To sell their products in an economy of abundant choices, food companies employ aggressive marketing strategies. Manufacturers introduce thousands of new food and beverage products into the market every year. Food and food service companies spend more than $11 billion annually on direct media advertising.1 As a result, the calories provided by the US food supply have increased from 3300 per capita in 1970 to 3800 in the late 1990s, which may be a contributing factor in the rise of obesity among Americans over the same time period.2 Litigation has been successfully employed to reduce industry practices that may be harmful to the public health. For example, personal injury suits by smokers and nonsmokers, suits by state attorneys general to recover Medicaid expenditures, and other class actions have forced tobacco companies to raise prices dramatically and curtailed tobacco industry marketing practices, particularly those aimed at minors.3
The strategies and techniques of tobacco litigation, however, cannot be imported wholesale into food litigation. Tobacco is an addictive and deadly product while food is necessary for life, and small amounts of any food can be part of an appropriate diet. The causes of obesity, unlike the complications of smoking, are multifaceted. While the development of emphysema and lung cancer can be clearly linked to a history of cigarette use, obesity typically stems from a combination of genetic factors, long-term over-consumption of many different foods, and inadequate physical activity.
There are many obstacles to personal injury suits asserting that a lifetime of eating certain foods caused the plaintiff's obesity and consequent chronic illnesses. The plaintiff would need to establish a precise misbehavior committed by the defendant that led him or her to overindulge in their product. Even if the company had behaved properly, the plaintiff may have simply overeaten. Unless these concerns are addressed convincingly, plaintiffs will lose their case, just as suits against cigarette makers used to fail consistently before the overwhelming evidence of the industry's misconduct emerged from their own documents.4
We believe that an action to recover funds for a state Medicaid program has a better chance at success, as it might not be necessary to show that a particular food industry action caused obesity and consequent disease. A state could argue that fast food companies contributed to the state's costs of treating obesity-related diseases in proportion to their sales in the state. However, that argument too would be difficult to prove, and the state would still have to show that all the defendants were legally liable.
Lawsuits targeting particular marketing practices that may contribute to obesity may also be successful, because they would not depend on showing how food industry misconduct led to food over consumption and injury to the plaintiffs. Most states have consumer protection laws modeled on the Federal Trade Commission Act, which allow consumers, or classes of consumers, to sue for "unfair or deceptive" commercial practices.5 Claims about particular nutrients in food such as "high in calcium," "high fiber," and "low in fat," may be generally understood as meaning that the consumer should eat the food as a larger part of his or her normal diet. If a food with these claims is also highly caloric, the omission of this information may make the overall impression created by the ad deceptive.6 Litigation might also target "pouring rights" contracts, in which school districts agree with soda or snack food manufacturers to place their vending machines in hallways and school cafeterias in return for a share of the profits. These contracts are a frequently used direct market technique designed to establish brand loyalty in young children.7 Companies seeking such contracts may reasonably be thought unfair because they are marketing non-nutritious products to a captive audience.8
Litigation is a new front in the battle to control obesity. While experience with tobacco litigation can help make some predictions, key differences between smoking and obesity will surely affect how the battle will play out. In the absence of proof that particular food industry practices cause obesity, suits seeking compensation for obesity-related injury are unlikely to succeed, while suits seeking to protect consumers from unfair or deceptive food marketing techniques are more likely to succeed. Food industry documents analyzed during such lawsuits will likely reveal whether these marketing techniques were intended to deceive or manipulate consumers. This information will play a major role in determining the outcome of food litigation.
Daynard RA, Hash LE, Robbins A. Food Litigation: Lessons From the Tobacco Wars. JAMA. 2002;288(17):2179. doi:10.1001/jama.288.17.2179-JMS1106-5-1