7

Using Litigation to Change Policies and Practices

Key Presenter Messages

  • Litigation can raise public awareness of an issue and result in the disclosure of important documents.
  • A lawsuit accusing a business of consumer deception may be more successful than a lawsuit accusing a business of personal harm.
  • Legislation and regulation are much more direct and flexible ways of changing policies and practices than litigation, which can be narrow and idiosyncratic.
  • Government can be sued for delays in responding to petitions or implementing regulations.

Litigation and the threat of litigation can be powerful forces in changing policies and practices that affect obesity. Two speakers at the workshop discussed the advantages and disadvantages of litigation, while a third warned of its risks and discussed its shortcomings in enacting policy change. Speakers pointed out that litigation and the threat of litigation can have positive consequences even if a case never goes to trial. But they also indicated that litigation may not be the best means of arriving at broadly



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7 Using Litigation to Change Policies and Practices Key Presenter Messages • Litigation can raise public awareness of an issue and result in the disclosure of important documents. • A lawsuit accusing a business of consumer deception may be more successful than a lawsuit accusing a business of personal harm. • Legislation and regulation are much more direct and flexible ways of changing policies and practices than litigation, which can be narrow and idiosyncratic. • Government can be sued for delays in responding to petitions or implementing regulations. Litigation and the threat of litigation can be powerful forces in chang- ing policies and practices that affect obesity. Two speakers at the work- shop discussed the advantages and disadvantages of litigation, while a third warned of its risks and discussed its shortcomings in enacting policy change. Speakers pointed out that litigation and the threat of litigation can have positive consequences even if a case never goes to trial. But they also indicated that litigation may not be the best means of arriving at broadly 51

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52 LEGAL STRATEGIES IN CHILDHOOD OBESITY PREVENTION applicable public policies, which generally are more appropriately deter- mined by the legislative and executive branches of government. LEGAL STRATEGIES FOR OBESITY PREVENTION The use of litigation to reduce smoking demonstrates both the dis- advantages and advantages of this approach, said Mark Gottlieb, execu- tive director, Public Health Advocacy Institute, Northeastern Law School. Litigation can take a long time to succeed. In the case of tobacco, it began in the 1950s, but the first verdict to be upheld and result in payment by industry did not occur until 2000. In the meantime, however, good things can happen. Litigation can raise awareness among the public or policy makers about a problem or the occurrence of misconduct. The discovery process, in which litigants exchange documents and other evidence to prove or disprove claims, can shed light on industry practices. Litigation can increase prices or costs for manufacturers, which can reduce consumption. Whistleblowers may emerge from within companies to tell their stories in public. And all of these consequences can cause the media and legislators to take a hard look at an industry. Hearings on tobacco in the 1990s, for example, made a deep public impression and damaged the industry even before any cases had been won. Nevertheless, “litigation is a blunt tool for policy change,” said Gottlieb. Regulatory rulemaking and legislation are much more direct and conven- tional means of achieving specific public health policy goals. This was not happening with tobacco, noted Gottlieb, which is why litigation became a “last resort.” But the situation is somewhat different with food. Progress is being made on various fronts, although perhaps not as rapidly as people would like. In the case of food, litigation may be a valuable complement to rather than a replacement for legislation, regulation, and industry change. The first obesity cases were filed in the early 2000s as people became more aware of the obesity problem. The first was a case on behalf of a man named Barbar, who sued a number of fast food companies. That case was quickly dismissed, but a subsequent case, Pelman v. McDonald’s, had more impact. Gottlieb recounted that the case was based partly on consumer pro- tection grounds but also on traditional product liability approaches around negligence and failure to warn, as might be the case in a lawsuit against cigarette manufacturers. In response, a group called the Center for Consumer Freedom helped spearhead a round of state tort reform initiatives that eliminated individu- als’ rights to sue for reasons related to obesity in many states. The campaign against obesity-related litigation dwelled on some of the differences between tobacco and food. Cigarettes cannot be healthy, whereas foods can. Also, there are so many foods and so many food manufacturers and distributors

