Consumer Law & Policy Blog

A plague of defense lawyers

by Steve Gardner

Well, I see that yet another law firm has announced its hope of attracting new food companies as clients. 

It tickles me to see how many large defense firms are getting into the business of offering to defend companies from deceptive marketing practices relating to food and nutrition.

Some food industry front groups like to whine about all the food lawsuits that are being brought by consumer lawyers. For example, there’s the [irony alert] “Center for Consumer Freedom,” a long-time advocate for smoking, drinking, and food fraud, which claims that its purpose is “promoting personal responsibility and protecting consumer choices.”

And how does the Center go about “promoting personal responsibility and protecting consumer choices”? By spending almost 80% of its income (check out its IRS filing) to hire the private PR firm Berman and Company, whose president Rick Berman is the same Rick Berman who is the Executive Director of the Center. 

One way the Berman money tree sought to fulfill its claimed purpose was by issuing a vitriolic screed against “a growing cabal of activists [which] include self-anointed “food police,” health campaigners, trial lawyers, personal-finance do-gooders, animal-rights misanthropes, and meddling bureaucrats.”

This extremely well-compensated Executive Director of an avowedly non-profit organization is not alone in shilling for food companies. Take, for example, the recent remarks by a law professor (and former white-shod defense lawyer) who commented that a California bill that would require companies to let consumers know if their products contained GMOs would be a “‘boondoggle’ for litigation attorneys, because it authorizes citizen lawsuits against alleged violators.”

Of course, this law professor avoids saying that the best way to avoid this speculated “boondoggle” is simple.

Companies could simply comply with the law.

It’s pretty easy for companies to comply with consumer protection laws. They don’t need lawyer to help them do that. What they do need lawyers for is to help them avoid responsibility for their illegal, deceptive, and abusive practices.

Lots of highly paid defense lawyers and, of course, people like the perhaps even-more highly paid Rick Berman. 

Now, it’s true that the number of lawsuits involving deceptive food marketing claims has grown significantly since I became Litigation Director for CSPI eight years ago (there were only a couple of them when I started) to the point that there are dozens of them today.

And it’s also true that an increasing number of plaintiff lawyers are turning their attention to this type of much-needed consumer protection litigation.

But it’s also true that if you counted the number of lawyers in the plaintiff firms involved in food marketing lawsuits, that number would be crushed by the number of lawyers in the defense firms who defend the food industry. Take, for example, my friend (frenemy?) Russell Jackson, who writes an honest (but pro-company) blog that covers food marketing litigation.

Russell’s firm Skadden Arps has over 1800 lawyers, which alone is perhaps 20 times as many as the combined number of lawyers who advocate for consumers in this area.

So I urge those on the side of the food companies to clean up their dialectic and instead focus on cleaning up their illegal practices.

The best way to avoid getting sued for violating consumer protection laws is simply not to violate them.

C’mon, Big Food, step up and put those plaintiff lawyers out of business!

I felt a twinge of disloyalty to other consumer protection lawyers when I typed that last sentence, until I realized that the chances of that happening are only slightly greater than the chances of my winning the Texas lottery.

Wait, let me retract that because there is a chance (albeit very slight) that I could win the Texas lottery.

 

 

FDA Proposes to Limit Use of Antibiotics in Animal Feed to Protect Human Health

 Antibiotics are regularly used in animal feed to fatten-up animals quickly, lowering producer's costs and increasing profits. But, according to this article in the Des Moines Register, "[d]octors and public health experts have long worried that there's a human price to using drugs this way": that the prevalence of antibiotics in animals, which ends up in food ingested by humans, is creating antibiotic-resistant bacteria that threaten human health. So, the Food and Drug Administration has issued a draft Guidance, entitled "The Judicious Use of Medically Important Antimicrobial Drugs in Food-Producing Animals," which proposes to "limit[] medically important antimicrobial drugs to uses in food-producing animals that are considered necessary for assuring animal health." As the Des Moines Register article explains, an earlier ban in Denmark seems to have had the desired effect:

Denmark . . . banned the growth-promotion use of antibiotics in the mid-1990s, cutting use of the drugs by 40 percent. More important, there's evidence that the ban reduced the amount of dangerous drug-resistant bacteria to which Danish consumers were being exposed. One type of bacteria found in hogs, campylobacter, is far less likely now to withstand a group of drugs known as macrolides than it was before the ban. Less than 20 percent of the bacteria was drug-resistant in 2006.

FDA's Principal Deputy Commissioner Josh Sharstein explained the FDA's view in his July 14, 2010 testimony to the Subcommittee on Health of the House Committee on Energy and Commerce.

