Big Food, Big Snack. Law: class actions
Who are our superheroes?
Don Barrett in his Mississippi office. First Big Tobacco, now Big Snack. Are lawyers about to be the new wave of public health nutrition super-hero?
Our news team reports. The marketing departments of the food manufacturing industry will always push as hard as the law allows, to promote their products and to gain market share. That's their job. But have Big Food and Big Snack, the transnational manufacturers of energy-dense fatty, sugary or salty products, now gone too far and crossed the line into territory where they can successfully be sued?
Don Barrett, a US-based attorney (above) thinks that yes, they have. Last month, interviewed for the BBC television programme Newsnight (1), he said the critical issue is labelling. In the US, if product labelling can be proved to be false, 'proving the damages is simple: it is the sales of the unlawful product within the time period of the statute of limitations – four years.' And as cases move into the discovery stage, at which defendants are obliged to reveal confidential documents, what might emerge is 'smoking guns' – evidence that company executives knew that the claims they were making could be formally challenged. Even a threat of class action on behalf of consumers may be enough to change industry practices. 'There's one thing that corporate America pays attention to, and that's getting hit in the pocketbook. It's all about profit. And it's only when you affect their profit that you will affect their behaviour, and we intend to do that'.
He knows whereof he speaks, as one of the attorneys who discovered that Big Tobacco executives concealed their knowledge that cigarettes are addictive, as a result of which settlements eventually totalled $US 200 billion. He is not alone: over a dozen US lawyers are now moving against Big Food. Don Barrett claims that around a quarter of food products are misbranded in the US. So the scale of damages in these cases could easily match the tobacco settlements. 'It could, and will be, billions of dollars in some cases' he claims 'One of the potato chip companies that we're suing sells $US 13 billion worth of product a year'.
Here come the superheroes?
'Time for heroes'. This was the heading of a Lancet comment last month (2). The call was for what the authors call 'public health superheroes' who achieve their vision, handle conflict, and influence large-scale change. The piece proposes that potential 'superheroes' can come from within and also outside public health – such as lawyers, for example. Members of the UK Faculty of Public Health, interviewed fthe study summarised in The Lancet, were concerned about the 'corporatisation' of public health 'that has stifled ability of leaders to speak out as independent advocates for the health of the population'. Co-author Darren Shickle of the University of Leeds said: 'It is critical that both current and new professionals have help in becoming more effective leaders. You only have to look at the role that Jamie Oliver has played as someone who has the ability to engage, inspire and make a difference. But we need to act now to ensure public health leaders at all levels have the skills, resilience and influence to address the public health challenges of today and the future'.
One outspoken UK-based public health professional is cardiologist Aseem Malhotra. His comments on the Newsnight programme on legal class actions against Big Food and Big Snack are summarised below in Box 1.
From knowledge to policy and action in the UK?
15 October. Here is an extract of a piece by UK-based cardiologist Assim Malhotra (3). A special report on BBC's Newsnight yesterday revealed that dozens of lawyers in the United States, including many that took on the tobacco companies, have filed cases against food industry giants…for misleading consumers and violating federal regulations by wrongly labelling products and ingredients.
Whether this is just the tip of the iceberg as far as litigation goes against the food industry remains to be seen… What lengths will the industry go to in marketing products that are healthy when in fact they could be the complete opposite?
With one in three children in the UK overweight or obese by the age of 9, and a recent analysis of 50,000 children by researchers at Oxford University published in the BMJ demonstrating markers of raised cholesterol, raised blood pressure, and even enlarged hearts in this group, we need to be more vigilant than ever about what we and our children are putting into their mouths…
Jane Landon, Director of Policy at the [UK] National Heart Forum, says that 'people have a right to know what is in their food. What we currently know about our food is led by the promotional information that companies prefer to put on pack, not objective information about the nutritional content'.
It horrifies me to see people gorging on products marketed as 'low fat' that are loaded with… sugar which is more likely to lead to increased weight… Two randomised trials published in the New England Journal of Medicine last month provide the strongest evidence so far that sugary drinks really do encourage weight gain in children and adolescents. Actions to reduce consumption are therefore justified and should be supported. It is high time that the government also enforced traffic light labelling of the amounts of sugar, salt and fat on all appropriate food products…
There is an obvious clash between public health advocates and a very powerful food lobby that will go to any length to protect their only interest; profit. The food industry has a dedicated, financially and politically powerful strategy to deflect the responsibility and blame for the obesity epidemic on to the individual. One obvious example is companies such as McDonald's and Coca Cola advocating the role of exercise in tackling obesity whilst using the Olympic Games, the most effective marketing platform in the world, to promote their brands.
There are a multitude of benefits of exercise in improving both physical and mental health. If I didn't believe it I wouldn't spend 45 minutes in the gym daily, But as far as obesity is concerned the focus should be more on calories consumed…
Last week I spoke at a fringe meeting on obesity at the Conservative Party Conference organised by the Royal College of Paediatrics and Child Health. There was a consensus of opinion that more drastic interventions were imperative to tackle the growing problem of child obesity including the curtailing of junk food advertising to children. Sarah Wollaston MP, a member of the health select committee, said she was 'horrified' by the contents of a vending machine in a local paediatric outpatient department and that displaying and selling junk food in hospitals is clearly sending out the wrong message.
A government advisor told me that 'this government doesn't like banning things.' But … who would argue that the public smoking ban and the compulsory introduction of air bags in cars, both heavily opposed for years by Big Tobacco and the auto industry respectively, was not necessary for the interest of public health? The current strategy of appeasing the food industry with the 'responsibility deal' is doomed to failure…
Very soon the Academy of Medical Royal Colleges, representing 200,000 doctors in the UK and led by its new president, Professor Terence Stephenson, will produce a report on what the medical profession believes needs to be done to tackle this public health crisis. If we know what the most effective and necessary interventions are then for the sake of our children's health we cannot afford to waste any more time.
- Watts S. Big Tobacco lawyers target food industry. BBC News Magazine, 15 October 2012. http://www.bbc.co.uk/news/magazine-19953716.
- Day M, Shickle D, Smith K. Zakariasen K, Oliver T, Maskol J. Time for heroes: public health leadership in the 21st century. Comment. The Lancet 380, 6 October 2012, 1205-1206.
- Malhotra A. How false advertising by big food is driving obesity. Huffington Post, 16 October 2012.