Food & Beverage LITIGATION UPDATE Issue 37 • June 25, 2003 Table of Contents Legislation, Regulations and Standards [1] House Subcommittee Enters Obesity Lawsuit Fracas .......................1 [2] House Panel Blocks USDA Implementation of Country-of-Origin Labeling .................................................................1 Litigation [3] Lawyers and Public Health Activists Ponder Legal Strategies Against the Food Industry at Boston Conference ..............................2 [4] Fast-Food Companies Receive Warning from John Banzhaf ............3 [5] Class Action Suit Filed Against Nestle for Claims About Bottled Water ..............................................................................4 Legal Literature [6] Anthony Robbins, Wendy Parmet and Richard Daynard, “Race, Poverty, and New Strategies to Control the Obesity Epidemic,” Poverty & Race Research Action Council, May/June 2003.........................................................................................4 Other Developments [7] McDonald’s Notifies Meat Suppliers About Antibiotic Policy ......4 [8] Genetically Modified Crops Continue to Generate Controversy ....5 Scientific/Technical Items [9] California Researchers Assert That Acrylamide May Induce Genetic Damage .......................................................................5 [10] CAMY Report Concludes That African-American Youth Are Consistently Exposed to Alcohol Ads .................................................6 Shook, Hardy BaconL.L.P&. TM www.shb.com Food & Beverage LITIGATION UPDATE Legislation, Regulations personal responsibility and everything to do with encouraging corporate irresponsibility.” and Standards Meanwhile, legislation (H.B. 518) recently signed by Louisiana’s governor specifically protects from U.S. Congress civil liability for personal injury or wrongful death “any manufacturer, distributor, or seller of a food [1] House Subcommittee Enters Obesity or nonalcoholic beverage intended for human Lawsuit Fracas consumption ... where liability is premised upon the Considering legislation (H.R. 339) that would individual’s weight gain, obesity, or a health condi- protect manufacturers, distributors or sellers of tion related to weight gain or obesity and resulting food or non-alcoholic beverages from “frivolous from his long-term consumption of a food or nonal- lawsuits,” the House Subcommittee on Commercial coholic beverage.” See www.cspinet.org, June 19, 2003; and Administrative Law conducted a hearing on The Washington Times, June 20, 2003. June 19, 2003, at which Shook, Hardy & Bacon’s [2] House Panel Blocks USDA Implementation Victor Schwartz and law professor John Banzhaf of Country-of-Origin Labeling testified. Schwartz addressed the burgeoning phenomenon of regulation through litigation and The House Agriculture Appropriations Subcom- suggested that legislation which would “solidify mittee has reportedly voted to block the U.S. Depart- existing law” to protect food sellers, manufactur- ment of Agriculture (USDA) from implementing ers and distributors would counter any unsound a mandatory country-of-origin label rule for meat trends that could develop in state courts. Banzhaf, and poultry products. The vote, part of a $76 billion who is actively exploring ways to regulate the food fiscal 2004 spending bill, was defended by subcom- industry through litigation, reportedly claimed that mittee chair Henry Bonilla (R-Texas) as an action personal responsibility is not to blame for America’s that would give lawmakers and the USDA time to “epidemic of obesity.” He noted that while fast-food “air out” objections to the labels brought by retail- companies are “at the top of the list,” “we’re also ers, meatpackers and some livestock producers, suing school boards for selling soft drinks.” according to a news source. Public Citizen criticized Also testifying in support of the bill were a restau- the decision, claiming that the rule would benefit rateur speaking on behalf of the National Restaurant American consumers and family farmers and ranch- Association and the executive director of the Center ers. An organization that opposes such labeling has for Consumer Freedom. The Center for Science in established an informational Web site at www.countryoforiginlabel.org the Public Interest apparently opposes the measure, . See The Washington claiming it “has nothing to do with encouraging Post, Public Citizen Press Release and just-food.com, June 18, 2003. FBLU FBLU 37, June 25, 2003 Page 2 Litigation labeling disclosure. “The goal is not to put fast-food companies out of business, but move them to offer [3] Lawyers and Public Health Activists Ponder healthier alternatives and give consumers important Legal Strategies Against the Food Industry product information,” he