Public interest lawyers and industry representatives debated the merits of using litigation to address obesity at a December 2010 symposium hosted by George Mason University, and edited transcripts have recently been made available in the Journal of Law, Economics & Policy. Among the speakers was John Banzhaf whose law students at George Washington University have long focused on “public interest litigation,” including lawsuits and regulatory initiatives against the interests of cigarette manufacturers. Banzhaf claims that a reporter’s question in 2002 about using litigation as a weapon in other arenas, such as concerns over obesity, led to the “modern fat litigation movement.” He contends that litigation and the courts are a legitimate tool to effect policy change, arguing that until corporations and their customers are forced to pay the full costs of their products, changes will not be made. Banzhaf also discussed the 10 lawsuits or threats of litigation that convinced…
Category Archives Legal Literature
Jennifer Pomeranz and Kelly Brownell, who are with the Yale Rudd Center for Food Policy & Obesity, have authored an article titled “Advancing Public Health Obesity Policy Through State Attorneys General.” Referring to the role played by state attorneys general (AGs) in public health policy on tobacco, the authors contend that they “can be leaders in formulating and effectuating obesity and food policy solutions.” The article also takes note of recent actions state AGs have taken regarding purported misleading labeling of food and beverage products. Among other matters, the authors suggest that, using their parens patriae authority, state AGs “may seek declaratory relief or recover costs or damages incurred by behavior that threatens the health, safety, or welfare of the state’s citizenry [and] can redress wrongs when other remedies are lacking and can act to protect public interests in areas where other parties cannot.” They also suggest that the authority to…
Shook, Hardy & Bacon Global Product Liability Partner Holly Pauling Smith and Agribusiness & Food Safety Co-Chair Madeleine McDonough have co-authored this chapter on the consumer-fraud class actions to which plaintiffs’ lawyers have resorted given their inability to persuade courts to certify personal-injury mass torts. The chapter, which focuses on recent cases involving health-related claims or omissions for food and beverage products, appears in an international reference on class and group actions. Smith and McDonough have also contributed a chapter discussing how the class-action procedure functions in the United States.
A looseleaf reference book titled Products Liability: Design and Manufacturing Defects, 2d has been updated with sections considering legal issues relating to genetically modified (GM) foods. The section on “design defects in GM organisms used in food production” discusses the extensive regulatory review to which these substances are subject and notes that no known injury has yet been linked to the use of GM organisms. The section on “failure to warn of idiosyncratic reaction to GM foods” cites cases involving plaintiffs with allergies or unusual susceptibilities involving other types of products. The author adds the following observation: “The same technology that is used to create novel food will provide the tools for preventing risk. Properly managed, novel food can reduce the net incidence of food allergies, through creation of hypoallergenic varieties of common crops. This standard for ‘design’ of food may one day give rise to ‘design defect’ liability for failure…
One of the editors of this collection of essays about how to protect consumers when food and products freely cross international borders is Adam Finkel, a former senior enforcement official at the Occupational Safety and Health Administration. The book is “a direct outgrowth” of a 2009 Penn Law School conference that brought together leading scholars and analysts to discuss import safety. Among the authors are professors in law, economics, political science, criminology, engineering, psychology, risk assessment, and business. The overall tone of the work is to find innovative ways to ensure product safety with a combination of effective “public action and private inspections, public and private standard-setting, and a degree of dependence on consumers to take some responsibility for their own safety.” The essays are grouped under four headings: “Perspectives on the Problem,” “International Trade Institutions,” “Toward Smarter Regulation,” and “Leveraging the Private Sectors.” The authors discuss the massive scale…
Law Professor Eloisa Rodriguez-Dod discusses a number of ways that governments in the United States and around the world are attempting to address the growing incidence of obesity among their populations. This article provides information about municipal trans fat bans and menu-labeling ordinances, China’s restrictions on the morbidly obese adopting children, Spain’s voluntary food advertising regulations, and Japan’s workplace penalties for employers whose workers’ waist measurements do not shrink to accepted levels. The author distinguishes smoking cigarettes from overeating by referring to the former as an addiction and the latter as personal choice. She suggests that governments can and should regulate personal choice “to protect the health and welfare of its citizens.” While acknowledging that no “magic bullet” has yet been found to prevent overweight and obesity and that measures already in place are too new to assess their effectiveness, the author concludes, “whatever can fairly be done should be done…
Authored by a Cornell Law School visiting scholar with a Ph.D. in economics, this legal commentary suggests that government critics err when they call efforts to address obesity an infringement on their freedom of choice. According to the article, this objection has “no meaning in the context of a modern economy” where “we are being manipulated into eating unhealthfully.” To illustrate, the author says that those opposing government regulation in this area are saying, in essence, “Don’t let Big Brother tell me what to eat. I do what the Pillsbury Dough Boy tells me.” The author argues that governmental initiatives aimed at altering our eating habits do not violate our freedom, but rather constitute “an important way to push back against all of the ways in which people are manipulated and harmed by industrial food production.” Because government is already “inextricably involved in deciding what is grown and sold, how…
Authored by the director of legal initiatives at the Rudd Center for Food Policy and Obesity at Yale University, this article purports to demonstrate that food and beverage advertising to children is deceptive and misleading speech and therefore not protected under the First Amendment. According to the author, because this speech is not protected, the Federal Trade Commission (FTC) has the authority to restrict the industry’s marketing to youth. The article discusses scientific studies about the effects of advertising on children and analyzes court opinions addressing First Amendment and commercial speech issues. The author then contends, “If children under a certain age cannot understand that the communication is intended to persuade them, then this is a deceptive and misleading way to propose a commercial transaction to them. Because the marketing messages cannot be presented in a way in which they could understand the intent of advertising due to their limited cognitive…
The Public Health Advocacy Institute (PHAI) recently posted a case study that discusses the process which led to the adoption of a restaurant calorie disclosure law in New York City. Funded by the Robert Wood Johnson Foundation’s Public Health Practice & Policy Solutions, the case study focuses on threats of litigation that arose throughout the law’s development and adoption, noting that public health officials considered this possibility early in the process and ultimately prevailed by adopting a broad-based law that survived legal challenge. The article relies on media coverage, legislative materials, scholarly articles, legal filings, and judicial opinions to recommend how other local authorities can prepare to support similar initiatives. While “interviews with opponents were not conducted,” the author did consult in-depth with the law’s proponents in preparing the analysis. PHAI is headed by anti-tobacco attorney and law professor Richard Daynard. It has conducted a number of conferences for lawyers,…
Shook, Hardy & Bacon Of Counsel Jim Andreasen has co-authored an article providing an update on the American National Standards Institute’s (ANSI’s) draft national standard for sustainable agriculture. The article appears in the January 2010 issue of the American Bar Association’s (ABA’s) Agricultural Management Committee Newsletter. This committee is part of the ABA’s Section of Environment, Energy, and Resources. The article outlines the draft standard’s development to date and the potential impact it could have once finalized. According to the article, the draft “as initially proposed would promote a non-GMO [genetically modified organism], organic, and fair trade (i.e., fair labor) standard for agriculture that exceeds nearly all existing organic and nonorganic practices in U.S. agriculture.” The draft has undergone a number of changes, including a narrowing of its scope, since its introduction, and the committee working to develop it has expanded to include some industry interests. The article also discusses…