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53 USING LITIGATION TO CHANGE POLICIES AND PRACTICES that the causation required in a traditional product liability case can be virtually impossible to prove, according to Gottlieb. The use of consumer protection laws to prevent obesity can be much more effective, suggested Gottlieb. “State consumer protection laws offer a real opportunity to change practices around misleading, deceptive, and unfair marketing practices [for] food and beverages, particularly as they affect children,” he said. Such laws complement the authority of the Fed- eral Trade Commission (FTC) by giving state attorneys general and, often, private parties rights of action to prevent unfair and deceptive practices in sales and marketing at the state level. In some cases and in some states, class actions are also available, so many consumers who were deceived can bring a single case. Every state prohibits deceptive practices, and some also use language such as “unfair” or “unconscionable” practices. There are differences among the 50 states’ consumer protection laws that usually hinge on courts’ interpretation of what is deceptive, whether a victim relied on a particular misrepresentation, and what sorts of damages are available. Despite these differences, Gottlieb explained, all states prohibit representations that may mislead or deceive consumers. Several recently decided cases in California used consumer protection laws in an effort to protect child health. In 2008, the case McKinniss v. Gen- eral Mills targeted the makers of Trix Yogurt, Sunny Delight, and Froot Loops for deceptively implying the presence of fruit in their products. How- ever, the court ruled that a reasonable consumer would never expect real fruit to be in these products. In 2008, the case Williams v. Gerber produced the same result, but the decision was reversed on appeal when the Ninth Circuit Court ruled that a consumer should not have to check the Food and Drug Administration (FDA)-mandated Nutrition Facts panel to verify front-of-package representations. If the McKinniss case had been appealed to the Ninth Circuit Court, said Gottlieb, that earlier decision might also have been overturned, suggesting that further cases of this type could be successful. Food companies market both to parents and to children. Children can pressure their parents to buy something and also are the direct target of advertising. They spend billions of dollars on their own each year, and their primary spending category is sweets, snacks, and beverages. Adolescents spend almost $100 a week, although not all on food. “Marketing directly to youth is a very powerful tool for the industry, because so much money is getting spent directly by youth,” said Gottlieb. He noted that consumer pro- tection laws protect the target of the marketing, whether children or parents. The use of state consumer protection law requires understanding whether the purchaser was misled or deceived. Parents are adults and are held to a “reasonable consumer” standard—that is, they should act as a reasonably prudent consumer would act under similar circumstances. Children, on the

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54 LEGAL STRATEGIES IN CHILDHOOD OBESITY PREVENTION other hand, may be subjected to a lower standard because they are more vulnerable. Thus, the threshold may be easier to meet for children than for adults. An argument can be made that any kind of marketing to younger chil- dren is inherently unfair because they are unable to distinguish advertising from content. For example, one lunch product contains messages for par- ents on the front of the package that the product is good for children, and the back of the package is dominated by cartoon characters. Yet the Nutri- tion Facts label on the side of the package notes that the product contains 700 milligrams of sodium and 20 grams of sugar. Similarly, a container of sweetened whipped cream boasts that a serving contains just 15 calories, whereas children are trained on the product’s website to fill up a clown’s mouth with whipped cream. “You might be getting a little more than the ‘15 fun calories’ that way,” said Gottlieb. In 1980, Congress removed the FTC’s authority to regulate advertising to children on the grounds that such advertising is unfair. State consumer protection laws may be able to fill that regulatory gap by helping to protect children from unfair marketing practices. State consumer protection litiga- tion is currently underused, said Gottlieb. It can change practices, educate the public, and engage regulators and policy makers. Attorneys general in every state are empowered under state consumer protection law to inves- tigate and enforce laws, and private groups can act to push back against unfair marketing practices in states with strong consumer protection stat- utes. To further this work, the Public Health Advocacy Institute (2011) is publishing on its website a 50-state map explaining the differences among the states’ consumer protection laws and how those laws might apply to deceptive marketing aimed at children. USING LITIGATION AND THE THREAT OF LITIGATION TO LEVERAGE CHANGE The use of litigation to prevent childhood obesity has helped demon- strate just how difficult and complex the obesity problem is, said Michael Jacobson, co-founder and executive director, Center for Science in the Public Interest (CSPI). Obesity has many potential causes beyond overeat- ing and lack of exercise. Viruses, endocrine disruptors in the environment, or maternal obesity may contribute to childhood obesity, for example, and the physical infrastructure of society makes it difficult to walk and easy to drive. Reducing obesity will require many steps, including improving maternal health, eliminating chemicals from the environment, removing junk foods from schools, changing advertising, and enhancing education. Jacobson observed that litigation has many limitations. Lawsuits gener- ally target just one company at a time and require considerable resources.

