the battlefield of tobacco litigation are laying the philosophical groundwork for a run at the obesity epidemic in America.

In a report in this month's issue of American Journal of Preventive Medicine, authors Jess Alderman and Richard Daynard say 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.

©2006 Adriana Cal
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," they say.

The authors argue that lawsuits that seek reimbursement from food companies for Medicaid expenses related to obesity, a strategy used against big tobacco, is also unlikely to be successful, as it "would be difficult to prove specific causation."

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.

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 suit against tobacco company Philip Morris for deceptive business practices for 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.

"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."

No matter how it plays out, the food industry is unlikely to make significant changes in the near term or do so without a major fight. Aft all, some of the biggest food companies in the world, such as Kraft, are owned by tobacco companies, which have honed their litigation skills in over 50 years of consumer and state court battles.

Stay tuned.
©2006 OhmyNews
Other articles by reporter Jeff Leach

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