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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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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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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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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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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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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.