Truth 1, vitaminwater 0

by Steve Gardner

The Center for Science in the Public Interest, working with private plaintiff firms Reese Richman, LLP  and Whatley Drake & Kallas, were pleased to get a very well-considered opinion in our lawsuit against Coke involving vitaminwater (Coke  uses the lower case, as does the Court, so I grudgingly do as well).

I say that the opinion is "well-considered" because the Court wrote thoughtfully and well on many nuances of the law involving FDA regulation of food labels and the interplay with state consumer protection law.

Of course, it's nice that the Court roundly rejected almost all of Coke's arguments.

In short, our lawsuit says that it's deceptive to call a sugar-water drink "vitamin"-anything and the opinion essentially agreed that this states a cause of action.

                       

 

Ronald McDonald--Creepy Stranger on the Playground?

by Steve Gardner

In June, my organization, the Center for Science in the Public Interest, gave notice to McDonald's that, unless it stopped predating on small children by offering them toys to get them to pester their parents for a Happy Meal, we would bring a state consumer protection lawsuit based on the developmental fact that young kids just don’t understand that an ad or other marketing tool is anything other than helpful advice. 

McDonald's, on the other hand, is all grown up and it knows precisely what it’s doing. Roy Bergold, who was McDonald's advertising head for 29 years, recently bragged:

“Sure, we marketed to kids. As Ray Kroc said, if you had $1 to spend on marketing, spend it on kids, because they bring mom and dad. . . . Parents should totally control their kids. Yeah, right. Research says that seven-year-olds and younger accept what we say in advertising as the truth. Heck, three-year-olds can identify brands using just their corporate logos. According to a survey commissioned by the Center for a New American Dream back in 2002, the average kid asks his parent for something nine times before the parent gives in. . . . What’s a mother to do under this assault?” (My emphasis.)

Wyoming Food Safety, Security, and Sources Conference

Food Safety, Security and Sources, A Recipe for Tough Times is the theme for the 9th annual Consumer Issues Conference at the University of Wyoming in Laramie, Wyoming, to be held September 24th and 25th. An exciting program is being planned for this year’s conference, and will include subthemes of “Food Sustainability and Security Practices,” “Food Safety v. Food Freedom,” and “Food Fight: Nutrition and Health Choices.” Speakers will include Donna Byrne, Food Law Professor from William Mitchell Law School; Sandra Eskin, a Food Safety Policy Attorney for the Produce Safety Project, an initiative of the Pew Charitable Trusts at Georgetown University; Devin Koontz of the Federal Food and Drug Administration’s Denver District Office; and my co-author Dee Pridgen, Carl M. Williams Professor of Law and Social Responsibility and Associate Dean, UW College of Law, a noted author on consumer law issues. 

Menu Labeling--From a New York City Experiment to Part of the Health Care Reform Bill

by Deepak Gupta

In today's mail, I received my copy of the August issue of ABA Journal magazine, which has an article on the mandatory disclosure of calorie counts on fast-food menus. We've blogged several times here about the legal battle over the New York's first-in-the-nation menu labeling rule (here, here, and here), in which I represented Congressman Henry Waxman, former FDA Commissioner David Kessler, the American Medical Association, and a bunch of other health groups and professors of nutrition, medicine, and public health. The litigation involved constitutional challenges by the fast-food industry based on preemption and the First Amendment. 

The ABA article quotes my modest defense of the policy against charges of paternalism -- it's just information, and if you want to go on eating high-calorie stuff you're free to do so.  It also quotes industry lawyer Kent Yalowitz, who asserts that the rule is "untethered to any science whatsoever."  But as Ezra Klein notes in a recent Washington Post print column (and on his blog), preliminary data from Los Angeles shows that calorie labeling on the menu may have a dramatic impact. Kent conveniently forgets that New York City produced strong scientific support in response to the industry's lawsuit. And the Center for Science in the Public Interest, whose Margo Wootan has been deftly leading the legislative advocacy on menu labeling nationwide, has posted a wealth of additional data.  (In any event, as Richard Posner points out, the obvious impossibility of proving the net effects of the policy in advance of its enactment does not justify rejecting it.)

The disclosure of calories on chain restaurant menus is no longer just a question of local policy; it is now--due in no small part to Margo's efforts--a part of the pending health care reform legislation.  If health care passes, so does menu labeling!  What's remarkable to me is how quickly the policy has progressed in just a couple years -- from a mere proposal among public health advocates, to a controversial regulation in a single city, to a measure that's been adopted by local governments nationwide, to a component of one of the most important pieces of federal legislation in a generation. Even the chain restaurants are supporting the legislation (though of course they'd like it cover non-chains too and are motivated as much by a desire to preempt local variation as anything else). As a Washington Post editorial said over the weekend, it couldn't come soon enough.