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55 USING LITIGATION TO CHANGE POLICIES AND PRACTICES They often involve novel legal strategies or arguments, which can be a barrier to success. “Litigators have exaggerated the potential gains from litigation on diet-related health issues, including obesity,” Jacobson said. At the same time, litigation does have a role. A lawsuit can reverberate elsewhere. For example, if one company is sued with a successful outcome, other companies may change their practices to avoid future lawsuits. CSPI began using litigation several years ago after hiring a director of consumer protection who worked in state attorney general offices in Texas and New York. It has brought or threatened lawsuits involving unsafe ingredients, deceptive labeling, and information not provided to consumers that is material to their choices in the marketplace. Some of these lawsuits were related to obesity, although usually in an indirect way. In 2006, CSPI approached the Coca-Cola Company and PepsiCo about unfair marketing practices in selling soft drinks in public schools. “It is literally selling liquid candy to kids, and it just wasn’t appropriate,” said Jacobson. Meetings continued for about 6 months to address such issues as diet drinks, after-school purchases, and vending machines near gymnasi- ums. Finally, CSPI set a 2-week deadline for reaching a final agreement on the parameters of a settlement. Jacobson recounted that this precipitated a swift reaction from the beverage companies. “They, without telling us, signed an agreement with President Clinton and the Heart Association to get many of the soft drinks, [although] not sports drinks, out of schools in this country. It is hard to know how much the litigation was a factor in their decision, . . . but I suspect that they would rather have been at a press conference with President Clinton than with CSPI.” Another lawsuit involved marketing unhealthy foods to children. A CSPI survey found that many of the foods marketed to children on Saturday morning television were high in sugar, sodium, and fat. CSPI held a press conference and announced that it was giving Kellogg’s 30 days’ notice to change its practices or it would file a lawsuit. The announcement gener- ated considerable publicity and eventually a settlement. The agreement was not entirely satisfactory to either side, Jacobson said. It limited trans fat, sodium, and sugar, but 12 grams of sugar per serving was still allowed, and Kellogg’s would not agree to a whole grain requirement. Jacobson noted that CSPI was even willing to allow more sugar if whole grains were used, but the company would not agree to this compromise. According to Jacobson, the agreement with Kellogg’s helped convince food manufacturers to join the Children’s Food and Beverage Advertising Initiative (described in Chapter 4). Currently, about 15 companies have joined the initiative, he said, which has been “an impetus to move toward healthier foods.” But many problems remain, such as a proliferation of foods containing artificial colors and flavors and refined carbohydrates. A third threatened lawsuit was against McDonald’s for including toys

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56 LEGAL STRATEGIES IN CHILDHOOD OBESITY PREVENTION in their meals. Featuring cartoon or movie characters in ads on Saturday morning television is designed to get children to pester their parents to take them to McDonald’s, Jacobson said. “The kids generally don’t care very much about the hamburgers . . . but they want the toy.” But McDonald’s has not negotiated with CSPI over a threatened lawsuit regarding these toys, so, said Jacobson, it will be up to the courts to decide. Government is also a potential target of litigation, although Jacobson noted that it is difficult to prevail against the government. It is easier to sue the government for delays in responding to petitions or implementing regulations. For example, 5 years ago CSPI petitioned the FDA to require health notices on such products as cigarettes and sugar-sweetened bever- ages. After 5 years the FDA has not responded to this petition. “We could sue over that,” said Jacobson. “Generally the government will go to court and say, ‘Judge, it is only 5 years, we are studying the matter,’ . . . and the judge [will] probably dismiss the case. But that is another gambit in the litigation area.” Litigation is not a magic bullet, Jacobson concluded. But it can be useful in making progress on specific issues in the battle against obesity or other health problems. THE DISADVANTAGES OF LITIGATION Joseph Price, senior partner in the law firm Faegre & Benson, argued that the childhood obesity problem cannot be solved through litigation. Coercion does not yield good public policy, he suggested, and it does not build the consensus needed to make lasting policy changes. Courts generally adjudicate a single dispute based on the evidence presented by the parties in that case. As a result, litigation is narrow and case-specific and may give a distorted view of the larger issues involved. Litigation generally revolves around mon- etary damages, not around policy considerations, and it may not be able to effect broader change. Litigation also may lead to a result that suffices for the specific dispute but not as public policy. In that case, society at large may have to deal with the ramifications of an inadequate or slanted case presen- tation or resolution. An attorney has an ethical duty to the client he or she represents in a specific case, and that ethical duty may not be consistent with the duty to create public policy at a broader level. Also, because the laws in every state are different, different results may follow from the same facts in different jurisdictions. For example, said Price, the Senate recently passed the Childhood Nutrition Act. “There is no way that a piece of legislation like that would have ever been generated by litigation,” he stated. “Litigation is uncertain, [and] it is unpredictable.” Litigation can depend on lay juries that make idiosyncratic decisions. Those selected as jurors are expected to know nothing about the case or

