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Lawyers, Food and Money

By David L. Wallace
January 30, 2013

The first food litigation claims were filed a decade ago against McDonald's for obesity-related health problems. Pelman v. McDonald' s Corp., 2003 WL 22052778 (S.D.N.Y. Sept. 3, 2003). As public-interest lawyer Joe Banzhaf said at the time, these personal injury claims were an “opening gun” meant “to make fast food companies bear ' some of the responsibility for the huge cost of the epidemic of obesity” in America. See J. Banzhaf, Who Should Pay for Obesity, S.F. Daily J. (Feb. 4, 2002). The number of potential claimants is staggering, given the dramatic increase in obesity rates in the U.S. over the past two decades. According to government statistics, more than one-third of adults in the U.S. (35.7%) and approximately 17% (or 12.5 million) of children aged 2-19 years are obese. Centers for Disease Control & Prevention, Overweight and Obesity: Data and Statistics (Apr. 27, 2012). It has proved difficult for a variety of reasons, however, for plaintiffs to get food-related personal injury actions off the ground, not least of which is factual causation ' the need “to isolate the particular effect of McDonald' s foods on their obesity and other injuries,” as opposed to other causal factors. See Pelman, supra, at *11

Consumer-Fraud Class Action 'Food Fights'

More recently, a number of lawyers who made hundreds of millions of dollars after winning a record settlement from cigarette makers in the late 1990s have taken notice and aim at major food makers. See S. Strom, Lawyers from Suits Against Big Tobacco Target Food Makers, N.Y. Times (Aug. 18, 2012). Having themselves once been stuck between a rock a hard place in cases like Pelman, these history-making veterans of tobacco litigation are taking a different tack by filing consumer class actions against food companies for mislabeling based on the use of unhealthy ingredients, such as sugar, high-fructose corn syrup, and trans or saturated fats. Food products marketed with health-benefit claims (e.g., “heart-healthy,” “cholesterol-reducing,” etc.) are also being targeted. For the most part, these cases are being run under plaintiff-friendly unfair and deceptive trade practice statutes now common in many states, particularly California and New Jersey. See, e.g., Kane v. Chobani, No. 5:2012cv02425 (N.D. Cal. May 14, 2012).

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