Posts By Shook, Hardy & Bacon L.L.P.

Energy intake from the consumption of soft drinks in the United States increased some 135 percent between 1977 and 2001, according to a new study published in the October issue of the American Journal of Preventive Health. Data from the study were derived from three food surveys of more than 73,000 Americans that included age groups ranging from 2-year-olds to senior citizens. The study found that daily calories from soft drinks and fruit drinks nearly tripled between 1977 and 2001, rising from 2.8 percent to 7 percent of the total caloric intake in the daily diet. Overall, this amounted to a 278-calorie average daily increase. Young adults aged 19-39 reportedly drank the most soft drinks, boosting consumption from about 4 to almost 10 percent. Milk consumption over the same period, however, dropped. Overall, Americans derived 38 percent less of their daily calories from milk. The authors, researchers from the University of…

According to the president for the Physicians Committee for Responsible Medicine (PCRM), a nonprofit vegan group founded in 1985, recent, unpublicized studies have suggested that “cheese, chocolate, sugar, and meat all spark the release of opiate-like substances that trigger the brain’s pleasure center and seduce us into eating them again and again.” Neal Bernard also discusses research showing (i) “participants moving to a vegetarian diet have a harder time giving up cheese than almost any other food”; (ii) “the principal protein in cheese, casein, breaks apart during digestion to produce abundant amounts of morphine-like compounds called casomorphins”; and (iii) naxolone, an opiate blocker used to treat morphine and heroin overdoses, reduces the desire for chocolate, sugar, cheese, and meat suggesting that their attraction does indeed come from druglike effects caused within the brain.” Bernard asserts that “just as Big Tobacco intentionally manipulated the addictive qualities of its products, Big Food…

This article discusses obesity-related litigation that has been instituted since the U.S. surgeon general declared in December 2001 that obesity and overweight are responsible for some 300,000 deaths annually. Tobacco-control activists John Banzhaf and Richard Daynard, who are quoted in the article, apparently did not think much of such litigation when the idea first surfaced. They now expect, however, that media attention will give rise to increasing attorney interest and the filing of other cases. Plaintiffs’ lawyer John Coale, described as “a veteran of tobacco and gun litigation,” evidently believes that the food industry’s Achilles’ heel is the targeting of children through Saturday morning television commercials, contracts to serve fast food and soft drinks in schools, and promotional initiatives involving toys. Tort reform advocate and Shook Partner Victor Schwartz reportedly predicts that it will take about five years of discovery in obesity-related litigation for plaintiffs’ lawyers to find “documents that, if…

Senator Richard Durbin (D-Ill.) has introduced a bill (S. 3095) that would amend the federal Food, Drug, and Cosmetic Act to “require premarket consultation and approval with respect to genetically engineered foods.” The Genetically Engineered Foods Act, which has been referred to the Committee on Agriculture, Nutrition, and Forestry, defines genetic engineering as “a transformation event,” i.e., one that involves “the introduction into an organism of genetic material that has been manipulated in vitro,” “to derive food from a plant or animal or to produce an animal.” Any producer of a genetically engineered food would be required to obtain FDA approval before introducing such food into interstate commerce. Such approval would require a determination that the food is (i) safe, (ii) safe under specified conditions of use, or (iii) not safe because the food “contains genes that confer antibiotic resistance,” “contains an allergen,” or “presents 1 or more other safety…

Since May 2002 California plaintiffs have reportedly brought enforcement actions against a number of food manufacturers and fast food restaurants claiming that because carcinogens or reproductive toxicants are contained in their products, they are required to provide public warnings under the Safe Drinking Water and Toxic Enforcement Act. This law, also known as Proposition 65 (Prop.65), was approved by state voters in November 1986. It requires the governor to publish a list of chemicals known to the state to cause cancer, birth defects or other reproductive harms. Companies selling products in California must provide warnings if such substances are contained in their products. Private citizens are empowered under the Act to sue alleged violators to enjoin future violations and obtain civil penalties for past violations. Plaintiffs in American Environmental Safety Institute v. Mars, Inc., No. BC273433 (Cal. Super. Ct., Los Angeles Cty., filed May 8, 2002), allege that chocolate contains the…

New York attorney Samuel Hirsch has filed lawsuits against fast food companies on behalf of two classes of plaintiffs who are allegedly obese and have developed diabetes, coronary heart disease, high blood pressure, elevated cholesterol intake, and other adverse health effects from consuming defendants’ products. Barber v. McDonald’s Corp., No. 23145/2002 (N.Y., Super. Ct., filed July 24, 2002); Pelman v. McDonald’s Corp., No. 24809/2002 (N.Y. Super. Ct., filed August 22, 2002). The cases involve a class of adult plaintiffs and a class of children. The complaints are being brought on theories of (i) unfair and deceptive practices, (ii) failure to warn, and (iii) negligence in selling products high in fat, salt, sugar, and cholesterol, and in marketing to children, in marketing addictive products, and in enticing plaintiffs to consume larger portions in “value meals” and “meal combos.” According to news sources, the named adult plaintiff, Caesar Barber, 56, did not realize that consumption…

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