Cross-posted by at WLF’s Contributor Site

Plaintiffs’ lawyers and their activist allies have been working to turn “unhealthy” food and drink products into the “next tobacco.” Through high-stakes litigation, they pursue their dual goals of 1) regulating how such companies design, produce, and market their products and 2) transferring billions of dollars in hard-earned profits to lawyers’ and activists’ pockets.

These efforts have not borne fruit thus far. Plaintiffs’ advocates had high hopes when a suit alleging various theories of fraud, deception, false advertising, and other assorted misdeeds against McDonalds, Pellman v. McDonalds, was allowed to proceed early last decade. But last year, an appeals court denied the suit class action status. A plethora of class action consumer fraud suits, which claim false or misleading food/beverage marketing, have been filed in federal courts (see this section of WLF’s Eating Away Our Freedoms site). Those suits haven’t been rewarding for the plaintiffs’ bar to this point.

The fortunes of regulation-by-litigation practitioners could change dramatically, however, if the concept that certain foods or substances in foods are “addictive” catches on with the public and with policy-makers. Over the past several decades, the general concept of addiction has been dumbed-down and applied to behaviors and substances which at most are habit-forming, and which don’t lead to physical dependence, increasing tolerance, and withdrawal. A 2007 WLF Monograph provides an extensively documented explanation of this transformation and how politics and ideology fueled it.

Anti-obesity crusaders are working hard to convince the public that foods and beverages can be addictive, and that such addictions rob consumers of their personal responsibility and choice. Former FDA Commissioner Dr. David Kessler pushed the addiction angle in his 2009 book, The End of Overeating. Studies are being churned out and unquestioningly reported on in the media. One such report opened with the line, “Cupcakes may be addictive, just like cocaine.” In that same report, activist Kelly Brownell (who happens to be the author of a recent addiction study), gushed to the reporter, “This could change the legal landscape.” And then in swooped George Washington University “public interest law” professor John Banzhaf, declaring in a press release, “Once the addiction evidence is strong enough, fast food outlets could be held liable for failing to warn consumers.”

Right on the heels of such reports, on November 27, came a 60 Minutes report, “The Flavorists: Tweaking tastes and creating cravings,” which showed how one professional flavoring company (in the words of one company employee) “manipulates” food with chemically created additives. Another company employee, in response to Morley Safer’s question, “So you’re trying to create an addictive taste,” said “That’s a good word.” Such nefarious technology not only (gasp!) makes our food taste good but, in the words of Dr. Kessler, “they hijack our brain.” If this particular company wasn’t on the radar screen of class action plaintiffs lawyers before, it certainly is now, especially after the report labeled flavorists as “accomplices – the hired gun of the food industry.”

It’s unclear whether all this activity is influencing how the public or their policy makers think about the concept of “food addiction.” But for sure plaintiffs’ lawyers are paying attention, as evidenced by an uptick in discussion of the issue on personal injury law firms’ websites (see here, here, and here).

Liability claims based on consumers’ “addiction” to certain foods would still face substantial hurdles, such as the need to show how an allegedly addictive substance in food caused a plaintiff to become dangerously overweight. Causation is much different from correlation. Lawyers would have to discount the many other factors that lead to obesity, leaving addiction as the main culprit. They would also have to show that food companies knew or should have known of the addictive nature of their product, or knowingly manipulated the product to become addictive.

Those hurdles certainly won’t deter profit- and power-seeking ideologues, however. Keep in mind how many years it took for the legal theories and lawsuits against tobacco companies to finally hit critical mass.