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57 USING LITIGATION TO CHANGE POLICIES AND PRACTICES about the subject to which it pertains, and then to learn all about the scien- tific issues involved within a few weeks. Then they are supposed to be able to answer questions to which science and medicine do not have the answers. Furthermore, decisions made at the trial level are not binding because they can be appealed. National class action lawsuits often cost millions of dollars to prosecute and to defend, and if policy issues are involved, costly appeals are almost always going to occur. If these costs are passed on to consumers, higher prices may reduce the use of an unhealthy product. However, Price cited the example of cigarettes, noting that even though they are extremely expensive today compared with what they cost in the past, people still buy them. Tobacco litigation took 40 years to yield the first productive results, and if and when damage payments are made, they usually go to the parties involved, not to policy or educational initiatives. Furthermore, there are no guarantees that classes will be certified in these cases. The courts have been certifying classes less frequently than in the past, and Price suggested that these cases are worthless to pursue without class action, because the problem is defined by its scale. Legal defenses against these cases can be very strong, suggested Price, and preemption also can be an issue. Moreover, defense lawyers, who Price said will be diligent and creative in their efforts, can challenge the valid- ity of the scientific evidence. They often rely on the concept of personal responsibility to defend against lawsuits, an idea that resonates with juries, said Price. Litigation designed to prevent obesity differs in many ways from tobacco litigation. Tobacco in any form and any amount can be harmful to health, whereas food is not only good for health but essential. Addic- tion to tobacco is not the same as addiction to food, since without food no one could live. There is no question that tobacco can cause disease, but it is much more difficult to establish that obesity causes disease. Showing connections among food, obesity, and disease raises many other issues. Are working families responsible for obesity because there is less time to cook at home? Do food stamps used to buy soda cause obesity? Does obesity result from the failure to have good grocery stores in low-income neighbor- hoods? What is the role of exercise and physical activity? Youth aged 8 to 18 now average 7½ hours of media use during the day, so do computers, videogames, and movies cause obesity? Also, which foods are responsible for obesity? Should Kellogg’s be sued, or Coca-Cola? “Are you sure it wasn’t the pizza or the ice cream or the chips or something else that caused [obesity], or a combination of all, so are you going to sue everybody?” asked Price. How does one know what people ate? What if obesity is linked to a virus or an environmental toxin? Given the widespread nature of the obesity problem, proving causation becomes exceedingly difficult.

