A recent lawsuit filed in the US, alleging that ultra-processed foods (UPFs) are engineered to be addictive, has targeted no less than 11 major food companies. The lawsuit, which claims that the defendant companies targeted children in their marketing, leading to chronic disease, has been described by lawyers as the first of its kind.
But how much chance does such an unconventional lawsuit have of success?
Will the case succeed?
“This case in particular I don’t think has a lot of precedent,” says Joseph Hoolihan, principal at law firm, Goldberg Kohn. He hasn’t seen a case before that targets “a broad swath of the food and beverage industry” in the way this one does, he explains.
However, the chances of success are not particularly high, he suggests.
What the case has to prove, he explains, is that a reasonable adult, who would be the guardian of the affected children and thus have control over their food consumption, would have been deceived by the advertising of the defendant companies into thinking their foods are healthy.
“These foods are not the types of foods that you would traditionally think are healthy. I don’t think anyone thinks they’re getting a salad or a grain bowl.”
Proving causation between the allegedly deceptive advertising of the defendants and the alleged health impacts of their foods will also be a challenge, suggests Hoolihan.
“You probably know as well as I do, an unhealthy lifestyle has a lot more to it” than diet, he explains. For example, exercise plays a role in a person’s health, as does genetics. “There’s a lot of factors that go into whether or not someone is healthy.”
The theories behind the case, are, in short, a “tough sell.”
How could the case affect the food industry?
The case has the potential to cause follow-on lawsuits if successful. There is even a possibility of such lawsuits being brought forward even before the case has been decided, says Hoolihan, if the case gets passed the initial motion to dismiss (when the court decides whether to throw out the case).
In the event that the case is successful, its affect on the food and beverage industry would largely depend on the ‘substance’ of the ruling.
If the ruling reflects the norms of a traditional false advertising case, in this case meaning it would decide the defendants had marketed the food as healthy when in reality they were unhealthy, the ruling would essentially tell the defendants not to market the product as they have previously marketed it.
This, Hoolihan suggests, would likely not have a significant affect on the food and beverage industry as a whole.
However, if the eventual ruling focuses heavily on the alleged health affects of UPFs, it could result in either UPFs not being allowed to be sold anymore, or having mandated warning labels on them.
The potential results of this, says Hoolihan, could be similar to California’s Proposition 65, legislation which mandates health warnings on a range of products, including certain foods, in the US state.
“Maybe that’s the sort of world we might be looking at if these types of claims were routinely successful,” he suggests, while stressing such an outcome is unlikely.
The case could take years, according to Hoolihan, to be resolved. Even the initial pleading stage could take around 6-12 months.
In Europe, however, differences between EU and US law mean that a case like this is less likely.
