The Manhattan Institute, a conservative think tank based in Washington, D.C., has published its annual survey of plaintiffs’ bar activities. Focusing on class action and mass tort litigation, the survey addresses consumer fraud allegations, labor and employment claims, and securities actions, among others, reporting that 29 percent of corporate counsel expect data privacy lawsuits “to grow more than any other class-action line of business.” Issue 592
Category Archives Legal Literature
A group of public health policy professionals has proposed a multidisciplinary approach to public health law, arguing that public health professionals should receive training in a variety of disciplines to "promote full recognition and [the] optimal role of law in public health." Scott Burris et al., "A Transdisciplinary Approach to Public Health Law: The Emerging Practice of Legal Epidemiology," Annual Review of Public Health, November 30, 2015. The article describes a history of the overlap between public health policy and legal expertise, and then proposes a more inclusive model of training that "adds scientific practices to the lawyerly functions of normative and doctrinal research, counseling, and representation." Issue 588
In a recent journal article, a Babson College marketing law professor discusses legal disputes over the labeling of food as “natural,” noting drawbacks of using courts as public policy developers on the issue. Ross D. Petty, “‘Natural’ Claims in Food Advertising: Policy Implications of Filling the Regulatory Void with Consumer Class Action Lawsuits,” Journal of Public Policy & Marketing, Spring 2015. Petty provides a history of the debate and litigation over use of the terms “natural” and “unprocessed” on food labels, beginning with U.S. Federal Trade Commission (FTC) actions against Sugar in The Raw® and Hawaiian Punch® in the 1970s. The article also details efforts by the U.S. Food and Drug Administration (FDA) and Department of Agriculture (USDA) to define “natural,” “synthetic,” “healthy” and “good source.” Petty highlights industry self-regulation, such as the processes established by the National Advertising Division of the Council of Better Business Bureaus, as a venue for…
Researchers from the Johns Hopkins Bloomberg School of Public Health have authored an overview of litigation and governmental actions related to health claims on food and beverages marketed to children. Lainie Rutkow, et al., “Legal Action Against Health Claims on Foods and Beverages Marketed to Youth,” American Journal of Public Health, March 2015. By identifying 115 instances of legal action—including consumer class actions and governmental warnings—the authors review “lessons learned for policymakers, practitioners, and other stakeholders seeking to limit the untruthful or misleading marketing of foods and beverages to children.” Those looking to challenge health claims “should first determine whether scientific evidence supports the claim,” the researchers said. In addition, plaintiffs should be selected carefully, they recommend, noting that they “may prefer, if possible, to bring a lawsuit in a state such as California, which has a well-developed body of law about deceptive and misleading advertising and marketing.” In addition,…
American Law Reports (A.L.R.) has published an annotation titled “Liability of Food Manufacturer Based on Statement in Product Labeling or Promotion Relating to, or Inconsistent with Presence of, Trans Fat in Product.” 92 A.L.R.6th 141 (2014). It “collects and analyzes all the federal and state cases discussing the liability, when not precluded by federal preemption, of a food manufacturer based on an allegedly untrue or misleading statement, in the labeling or promotion of a food product, relating to the presence or absence of trans fat in the product or a statement that, while not referring itself to trans fat, is allegedly inconsistent with the presence of trans fat in the product.” Most of the nearly 30 cases were filed in federal district courts in the Ninth Circuit. Issue 517
Associate Law Professor Diana Winters argues in “The Magical Thinking of Food Labeling: The NLEA as a Failed Statute” that those parts of the Nutrition Labeling and Education Act of 1990 (NLEA) regulating “health claims” and “nutrient content claims” have been ineffective at addressing obesity and should be repealed. While Winters acknowledges that leaving this aspect of food labeling to the states will result in an increase in litigation, because the current litigation environment is dominated by time-consuming, complex arguments over non-substantive issues, such as preemption and the primary jurisdiction doctrine, the best way to improve front-of-package labeling is to allow state courts to focus on the substance of deceptive claims. Among other matters, the author notes that attitudes about food consumption “vary wildly from state to state,” thus justifying differing state and local laws in the field of food labeling. She also observes, “By crafting laws tailored to targeted…
Tel Aviv University Senior Law Lecturer Avihay Dorfman explores the theoretical underpinnings of assumption of the risk as a tort defense and illustrates its nuances in the context of obesity. “Assumption of the Risk, After All,” Theoretical Inquiries in Law (forthcoming 2013). Observing that any hostility toward the doctrine stems from the perception that it has a libertarian basis, the author develops a liberal egalitarian account, “arguing that the fact of making a choice (to assume a given risk) is not sufficient to justify the shifting of responsibility from the negligent injurer to the choosing victim. For it is also necessary that the latter must be acting under conditions that render this shifting fair.” In the case of an obese individual residing in a “food desert” where “junk food” is the only food readily available at an affordable price, Dorfman contends that it would not be fair to attribute responsibility for…
Public Health Advocacy Institute (PHAI) Staff Attorney Cara Wilking and President Richard Daynard, a self-described “strategic litigation expert with a focus on combating the epidemics caused by tobacco and obesity,” have co-authored an article titled “Beyond Cheeseburgers: The Impact of Commonsense Consumption Acts on Future Obesity-Related Lawsuits.” 68 Food & Drug Law Journal 229 (2013). Beginning with the premise that “[a]ffirmative litigation is an important tool in the public health toolkit to recover healthcare costs stemming from harmful commercial practices and to prevent future health harms,” they provide a detailed analysis of the “Common Sense Consumption” acts (CCAs) enacted in 25 states to shield the food industry from civil liability for obesity-related harms allegedly caused by the long-term consumption of food. According to the authors, the National Restaurant Association took a leadership role in getting the measures before state legislatures. Noting that CCAs “have yet to be meaningfully tested in the…
The University of San Francisco Law Review has published a student comment titled “Snake Oil in Your Pomegranate Juice: Food Health Claims and the FTC,” that examines existing statutes and regulatory authorities enabling the Federal Trade Commission (FTC) and Food and Drug Administration (FDA) to regulate the burgeoning “functional food” market. 47 U.S.F.L. Rev. 783. The author focuses on litigation involving health claims made by the manufacturers of POM Wonderful® pomegranate juice products, noting that the industry has been watching it closely to learn what standards will be applied to the science supporting health-related claims thus allowing companies to make such claims. According to the author, the case illustrates why the current regulatory framework is inadequate. She concludes, “If case-by-case litigation continues to define the parameters of permissible claims, consumers will continue to be misled, and all brands will pay the price.”
University of Illinois Associate Professor of Agricultural Law A. Bryan Endres has co-authored a recently published update of the law suggesting that federal government action on a variety of agriculture- and food-related topics, moribund in the months preceding the 2012 presidential election, could increase during the next few years in light of increasing public interest in food production and safety issues. “United States Food Law Update: Shrouded by Election-Year Politics, State Initiatives and Private Lawsuits Fill in the Gaps Created by Congressional and Agency Ossification,” Journal of Food Law & Policy, Spring 2013. Funded in part by the U.S. Department of Agriculture National Institute of Food and Agriculture, the article covers a range of topics including (i) consumer fraud suits challenging the “all natural” promotions for processed food products, (ii) efforts by animal rights organizations to require the humane handling of food animals, (iii) country-of-origin and genetic modification labeling initiatives,…