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58 LEGAL STRATEGIES IN CHILDHOOD OBESITY PREVENTION Even if food causes obesity, obesity must be linked to disease. But researchers do not know exactly what causes diabetes or heart disease. These diseases occur in thin people as well as those who are overweight, and many people eat poorly and do not get sick. “If science can’t answer these questions, lay juries certainly cannot,” suggested Price. After the first wave of obesity-related litigation failed to make much progress, plaintiffs began to consider consumer fraud cases. But the vast majority of consumer fraud cases have nothing to do with obesity; rather, they are related to labeling and deception. Consumer fraud cases elimi- nate the causal factor behind obesity, but that makes them somewhat disingenuous, Price argued. They are an attempt to do indirectly what cannot be done directly. For example, CSPI objected to Ben and Jerry’s use of the term “natural” on a label, and the company decided to change the label. But “you can’t make ice cream a health food,” said Price. “It is what it is.” Finally, the influence of attorneys’ fees may affect decisions on trials, settlements, and appeals. Price suggested that class action lawsuits that appear to have the intent of furthering obesity prevention may more likely be intended to profit the prosecuting attorneys. When Kellogg’s recently settled a class action lawsuit, the members of the class got up to three boxes of cereal, while the lawyers got $2 million in fees and expenses. The legislative and executive branches are better equipped to achieve broad policy goals because they can obtain input from a wide range of interests, not just the parties to a lawsuit. It also is advisable, said Price, to suppress the automatic reflex of believing that all of society’s ills can be resolved by litigation. Price cautioned that industry, if on the defensive, “will fight.” However, he suggested, the food and beverage industries have been taking positive steps, and he encouraged a cooperative approach as opposed to costly and time-consuming litigation that often benefits only the lawyers involved. DISCUSSION During the discussion period, Stephen Sugarman, University of Cali- fornia, Berkeley School of Law, who moderated the session on litigation, asked whether litigation can be particularly effective with food companies because they do not want to be stigmatized as has the tobacco industry. Price agreed that the food industry is concerned about its image. He sug- gested that many of the industry actions described by speakers (Chapter 4) would not have been taken otherwise. Still, he said, these companies also have a responsibility to their shareholders and investors to sell products. Jacobson responded to Price’s suggestion that a cooperative approach would be more effective by joking “much of this gray hair is due to trying

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59 USING LITIGATION TO CHANGE POLICIES AND PRACTICES the cooperative approach.” CSPI has sent companies many letters and held many discussions with companies and trade associations regarding what the institute considers unfair and deceptive marketing practices. According to Jacobson, industry representatives participate in these discussions and are polite, but then say they will go back to their offices and study the com- plaint. For example, Ben and Jerry’s received its letter from CSPI years ago, but only when CSPI hired a litigator and demanded a response within 30 days did the company respond. Jacobson also pointed out that even without a designated class, it is possible to obtain injunctive relief. “If we can get McDonald’s not to sell toys . . . that is a relief,” he said. Shirley Schantz, National Association of School Nurses, asked about the deception apparent in claims that products are made with “real sugar” as opposed to high fructose corn syrup, implying that consumption of sugar will reduce obesity. Gottlieb responded that there is no proven health ben- efit from using such a claim as an incentive to buy, so an argument exists that it is a misleading claim. In response to a question about where the obesity epidemic is headed, Gottlieb speculated that if no action is taken, health care costs may become unsustainable because of illnesses caused by obesity. Jacobson, however, speculated that Americans may have reached the limit of weight gain, given its leveling off among some groups in the past few years. Perhaps, he sug- gested, those who are susceptible to becoming overweight have done so. Another possibility is that there will be a cultural shift, including changes within industry, that will stem the epidemic. There is no way to predict, said Jacobson. Sugarman pointed out that at the time of the Surgeon General’s 1964 report on smoking, the adult smoking rate was more than 40 percent, whereas now the rate is about 20 percent. He speculated that the drop from more than 40 percent to 27 percent might have been the result of changing cultural tastes, whereas the drop from 27 percent to 20 percent might have occurred because of tobacco control policy. Still, in the case of tobacco, that drop represents tens of thousands of lives saved each year. When asked which litigation he viewed as wasteful, Price specified that he was talking about personal injury cases involving claims that food caused people to become obese and suffer from disease. But he agreed that there has been very little such litigation since its difficulty was demonstrated by the initial lawsuits of this type. He said that “consumer fraud cases appropriately brought are appropriate.” However, not many of these cases have been directed at obesity. Arguing whether high fructose corn syrup is natural or whether ice cream contains natural ingredients fails to get at the heart of the issue, he suggested, and he reiterated his view that litigation is not the way to control obesity. Gottlieb argued that consumer protection cases nevertheless chip away at the problem. And Bruce Silverglade of CSPI observed that the courts are

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60 LEGAL STRATEGIES IN CHILDHOOD OBESITY PREVENTION taking consumer fraud cases seriously. “Sugary candy masquerading as fruit and Vitamin Water containing more calories than vitamins do contribute to the obesity crisis,” he argued. “That has been the focus of our most recent actions.” The public health perspective on obesity differs from industry’s perspective, generating an inevitable conflict, Sugarman observed.