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Class Action Lawyers Who Sued Big Tobacco are Suing Junk Food Giants

Lawyers From Suits Against Big Tobacco Target Food Makers

FOOD 1 articleLarge Class Action Lawyers Who Sued Big Tobacco are Suing Junk Food Giants
Christine Sturges, a hairdresser from California, is one of the plaintiffs in a suit against ConAgra involving its Pam cooking spray.
By  Originally published August 18, 2012 in New York Times

Don Barrett, a Mississippi lawyer, took in hundreds of millions of dollars a decade ago after suing Big Tobacco and winning record settlements from R. J. Reynolds, Philip Morris and other cigarette makers. So did Walter Umphrey, Dewitt M. Lovelace and Stuart and Carol Nelkin.

ALT FOOD 3 articleInline Class Action Lawyers Who Sued Big Tobacco are Suing Junk Food Giants

Don Barrett is among a group of lawyers taking on food companies over what they say are mislabeled products and ingredients that mislead consumers.

Ever since, the lawyers have been searching for big paydays in business, scoring more modest wins against car companies, drug makers, brokerage firms and insurers. Now, they have found the next target: food manufacturers.

More than a dozen lawyers who took on the tobacco companies have filed 25 cases against industry players like ConAgra Foods, PepsiCo, Heinz, General Mills and Chobani that stock pantry shelves and refrigerators across America.

The suits, filed over the last four months, assert that food makers are misleading consumers and violating federal regulations by wrongly labeling products and ingredients. While there has been a barrage of litigation against the industry in recent years, the tobacco lawyers are moving particularly aggressively. They are asking a federal court in California to halt ConAgra’s sales of Pam cooking spray, Swiss Miss cocoa products and some Hunt’s canned tomatoes.

“It’s a crime — and that makes it a crime to sell it,” said Mr. Barrett, citing what he contends is the mislabeling of those products. “That means these products should be taken off the shelves.”

The food companies counter that the suits are without merit, another example of litigation gone wild and driven largely by the lawyers’ financial motivations. Mr. Barrett said his group could seek damages amounting to four years of sales of mislabeled products — which could total many billions of dollars.

“It’s difficult to take some of these claims seriously, for instance, that a consumer was deceived into believing that a chocolate hazelnut spread for bread was healthy for children,” said Kristen E. Polovoy, an industry lawyer at Montgomery McCracken, referring to a lawsuit that two mothers brought against the maker of Nutella. “I think the courts are starting to look at the implausibility of some of these suits.”

A federal judge in California in 2009 dismissed a case against PepsiCo, which accused the company of false advertising because Cap’n Crunch’s Crunch Berries cereal does not contain real berries. He ruled that “a reasonable consumer would not be deceived into believing that the product in the instant case contained a fruit that does not exist.”

While the lawyers are being questioned about their motives, they are not alone in pursuing the food industry.

In recent weeks, the Center for Science in the Public Interest has sued General Mills and McNeil Nutritionals over their claims on Nature Valley and Splenda Essentials products, and warned Welch’s it would sue unless the company changed the wording on its juice and fruit snacks. The Federal Trade Commission won settlements from companies like Dannon and Pom Wonderful for claims about their products’ health benefits. And PepsiCo and Coca-Cola face lawsuits over claims that their orange juice products are “100% natural.”

The latest playbook — like the one that paid off in the wave of tobacco litigation — could prove potent, as the food companies’ own lawyers have warned.

Other plaintiffs’ lawyers have largely taken aim at food products marketed as “healthy” or “natural,” subjective claims that can be easily disputed by expert witnesses. Unlike foods labeled “organic,” there are no federal standards for foods that are called “healthy” or “natural.”

The new batch of litigation argues that food companies are violating specific rules about ingredients and labels. Mr. Barrett’s group, for example, has brought a case against Chobani, the Greek yogurt maker, for listing “evaporated cane juice,” as an ingredient in its pomegranate-flavored yogurt. The Food and Drug Administration has repeatedly warned companies not to use the term because it is “false and misleading,” according to the suit.

“If you’re going to put sugar in your yogurt, why not just say it’s sugar?” said Pierce Gore, a lawyer affiliated with Mr. Barrett’s group.

End of original article: OWC’s Editor’s Note: Labeling changes alone is not the answer. Food manufacturers should be required to meet some ratio of nutritional value to caloric intake in order for an item to be sold as food and stocked in food isles in stores. People should still be free to make and consume junk food, but not labeled as food. Junk food isles, most isles inside most grocery and convenience stores, should have to be labeled with warning signs along the lines of “Warning: Items in these isles when consumed may be damaging to your health!” Maybe that would make mothers and fathers with children think twice about what they bring home. The obesity epidemic in the US will only subside once people shift back to a predominantly plant based diet, ideally a raw plant based and raw juice diet.

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