Currently browsing posts about: Lawsuits

Here’s the chronology:

In June, Texas passed the “Make Texas Healthy Again” bill which required food companies to put warning labels on products containing any of 44 ingredients such as artificial additives, dyes, and chemicals.  As I wrote at the time, the label would have to say:

WARNING: This product contains an ingredient that is not recommended for human consumption by the appropriate authority in Australia, Canada, the European Union, or the United  Kingdom.

In December, the American Beverage Association, joined by other food industry groups, sued Texas over this.

In February, a federal district court issued an injunction on First Amendment grounds.

Also in February, Texas issued a final rule on the labeling law.  But this says that “ingredients considered generally recognized as safe or determined to be safe by the FDA or USDA are not subject to the rule requirements.”

Oops.  I’m pretty sure that most of those 44 ingredients are considered GRAS by the FDA.

It will be interesting to watch what the courts decide on this one too.

Interesting times we live in.

The Make America Healthy Again (MAHA) movement now counts 22 states as having passed laws eliminating sodas and sometimes other sweet foods from what SNAP recipients are allowed to buy with their electronic benefit cards.

I am often asked what I think about these laws.  I can argue them either way.

Pro: Even with these restrictions, SNAP recipients can continue to buy sugar-sweetened beverages with their own money; the government should not support purchases of demonstrably unhealthy drinks.

Con: These laws are not about improving the health of SNAP recipients; they are about punishing the poor for being poor, further stigmatizing them, and encouraging them to withdraw from benefits to which they are entitled.

I have long been a supporter of pilot research projects (USDA “waivers”) to see whether restrictions like these help SNAP recipients eat more healthfully.  But these laws are not designed that way.  I just hope their effects are being researched adequately.

Now, the laws are being challenged in court. The lawsuit calls for a halt to waivers in Colorado, Iowa, Nebraska, Tennessee and West Virginia – five of the 22 states to which USDA has granted them.

The suit comes from the National Center for Law and Economic Justice, an advocacy group focused on equity, and Shinder Cantor Lerner, an anti-trust law firm.

The suit alleges that USDA is:

• Trying to shrink SNAP by authorizing a patchwork of state laws.
• Changing the statutory definition of food without authority or notice.
• Preventing recipients from buying foods they need to maintain health.
• Confusing SNAP recipients about what they can buy.
• Increasing burdens on retailers, thereby adversely affecting SNAP recipients.

I can’t help wonder whether the food industry is behind all this.

Calley Means, who advises Robert F. Kennedy, Jr, says no.  He blames the Democrats.

What are we to make of all this?

I guess we wait to see what emerges during the discovery process and what the courts decide.

What a strange and complicated time this is.

This week, I’m going to be writing about lawsuits against food companies, starting with the class action lawsuit filed against David Protein, which states that the company misrepresented the calorie and fat content of its bars.

Here is a Nutrition Facts panel from the company’s website.

The FDA allows several methods for counting calories in food products, one of which is to apply Atwater values, 4 calories per gram for protein and carbohydrate, and 9 calories per gram for fat (this is why fat is fattening).

Doing that here gives:

Fat: 2.5 x 9     =    23 (rounded off)

Carbs: 12 x 4  =    48

Protein: 26 x 4 = 104

Total calories  =   175

This is higher than what’s on the label.  But calories are difficult to measure accurately, so the FDA allows a 20% margin of error.

But the difference must have gotten the attention of the plaintiffs.

They took the product and burned it in a bomb calorimeter, a device that measures the heat produced when foods are burned to completion.  This heat is equivalent to calories, when corrected for the nitrogen in protein.

Here is what the plaintiffs got when they did this.

Wow.  That’s quite a difference.

But David’s has a rebuttal.

…bomb calorimetry is not the right testing method for determining calories in foods containing certain ingredients, such as dietary fiber, certain sweeteners, and, critically for us, fat substitutes like esterified propoxylated glycerol (EPG)…If you burn ingredients like complex carbohydrates, fiber or EPG in a calorimeter, these ingredients would appear to deliver far more calories than the body actually metabolizes.

