Cross-posted at WLF’s contributor page

At a time when all their attempts to impose “sin taxes,” more regulation of advertising, and bans on certain products have been shot down, advocates of government intervention into America’s food choices have ratcheted up their below-the-belt demonization campaign.

Words such as “toxic,” “poison,” “manipulation,” “addictive,” and “inherently dangerous” are increasingly used in the media when food and obesity are discussed. Viewers of MSNBC’s popular “Morning Joe” last Tuesday were treating to a red-faced rant from co-host Mika Brezinski about how, among other things, “sugar is poison” and soda is “killing our children.” (An ironic side note: “Morning Joe” is sponsored by Starbucks, purveyor of the 20 oz. Java Chip Frappuccino (570 cal., 88 g. of sugar)). Thousands more viewers of Al Sharpton’s “Politics Nation” show on March 8 heard about how “food companies are manipulating their products in order to get you addicted to them.” A segment on the talk show “Dr. Oz” had the good doctor talking about how parents face “a powerful conspiracy when it comes to feeding their families.”

Such views and rhetoric are certainly not originating at the stratospheric level of the broadcast press. They are parroting what they hear in other media outlets, like The New York Times, Huffington Post, and The Atlantic, and also from public health academics/activists from schools such as Yale, NYU, and The University of California. The Times Magazine offered a must-read for activists and trial lawyers on February 20, excerpting from a Times reporter’s book, Salt Sugar Fat: How the Food Giants Hooked Us. It purports to relate through interviews and assessments of internal documents how processed food makers meticulously adjust their recipes to give their products (gasp!) maximum consumer appeal and achieve a “bliss point” where consumers want more. The author learned firsthand how bad things like cheese crackers and frozen waffles would taste without the additions of “toxic” salt and (heavily government-subsidized) sugar.

Media reports have presented Salt Sugar Fat as further evidence of companies’ nefarious manipulation of our food, which leads to “food addiction.” Various other books and studies, some discussed in past Legal Pulse posts (here and here) have advance this concept, claiming that some ingredients in food have an effect on the brain similar to marijuana, or that manipulated combinations of ingredients make them irresistibly “hyperpalatable.” The studies are severely lacking in detailed analysis or clear evidence of cause and effect. And as one published evaluation done by Cambridge University researchers relates, food addiction studies have failed to establish that such classic elements of addiction such as tolerance and withdrawal are evident in “food addicts.”

Of course, in the court of public opinion and among policy-makers clear proof isn’t needed. Mere correlation between food and “addiction,” or even a plausible theory, is more than enough to support calls for taxation, regulation, and other measures to protect the defenseless, addictable public.

The food addiction concept could mean even more to plaintiffs’ lawyers who are salivating over food and beverage industry profits, and legal activists who want to use litigation to reshape social behavior. Such lawyers and activists are working to posture food as the “next tobacco.” Food industry groups and their lawyers are equally anxious to convince us (and maybe themselves) that food (or sugar, or salt) is not tobacco, with law journal articles and association seminar panels devoted to countering the notion.

From a legal and common-sense perspective, it’s hard to take seriously the idea of massive class action lawsuits against food and soda makers alleging fraud, conspiracy, failure to warn, breach of warranty, or other violations. The law journal article mentioned above does an excellent job explaining why such claims have little merit. The major flaws that undercut obesity lawsuits lie in the inherent complexity of food consumption and obesity. Given the many factors that contribute to obesity, and the diversity of foods people eat, how could one possibly prove causation?

Don’t doubt, however, that activists and their lawyers will try, and all the publicity over “addiction” could play to their favor. Perhaps unflattering documents will arise through discovery in one of the many food labeling class action suits pending in court, some of which were brought by lawyers from the “tobacco wars.” Maybe whistleblowers seeking fame and fortune will come forward with secret strategy memos. Or it’s possible that ambitious state attorneys general could be convinced to get involved. And remember, all it takes is one or a few judges (who may read The New York Times or tune in to MSNBC) keen on making a name for themselves to start the litigation ball rolling down the hill. They’d have to cast aside a lot of basic legal principles, but we’ve seen judges do that before in the name of “public health,” haven’t we?

Then again, food has been seen as potentially the “next tobacco” for at least the last decade, and it still isn’t. Let’s hope it’s all just talk and wishful thinking for another ten years, and beyond.