Reservations about soft drink class action suit
A coalition of lawyers who have sued tobacco companies says it is close to filing a class-action lawsuit against soft-drink makers for selling sugared sodas in schools.
Leading the litigation effort is Richard A. Daynard, an associate dean at Northeastern University School of Law in Boston, who is also president of the Tobacco Control Resource Center and chairman of the Tobacco Products Liability Project, both of which have provided legal support to attorneys suing tobacco companies. Joining Daynard is Stephen A. Sheller, a Philadelphia lawyer who came up with the legal theory that tobacco firms deceived consumers into thinking their low-tar and -nicotine cigarettes were safer to smoke than regular cigarettes. Also involved in the prospective lawsuit is the Center for Science in the Public Interest, a consumer advocacy group that has aggressively pressed for more explicit food labels and less fat and sodium in all kinds of food.
Note that these are not the meat-and-potatoes trial lawyers who typically represent individuals and families who have suffered a grievous injury. They are public health crusaders who try to find a client to fit a theory, and use the courts to change public policy and large-scale corporate behavior. Referring to them as "trial lawyers" or "personal injury lawyers" would be misleading, but I am sure the tort reform zealots will do just that.
I have serious reservations about this kind of food and beverage class action litigation. And not just because I went to law school at a univeristy (Emory) that was built on Coca Cola money. Some of my concerns are:
* Unless they can prove the sinister use of toxic or physically addictive additives in food and beverage products, they appear to be complaining about things that are obvious common sense characteristics. We have all known since childhood that too much sugary soda and too much fatty food is likely to make you fat and rot your teeth. We choose to indulge anyway. Just today I decided to skip the low-fat, low-calorie salad at lunch, and indulge in a double hamburger with fries and a full-sugar, non-diet soft drink. I knew exactly what I was doing, but hey, I ran a marathon in October and a half-marathon in November, and I'll run it off tomorrow.
* A massive class action that strikes the average citizen as silly and overreaching will only feed the climate of "tort deform" by which corporate America seeks to strip rights and redress from average citizens. It will enter the litany of "frivolous lawsuits" along with the real but misrepresented (McDonalds hot coffee case) and the merely mythical (guy holding up lawn mower to use as hedge trimmer). It will hurt the system upon which people with real and serious injuries depend.
The change of behavior these crusaders seek -- to stop sales of sugary soft drinks to children at school -- is probably good. I am sure they mean well. But I think their use of tort law for this purpose will hurt more than it helps.
The Shigley Law Firm represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a "SuperLawyer" in Atlanta Magazine and one of the "Legal Elite" in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks).
Back in the early 1980s, a public interest group brought suit against General Foods in California alleging that Saturday morning cartoon advertising for breakfast cereals "lied" to consumers by making certain promises.
They alleged that the advertising promised that cereals that contained between 38%-50% their weight in sugar were nevertheless part of a "well-balanced" breakfast; that eating such cereals was equated with "fun" and "adventure"; and that "fruity" cereals actually contained fruit.
The California Supreme Court actually certified the case for class action, but the suit never went to trial. Committee On Children's Television, Inc. v. General, 35 Cal.3d 197, 197 Cal. Rptr. 783 (Cal. 1983).
More recently, a San Diego mother is suing three major cereal companies for misleading advertising by suggesting that low-sugar cereals were healthier than the regular-version varieties. She is also seeking class action status & to disgorge the companies of their profits from low-sugar cereals. Story available at www.californiahealthline.org/index.cfm?Action=dspItem&itemID=110424&ClassCD=CL117
The companies have stated they never made any specific health claims for the low-sugar cereals.
Nonetheless, the plaintiff claims she was "extremely upset" and even "alarmed" to find that most of the reduced-sugar cereals had the same calories as the regular versions. Her attorney claims that consumers don't always have the educational ability to make informed decisions based on nutritional labels & ambiguous one-line ads, such as the "low-sugar" line prominently displayed on cereal boxes.
They may not be educated consumers in the supermarket, but they've got a PhD in how to make a fast buck.
Now the Attorney General of California has filed suit against several fast food chains (including Burger King, Wendy's, McDonald's & KFC) and snack food companies because of a state law requiring warning labels on French fries & potato chips. He is seeking a court order to force the defendants to warn consumers that their potato products allegedly contain acrylamide, which is on the state's list of carcinogens. Story available at http://ag.ca.gov/newsalerts/release.php?id=1207
So now we've got legal attacks against the burgers, the soft drinks, the fries & our breakfast cereals.
What we need is a warning sign posted on the inside of all residential doors which states that passing through the doorway may subject you to reality.