This took me right to the ingredient list (see above)

PROTEIN SYSTEM: MILK PROTEIN ISOLATE, COLLAGEN, WHEY PROTEIN CONCENTRATE, EGG WHITE. | BINDING SYSTEM: MALTITOL, GLYCERIN, ALLULOSE, TAPIOCA STARCH, SOY LECITHIN. | FAT SYSTEM: MODIFIED PLANT FAT (EPG), COCONUT OIL. | FLAVOR SYSTEM: UNSWEETENED CHOCOLATE, PEANUT FLOUR, NATURAL AND ARTIFICIAL FLAVOR, PEANUT EXTRACT, SALT, DUTCH PROCESS COCOA POWDER, SUCRALOSE, ACESULFAME POTASSIUM.

My first question: Why would anyone want to eat a collection of concocted ingredients like this with hardly any of them recognizable as food?  These bars are quintessential ultra-processed products.

Whatever.  EPG is esterified propoxylated glycerol, a fat substitute. It provides less than one calorie per gram.

Here’s my quote from the New York Times

Dr. Marion Nestle, a professor emerita of nutrition and food studies at N.Y.U., told DealBook that the plaintiffs’ claims were based on counting calories from a “concocted ingredient that’s not absorbed” by the body. The lawsuit was likely to be dismissed, she added.

Not that Nestle was weighing in on the healthfulness of David bars: “Whether anyone should be eating non-absorbable fat is another discussion,” she said.

Precisely.

San Francisco’s city attorney has sued major food companies for marketing ultra-processed foods (UPF) that make people sick.

The lawsuit: COMPLAINT FOR: VIOLATION OF CALIFORNIA UNFAIR COMPETITION LAW AND PUBLIC NUISANCE

The arguments

I. UPF are dangerous: “No reason exists to believe that humans can fully adapt to these products.”

II.  UPF-like tobacco and illegal drugs–are addictive.

• UPF cause compulsive use in the same ways as other addictive substances
• UPF are psychoactive substances
• UPF are reinforcing

III. Defendants designed UPF to be addictive to drive sales and profits.

IV. Defendants have created a public health crisis, especially for children.

V.  Defendants have deliberately targeted kids (harmful dyes, aggressive marketing, disproportionate targeting).

VI.  Defendants actively conceal the dangers of UPF.

VII.  UPF have contributed to a public health crisis in San Francisco.

This one will be fun to watch,

Resources

• Press conference: City attorney announces legal action
• State of California complaint
• San Francisco City Attorney’s Office: Chiu sues largest manufacturers of ultraprocessed foods
• New York Times: San Francisco will sue ultraprocessed food companies
• Civil Eats: MAHA figure touts San Francisco laawsuit against food companies

The Dietary Guidelines Advisory Committee may not think there is much to ultra-processed foods (UPF), but companies making them have just been served with a lawuit.

I learned about this from a tweet (x) from Carlos Monteiro, the Brazilian public health professor who coined the UPF term.

CMonteiro_USP (@Carlos A. Monteiro) posted: A first-of-its-kind lawsuit against 11 UPF industries alleging they engineer their UPF products to be addictive with details on the actions taken to target children including internal memos, meetings & the research conducted to create addictive substances.

The lawsuit, filed by several law firms, is aimed at Big Food: Kraft, Mondelez, Post, Coca-Cola, PepsiCo, General Mills, Nestle, Kellanova, WK Kellogg, Mars, and Conagra.

The suit charges that these firms, through their deliberate marketing, are making people sick.

Due to Defendants’ conduct, Plaintiff regularly, frequently, and chronically ingested their UPF, which caused him to contract Type 2 Diabetes and Non-Alcoholic Fatty Liver Disease Plaintiff is now suffering from these devastating diseases, and will continue to suffer for the rest of his life.

