Should Food Carry Warning Labels?

Ten years ago, Federal Judge Robert Sweet ruled in the Pelman v. McDonald's Corp. case that the plaintiffs' complaint failed to prove that McDonald's was responsible for the two teenagers' obesity. Attorney David Wallace wrote in a recent issue of Product Liability Law and Strategy that given the statistics (1/3 of U.S. adults and 17% of U.S. children are obese), "the number of potential claimants is staggering." While the original claims in the Pelman lawsuit may be difficult to prove on causation, specifically linking the consumption of high-fat, high-salt fast foods directly to the effects of obesity, such as Type 2 diabetes and other cardiovascular risks, a different claim may be more successful.

Wallace writes that just as a group of lawyers made hundreds of millions of dollars from suing cigarette manufacturers in the late 1990's on claims that tobacco products were mislabeled, consumer class action suits against food companies could similarly be filed claiming that food companies mislabeled their products by their heavy "use of such unhealthy ingredients as sugar, high-fructose corn syrup and trans or saturated fats." Additionally, food products that promise to be "heart-healthy" or "cholesterol-reducing," could be targeted by seeking economic damages based upon future health risks (a similar argument was used successfully by many states and municipalities against tobacco companies).

This argument, according to Wallace, once again pits the American value of "individual responsibility for personal choices we make" against the risks knowingly accepted by others that results in high costs to health of society at large, and paid for by all of us, even those committed to a healthy lifestyle. Another legal argument that may catch on with plaintiffs'lawyers is the addiction theory. Basically, it goes like this: Food can be as addictive as certain drugs. Again, using the tobacco analogy, Wallace reminds us that plaintiffs in the tobacco litigation argued that the cigarette was "cynically designed to deliver addictive levels of uicotine to keep people smoking cigarettes despite the health risks involved." Similarly, in potential food litigation, the "theme will be that defendants engineered their products to deliver as much sugar and fat as cheaply as possible." Stating it more bluntly, these foods may "hijack the brain."

Wallace concludes his excellent analysis of the potential for food litigation by stating that as the cost of health care to states and cities most certainly will increase, state attorneys general could look to the court system, just as they did with tobacco, "to recover diet-related Medicaid costs associated with the treatment of heart disease, diabetes and obesity." And, what if, just as in the tobacco litigation, future food litigation uncovers "negative company documents"? At that point, all bets are off and we will be off to the races with another headlinegrabbing series of lawsuits questioning the health of anything we eat! Enjoy your Happy Meals, folks!

Feel free to pass this issue of the Goldhaber Warnings Report on to any friend or colleague.