Denny's: Public Health Enemy # 1

by Steve Gardner

The Center for Science in the Public Interest filed suit today in the Superior Court of New Jersey in Middlesex County, seeking to compel Denny's to disclose on menus the amount of sodium in each of its meals and to place a notice on its menus warning about high sodium levels. CSPI is working with the New Jersey firms of Galex Wolf, LLC and Williams Cuker Berezofsky.

The great majority of Denny's meals is dangerously high in sodium, putting its customers at greater risk of high blood pressure, heart attack and stroke.

Most Americans should consume no more than 1,500 milligrams of sodium per day, according to the Centers for Disease Control and Prevention. But at Denny's, the great majority of its meals contain more, and in some cases, several times more. Some meals at Denny's provide more than 4,000 or 5,000 mg of sodium—more than most adults should consume in three days. Diets high in sodium are a major cause of high blood pressure, which in turn is a major cause of heart disease and stroke, the first- and third-leading causes of death in the United States.

As my boss (CSPI’s co-founder and Executive Director) Mike Jacobson put it, "Denny's is slowly sickening its customers. For those Americans who should be most careful about limiting their sodium, such as people middle-aged and older, African-Americans, or people with existing high blood pressure, it's dangerous to eat at Denny's. Denny's customers deserve to be warned about the considerable health risk posed by many of these meals."

The plaintiff, Nick DeBenedetto, is a 48-year-old resident of Tinton Falls, NJ, who has eaten for many years at Denny’s restaurants in East Brunswick and Brick, NJ. Nick takes a prescription medication to control his high blood pressure and at home does not cook with salt or use the salt shaker. Some of his favorite Denny's items, such as Moons Over My Hammy or the Super Bird turkey sandwich, contain far more than 1,500 mg of sodium—even without soup, salad, fried onion rings, or other side dishes.

"I was astonished—I mean, literally floored—to find that these simple sandwiches have more salt than someone in my condition should have in a whole day," Nick says. "It's as if Denny's is stacking the deck against people like me. I never would have selected those items had I known."

Texas Legislature Considers Ban on Transfats in Restaurant Foods

State and local governments have been take the legislative lead in the fight against obesity and its pernicious health consequences. We've reported, for instance, on New York City's ordinance requiring fast-food restaurants to disclose the calorie content of their foods. Now, the Texas legislature is considering legislation to ban restaurants from selling food containing transfats. Go here to read the bill and committee reports and analyses.

Former FDA Commissioner David Kessler is a Dumpster Diver!

Check out this great Washington Post article explaining why former FDA commissioner David Kessler hangs around dumpsters at fast-food joints. Kessler was trying to figure out why many of us are junk-food addicts. Here's a teaser:

The high-octane career path of David A. Kessler, the Harvard-trained doctor, lawyer, medical school dean and former commissioner of the Food and Drug Administration had come to this: nocturnal dumpster diving. Sometimes, he would just reach in. Other times, he would climb in.

It took many of these forays until Kessler emerged with his prize: ingredient labels affixed to empty cardboard boxes that spelled out the fats, salt and sugar used to make the Southwestern Eggrolls, Boneless Shanghai Wings and other dishes served by the nation's second-largest restaurant chain.

Signs of life at the FTC

by Steve Gardner

Yesterday, the FTC showed significant signs of life, announcing a consent decree against the Kellogg Company for claiming that it had scientific proof that its Frosted Mini-Wheats cereal improved children's attentiveness by 20 percent (!!!).

In terms of sheer gall in marketing food for kids, Kellogg's efforts to promote this sugary cereal as an alternative to ADD medication is surpassed recently only by Coke's claim (in Australia) that  Coca-Cola cannot contribute to weight gain, obesity and tooth decay (!!!!!). The Australian government shut down those claims.

In the FTC action, the most notable thing (aside from Kellogg's aforementioned gall) was this statement by the newly appointed Chair of the FTC, Jon Leibowitz:

We tell consumers that they should deal with trusted national brands. So it’s especially important that America’s leading companies are more ‘attentive’ to the truthfulness of their ads and don’t exaggerate the results of tests or research. In the future, the Commission will certainly be more attentive to national advertisers.

After years of not-so-benign neglect of consumers, it's good to see that the Commission will focus more attention on the companies who are setting the standards for deceptive advertising, rather than just taking action against smaller companies.