The suit makes interesting reading.

Some examples:

• Big Tobacco companies intentionally designed UPF to hack the physiological structures of our brains.  These formulation strategies were quickly adopted throughout the UPF industry, with the goal of driving consumption, and defendants’ profits, at all costs.
• The same MRI machines used by scientific researchers to study potential cures for addiction are used by UPF companies to engineer their products to be ever more addictive.
• Big Tobacco repurposed marketing strategies designed to sell cigarettes to children and minorities, and aggressively marketed UPF to these groups.
• The UPF industry now spends about $2 billion each year marketing UPF to children.
• UPF increase the risks of disease because they are ultra-processed, not because of how many grams of certain nutrients they contain or how much weight gain they cause. Therefore, even attempts to eat healthfully are undermined by the ultra-processed nature of UPF. One cannot evade the risks caused by UPF simply by selecting UPF with lower calories, fat, salt, sugar, carbohydrates, or other nutrients.
• The UPF industry is well aware of the harms they are causing and has known it for decades. But they continue to inflict massive harm on society in a reckless pursuit of profits.

Can’t wait to see what happens with this one.  Stay tuned.

Resources

Consumer Federation of America: “Ultra-processed Foods: Why They Matter and What to Do About It.”

With government officials reluctant to issue advice on ultra-processed foods (UPFs), Consumer Federation of America aims to raise awareness about research on UPFs, explain the leading theories of how they harm health, and build support for public policies to reduce harms from UPFs in our diet.

The report pushes back on arguments that researchers have not consistently defined UPFs, or that the categorization lacks scientific rigor. In fact, researchers have operationalized the “Nova classification” system behind UPFs in a largely consistent manner, defining foods based on whether they contain ingredients that are “industrial formulations” or “rarely used in home kitchens,” with little serious disagreement about which ingredients should be considered “ultra processed.” Consumers can take CFA’s online quiz to test their knowledge of which ingredients are markers of “ultra processing.”

New research: Trends in Adults’ Intake of Un-processed/Minimally Processed, and Ultra-processed foods at Home and Away from Home in the United States from 2003–2018.  J Nutr 2024, https://doi.org/10.1016/j.tjnut.2024.10.048.  The data show that 50% or more of calories are consumed from UPF at home, away from home, and by pretty much everyone.

New research: Hagerman CJ, Hong AE, Jennings E, Butryn ML. A Pilot Study of a Novel Dietary Intervention Targeting Ultra-Processed Food Intake. Obes Sci Pract. 2024 Dec 8;10(6):e70029. doi: 10.1002/osp4.70029.  Behavioral interventions to reduce UPF intake cut calories by about 600 calories per day.

My post summarizing the three studies demonstrating that diets high in UPF induce intake of an excess of 500, 800, and 1000 calories per day.

By a vote of 6-3, the Supreme Court struck down the Chevron doctrine, which said that the courts were required to uphold regulatory decisions of federal agencies unless Congress said otherwise.  The court majority called the doctrine “fundamentally misguided.”

The decision involves food politics in two ways: (1) the case, Loper Bright Enterprises v. Raimondo, involved fishing, and (2) it has profound implications for food regulations.

(1) The case, as described in SCOTUSblog: “Can fishermen be required to pay for federal monitors? And by the way – should Chevron be overruled?”

Summary: The National Marine Fisheries Service had been requiring “the herring industry to pay for the costs, estimated at $710 per day, associated with carrying observers on board their vessels to collect data about their catches and monitor for overfishing… the agency reimbursed fishermen for the costs of the observers.”  Commercial fishing companies, which do not like having observers on board, challenged the Chevron doctrine.  Koch Industries paid for the challenge, as part of its long-standing deregulatory agenda.

Significance: businesses objecting to agency regulations can sue the agencies and let judges decide.

The courts (politically appointed judges) can overrule the agencies ‘ public health and safety regulations.

