Emerging Issues in the U.S. Samuel B. Sebree Shook, Hardy & Bacon LLP March 19, 2013
Emerging U.S. Issues • Food Under Fire • Applying the “Big Tobacco” litigation template to food manufacturers • Immediate Future of the Alien Tort Statute • Does it apply to corporations? • Does it apply to conduct occurring outside the U.S.?
Food Litigation: What We Know Already Crunch Berries are NOT a fruit.
The Tobacco Template • “Iron Triangle” • Plaintiff’s lawyers • File litigation; • Discovery documents; • Identify whistleblowers; • Public Officials • File litigation; • Begin investigations; • Use media contacts to publicize themes • Media • Publicize “leaked” documents; • Favorable articles on “health” champions • Goal • Blame a multi-factorial health problem on a single industry • Demonize industry • Isolate the industry • Publicize the demonization – social media, conventional media • Taint the industry’s image in the minds of legislators, politicians, regulators, the public • Key Themes • Youth Marketing • Addiction
The Template in Action: Plaintiff’s Counsel 2012 • Strom, “Lawyers from Big Tobacco Target the Food Industry” • Hicks, “Big Tobacco and Big Food: The Analogy Continues” • Laskawy, “Lawyers Go After Processed Food Industry with Tactics That Worked in Big Tobacco” • Levick, “Tobacco Lawyers Set Their Sights on the Grocery Store” • “The Lawyers who took on Big Tobacco decided the time was ripe to go after “Big Food”
The Template in Action: Plaintiff’s Counsel • 40+ federal consumer class actions in 2012 • Typical claim: Misbranded food products • Products labeled “0 grams trans fat” contain fat • Products labeled “100% natural” contain chemical preservatives, synthetic chemicals, artificial colors, other artificial ingredients • Causes of Action • Unfair/unlawful business practices • Misleading/deceptive/fraudulent business practices • Key initial hurdle: Surviving motion to dismiss • May open door to document discovery • Claims will evolve as documents come out
The Template in Action: Public Officials “More than 100 health organizations and municipal public health departments, along with more than two dozen scientists, have asked the U.S. surgeon general to issue a report on sugar-sweetened soft drinks – akin to the landmark 1964 report on tobacco.”
Key Themes: Obesity & Addiction • February 2013: PubMed lists 1300+ studies addressing alleged “food addiction” or “science.” • Almost 500 studies relate to obesity and addiction. • Processed foods and sugary drinks “can hijack the brain in ways that resemble addictions to cocaine, nicotine and other drugs.” • Langreth and Stanford ,“Fatty Foods Addictive as Cocaine in Growing Body of Science” (2011) • “The data is so overwhelming the field has to accept it. We are finding tremendous overlap between drugs in the brain and food in the brain.” - Dr. Nora Volkow
Obesity “Food is obviously different from tobacco, and the food industry differs from tobacco companies in important ways, but there also are significant similarities in the actions that the industries have taken in response to concern that their products cause harm.” - Brownell, “The Perils of Ignoring History” (2009).
Obesity Dimensions: WHO • Framework Convention on Tobacco Control now has 168 signatory countries. • WHO now addressing obesity issue, noting that billions are malnourished, while more are overweight or obese. • 2008-2013 Global Strategy Action Plan (WHO) urges • Reducing salt levels • Eliminating industrially produced trans-fatty acids • Decreasing saturated fats • Limiting free sugars • Promoting the responsible marketing of foods and non-alcoholic beverages to children to reduce the impact of foods high in saturated fats, trans-fatty acids, free sugars, or salt. • Global Framework Convention on Obesity?
Obesity, Addiction & “Youth Marketing” “Targeting kids is the food industry’s Achilles heel.” -Plaintiffs’ lawyer John Coale, Fortune (2003). “Obesity is now the second most prevalent “actual cause of death” behind tobacco. In a future unfairness action involving food marketing to children the substantial injury element would be that such marketing triggers purchases of unhealthy foods and beverages associated with obesity and overweight that would not otherwise be made. There is evidence that food marketing is a significant contribution to obesity. . . . Food marketing cannot be reasonably avoided by children.” - Wiking & Gohlieb, “Major Findings From 50 State Survey of State Consumer Protection Law to Limit Junk Food Marketing to Children,” (2012).
Attacks On Industry Involvement in Food Science or Research • “Big Sugar” allegedly conducted a “decades long effort to stack the scientific deck” regarding the health effects of sugar. Mother Jones 2012 • Food industry had allegedly paid for seating at “the health policy table.” Reuters October 2012 • “Is the Junk Food Industry Buying the WHO?” Mother Jones November 2012 • “Big Food” and “Big Soda” manufacturers of alleged unhealthy commodities “rule the global food system”PLOS Medicine Series 2102
Coming Soon? • Leak of “secret” documents? • Industry whistleblowers? • Politicians as plaintiffs?
Alien Tort Statute • Provides federal court jurisdiction to claims: • By an alien • for damages from tort • Committed in violation of: • Law of nations • U.S. treaty • Adopted in 1789 • Provided a basis for jurisdiction in 2 cases from 1789-1980 • Since 1980, scope of recognized claims has grown considerably • Applied to private actors if: • Action is done “under color of law” • Violates a definite norm of universal concern
Products Cases • Abdullahi v. Pfizer & Adamu v. Pfizer • Claims: Pfizer volated norm against “nonconsensual medical experimentation • Involved approval and facilities of the Nigerian government • Kiobel v. Royal Dutch Petroleum • Supreme Court to address whether ATS applies to conduct occurring outside the U.S. and perhaps whether it applies to corporations