said. Banzhaf also supports at Boston Conference the possibility of suing physicians for not advising patients to lose weight and federal agencies – the Plaintiffs’ attorneys and public health advocates Department of Agriculture, Food and Drug Admin- who claim that food companies should be held liable istration, and Federal Trade Commission (FTC) – for for obesity and its attendant health effects convened not fulfilling specific food-related mandates, e.g., at Boston’s Northeastern University School of Law maintaining accuracy in labeling and health claims, on June 20-22, 2003, for a conference organized devising appropriate serving-size guidelines. largely by longtime antitobacco lawyer Richard Daynard. “We’re not doing this to make trial lawyers Recurring themes during sessions on June 21 rich, that’s for sure,” Daynard was quoted as saying. focused on food and beverage company advertising “What we’re facing is an extraordinary epidemic. aimed at children, the effect of such advertising on We have one-third of children in the United States overeating, the behavioral “myth” that individuals that are going to develop diabetes,” he said. Nearly are responsible for their personal choices, and the 100 people attended June 21 sessions of the Public possibility of comparing fatty foods to addictive Health Advocacy Institute’s First Annual Confer- drugs in litigation. “It’s very hard to draw the line ence on Legal Approaches to the Obesity Epidemic, on what is healthy because fatty foods are a healthy while attendance at the June 22 legal strategy part of the diet when eaten in moderation,” Ross workshop was restricted to those willing to sign an Petty, a professor at Babson College and former FTC affidavit swearing (i) “not to appear as an expert wit- attorney was quoted as saying. “They could prove ness or work as a consultant or in any capacity for or that cigarettes caused cancer that killed you, but in the food industry before December 31, 2006,” and making the case with junk food is going to be a lot (ii) that “I, and any firm/organization for which I am trickier,” Petty said. working, am not currently retained by, and hereby In a keynote speech, New York University Profes- commit myself and my firm/organization not to sor Marion Nestle asserted that “eating less is bad take as a client, any defendant in a food industry for business” in describing the effect on the obesity case before December 31, 2006.” epidemic of pricing strategies which allegedly Noting that lawsuits against tobacco companies encourage people to eat or drink more and the roles were initially deemed frivolous, George Washington of supersized portions and youth marketing. Nestle University Law Professor John Banzhaf reportedly made specific references to Coca-Cola Barbie and told participants in the legal strategy workshop to counting books that feature Oreo cookies. Author expect four or five food-related lawsuits in the near of Food Politics: How the Food Industry Influences future. According to news reports, Banzhaf indicated Nutrition and Health, Nestle espouses a conspiracy that such lawsuits may target (i) public schools theory by which she claims the food industry which have “pouring rights” contracts for vending satisfies stockholders by convincing consumers “to machines with soft drink manufacturers and (ii) fast- eat more of their products or to eat their products food companies for misrepresentation in nutrition instead of those of competitors. They do so through FBLU FBLU 37, June 25, 2003 Page 3 advertising and public relations, of course, but regulating advertising aimed at kids, ending product also by working tirelessly to convince government placements in television programs, movies and print officials, nutrition professionals, and the media that media, and creating “healthy schools” by rejecting their products promote health – or at least do no pouring contracts with soft drink companies. See harm. Much of this work is a virtually invisible part Associated Press, Reuters and The Wall Street Journal, of contemporary culture that attracts only occasional June 20, 2003; CanWest News Service, June 21, 2003; notice.” The Financial Times and The Washington Times, June Susan Linn, a psychology instructor at Harvard 22, 2003; The Washington Times, June 23, 2003. Medical School and co-founder of Stop Commercial [4] Fast-Food Companies Receive Warning Exploitation to Children, discussed various alleged Letters from John Banzhaf effects of advertising and marketing to children, claiming that advertisers encourage kids to nag their In an opening salvo to the campaign against those parents to buy certain products and citing Oscar alleged to be responsible for the nation’s growing Mayer’s Lunchables in particular as an example of problems