(2) Implications for food, nutrition, and public health regulations

The decision is widely interpreted as putting food and nutrition policies at grave risk, particularly those of the FDA.  Here is a preliminary list of what is at stake.

• FDA: food safety, sodium, front-of-package nutrition labeling, the healthy front-of-package label claim, GRAS determinations, dietary supplements, chemical toxins.
• Many of these proposed regulations were already at risk because of disinterest or lack of understanding by agency officials who seem unwilling to argue forcefully for public health measures.  This lack is seen most clearly in a Wall Street Journal interview with Jim Jones, the FDA’s new Deputy Commissioner for Human Foods, who appears uninterested in taking on regulations to reduce production as well as consumption of ultra-processed foods. [this discussion runs from 13:20 to 17:02].
• USDA: meat and poultry safety, Salmonella and E. coli as adulterants, pesticides, herbicides, meat industry consolidation reduction, safe handling instructions, labeling requirements.
• EPA: slaughterhouse pollution, water quality, PFAS
• FTC: dietary supplement health claims

Comment: There are undoubtedly more regulations in play that I haven’t thought of.   Food companies (like businesses in general) do not like being regulated.—too cumbersome, too expensive, too intrusive, too limiting on profits.

Now, a company fviewing any of these rules as inconvenient can take the FDA to court.  Doing so:

• Leaves scientific and public health matters to the personal views of judges.
• Ties up federal agencies in legal challenges.
• Reduces agency resources for inspections and other regulatory work.
• Casts a chill on developing new regulations development.

This decision has been applauded by the business community.

For those of us wanting diets to be healthier and more sustainable, it’s a disaster waiting to happen.

I’ll bet we won’t have to wait long for the first cases to be filed.

Just in time for the Thanksgiving holiday, government agencies are, at long last, taking action on food issues.

Two examples:

I.  The Federal Trade Commission has issued warning letters to trade associations and dietitian-influencers they paid to promote sugar and aspartame on social media.

The letter to AmeriBev detail concerns about posts on Instagram and TikTok by Valerie Agyeman, Nichole Andrews, Leslie Bonci, Keri Gans, Stephanie Grasso, Cara Harbstreet, Andrea Miller, Idrees Mughal, Adam Pecoraro, and Mary Ellen Phipps, each of whom also received an individual warning letter.

The letter to The Canadian Sugar Institute expresses concerns about Instagram posts by Jenn Messina and Lindsay Pleskot, each of whom also received an individual warning letter.

The letter to American Beverage (formerly the American Beverage Association) gives the “or else.”

We strongly urge you to review your social media policy. You should also review the Instagram, TikTok, and other social media posts made by your endorsers as to whether they contain sufficiently clear and conspicuous disclosures of any material connections to the American Beverage Association. To help guide your review, please see the Endorsement Guides3 and the staff publication FTC’s Endorsement Guides: What People Are Asking. Violations of the FTC Act may result in legal action seeking a federal district court injunction or an administrative cease and desist order

This action comes as a result of the investigative report in the Washington Post (it is cited in the letter).  I wrote about the Post article here and also posted the the response from the Academy of Nutrition and Dietetics.

The Post investigative team had this to say about the FTC’s warning letters.

Federal regulators announced warnings against two major food and beverage industry groups and a dozen nutrition influencers Wednesday, as part of a broad action to enforce stricter standards for how companies and social media creators disclose paid advertising.

Comment: Let’s hear it for the power of the press!

II.  New York State Attorney General sues PepsiCo for plastic pollution

New York Attorney General Letitia James today filed a historic and groundbreaking lawsuit against PepsiCo Inc. (PepsiCo) for harming the public and the environment with its single-use plastic packaging. The Office of the Attorney General (OAG) found that single-use plastic produced by PepsiCo contributes significantly to high levels of plastic pollution along the Buffalo River, pollution that is contaminating drinking water and harming wildlife.

