Just as Harris Beach Murtha pointed out in its legal advisory about rising ultra-processed food regulations, the nation is experiencing a surge of lawsuits on this topic, too.
We know ultra-processed foods are a staple of diets throughout the nation — because they are accessible, affordable and convenient due to their long shelf lives and ready-to-eat nature. But they’re also a target, receiving a great deal of attention from researchers, governments, media and, yes, courts.
The legal and reputational risks associated with ultra-processed foods have never been greater for food and beverage companies. It is extremely important to not only be aware of regulation and litigation around the country, but to be prepared to react to new developments. In fact, seeking experienced legal counsel to assist with proactively navigating this complex landscape is a must. The upsurge in litigation may be a catalyst for food and beverage companies to be proactive about ingredients, manufacturing, labeling, marketing and more.
Harris Beach Murtha’s Medical and Life Sciences Industry Team regularly tracks legal cases, regulations and other news pertaining to ultra-processed foods so team members can keep clients informed, present topical information in conferences, seminars and webinars, and prepare cutting-edge trial strategy when defending food and beverage companies in lawsuits.
Here are five things food and beverage companies should know about ultra-processed foods lawsuits.
1. What UPF Lawsuits Claim and Seek
Ultra-processed food lawsuits generally allege the foods cause obesity, diabetes, cancer, cardiovascular disease, hypertension and non-alcoholic fatty liver disease, among other adverse health conditions. The lawsuits seek financial awards that will cover treatment costs and any suffering that occurs because of those diseases.
The lawsuits may also seek changes to ingredients, labeling, advertising and more. They accuse food and beverage companies of knowingly hiding research that shows the foods are unhealthy, misleading labeling, deceptive and aggressive marketing – all in an effort to get consumers addicted to the products.
2. A Test Case for UPF Lawsuits in Pennsylvania
In what was seen as a test case, a Philadelphia teen filed a lawsuit against food and beverage companies such as Kraft and Coca-Cola, alleging the companies produced addictive snacks and desserts that led to the teen’s Type 2 diabetes and non-alcoholic fatty liver disease.
The lawsuit, Martinez v. Kraft Heinz Company, Inc. et al, accused the companies of using the same tactics as tobacco companies to get children addicted to ultra-processed foods, leading to harmful health conditions. The teen had cited more than 100 foods as leading to his diagnosis.
U.S. District Judge Mia Roberts Perez dismissed the lawsuit, basing her decision on two primary legal deficiencies:
- Failure to Prove Causation: Judge Perez ruled the complaint did not plausibly connect the defendants’ specific products to the teen’s Type 2 diabetes and non-alcoholic fatty liver disease. The judge noted these diseases have a multitude of causes, and Martinez did not establish a clear link to the defendants’ ultra-processed foods.
- Lack of Specificity (Pleading Requirements): The complaint was deemed a “shotgun pleading” because it targeted more than 100 products from multiple food companies, not specifying the exact products the teen ate or drank, how much, when he consumed them or what relation they had to his diagnoses. The lack of specificity provided insufficient notice to the food and beverage companies, hindering their ability to prepare a defense.
Following the dismissal, Stacy Papadopoulos, general counsel of the Consumer Brands Association, an industry organization representing food and beverage makers, said “classifying foods as unhealthy simply because they are processed misleads consumers and exacerbates health disparities.”
3. The Martinez Case May Not Be Over
While the case was dismissed, the plaintiff’s attorneys are seeking permission to refile the lawsuit with more specific details. The lawsuit was not dismissed on the merits but due to a lack of specific facts, and it seems the judge has provided a blueprint for the attorneys to follow and meet her rigorous standards. Appealing the Judge’s decision is also an option.
4. What Pennsylvania’s UPF Case Means for Future Cases
Because the case was dismissed on causation and pleading issues, the court did not consider defense arguments, so there is much left unsaid for future cases. The strategy might have focused on First Amendment challenges regarding compelling speech or arguments for federal preemption based on food labeling laws.
It does signal plaintiffs will need to meet rigorous pleading requirements with specific detail. Vague allegations won’t cut it. Future plaintiffs must also prove direct links between the products they are accusing of harm and their diseases, which often result from multiple factors.
But the case provides a roadmap on how future plaintiffs should craft their cases, instructing them to focus on specific foods and provide expert testimony and factual evidence that proves a direct causal link from the food to diseases.
5. Expect More UPF Lawsuits
They’re already in process. Lawsuits alleging various levels of concerns with ultra-processed foods are progressing in courts across the country, and it is widely believed more are coming. Law firms are actively advertising for clients. A federal definition of ultra-processed foods is likely to spur even more. Ultimately, there may be consolidation of those suits as multidistrict litigation (MDL) or certified as class actions.
It is important to remember that an overwhelming number of people in this country eat ultra-processed foods and do not suffer negative health consequences.
What Should Food and Beverage Companies do About Rising Litigation?
Given the attention UPFs are seeing from researchers, regulators, the media, courts and even consumers, it is time to be proactive. An experienced attorney can help develop a plan that not only responds to litigation decisions, but evaluates the risk of past and future practices and proactively mitigates that risk. That plan should include:
- Monitor federal and state actions. The federal government is seeking to develop a formal definition of UPFs; this will likely increase the number of lawsuits claiming UPFs lead to harmful health conditions, as it creates a new basis for consumer protection lawsuits and false advertising claims if marketing and advertising conflict with the official UPF classification.
- Audit ingredients. The federal government has outlawed Red Dye No. 3. States such as West Virginia are attempting to outlaw other artificial dyes and additives. Can you proactively replace some that might be the target of regulation or lawsuits? Can you get that process moving in advance of such actions?
- Review marking and advertising claims. Ensure the products are being marketed and labeled in honest and lawful ways.
- Develop defense strategies. We know lawsuits must satisfy an array of legal requirements and defense strategies should be strong and varied. The science on ultra-processed foods is not settled. Experts that counteract addiction theories will be useful.
Harris Beach Murtha’s Medical and Life Sciences Industry Team has the experience and knowledge to help your company navigate the rapidly evolving legal and regulatory landscape surrounding UPFs. For guidance, please reach out to attorney Kelly Jones Howell at (212) 912-3652 and khowell@harrisbeachmurtha.com, or to the Harris Beach Murtha attorney with whom you most frequently work.
This alert does not purport to be a substitute for advice of counsel on specific matters.
Harris Beach Murtha’s lawyers and consultants practice from offices throughout Connecticut in Bantam, Hartford, New Haven and Stamford; New York state in Albany, Binghamton, Buffalo, Ithaca, New York City, Niagara Falls, Rochester, Saratoga Springs, Syracuse, Long Island and White Plains, as well as in Boston, Massachusetts, and Newark, New Jersey.