…PepsiCo, which is headquartered in New York state, manufactures, produces, and packages at least 85 different beverage brands and 25 snack food brands that predominantly come in single-use plastic containers. Plastic packaging has become a persistent and dangerous form of pollution along the shores of the Buffalo River and in its watershed. In 2022, OAG conducted a survey of all types of waste collected at 13 sites along the Buffalo River and its tributaries and found that PepsiCo’s single-use plastic packaging was the most significant. Of the 1,916 pieces of plastic trash collected with an identifiable brand, over 17 percent were produced by PepsiCo. PepsiCo’s plastic packaging far exceeded any other source of this identifiable plastic waste along the river, and it was three times more abundant than the next highest contributor.

According to the New York Times, PepsiCo:

has said it aims to make all of its packaging “recyclable, compostable, biodegradable or reusable” by 2025. The company also says it wants to cut virgin plastic by 50 percent by 2030, compared with 2020.

The company is now being held accountable for that promise.  What a concept!

Comment: While soda-and-bottled-water companies profess commitments to reducing plastic waste, they fight recycling laws (those that require bottle deposits returnable when the bottle is returned) in every way possible.  Attorney General James is doing something quite remarkable; she is holding PepsiCo accountable for some of the externalized costs of producing sodas, bottled water, and snacks.  I hope this sets a strong precedent.  Kudos!

Sarah Vogel.  The Farmer’s Lawyer: The North Dakota Nine and the Fight to Save the Family Farm.  Bloomsbury, 2021.

This book comes with an impressive collection of blurbs from the likes of Willie Nelson, Dan Barber, Ricardo Salvador, and Fred Kirschenmann, and, fittingly, with one from John Grisham on the cover because much of the book reads like something out of one of his thrillers.

The book tells two stories, both amazing.

The first is how Vogel, as a young lawyer, filed a class-action suit representing small farmers who had been treated terribly by a USDA agency, the Farmers Home Administration.  This agency started during the Great Depression as a way to help small farmers survive from year to year through loans and other measures.

But early in the Reagan years, the agency switched to treating farmers harshly, quickly foreclosing on unrepaid loans, garnishing bank funds, and forcing the farmers off their land—in violation of the agency’s own rules.  Most of the book is about how Vogel took on these cases, pursued them carefully, and, incredibly, won.

The second story is about the personal cost of this case to Vogel, who worked without pay during the years this litigation was in the works.  Without a salary, she couldn’t keep up her own mortgages, lost two houses, and lived hand to mouth.

It’s hard to believe anyone would take on a case like this at such risk, but the book is also about her dedication to a cause she deemed too important to abandon.

The book is packed with legal details but so well written and is so compelling that I could hardly put it down.

And the good guys won!

For that alone, the book is inspirational.  And I love the way she ends it.

The North Dakota Nine had small to midde-sized farms.  In the 1980s, their lives were very difficult.  In today’s economy, they wouldn’t have a prayer.  But farmers like them are exactly the kind of farmers we need today: farmers who will love their land, grow crops as well as communities, plant trees, care for their animals, and leave the earth better than when they found it.  In the big picture, farmers like them can help solve global warming, revitalize the countryside, and provide abundant, healthy food…We can save farmers, protect the environment, solve the hunge crisis, and rebuild rural and urban economies from the ground up…if we act soon.

Yes!

Jerry Hagstrom did a review of this book a couple of weeks ago on his Hagstrom Report.  Here’s his list of resources:

 Sarah Vogel
 — “The Farmer’s Lawyer”
 Prairie Public Newsroom – Sarah Vogel: “The Farmer’s Lawyer”
 – Author Sarah Vogel reads from “The Farmer’s Lawyer”
 AgWeek – Thankful for new FFA chapter, affordable food, ag lawyer Sarah Vogel
 Capital Journal – Attorney worked to stop foreclosures during ’80s farm crisis
 The Christian Science Monitor – ‘The Farmer’s Lawyer’ tells a David and Goliath legal story