The “Food Wars” in the Courts
Food Safety
The “Food Wars” and the Courts
Concerns over ultra-processed foods (UPFs) and their responsibility for rising rates of chronic disease and obesity have been highlighted in the medical literature and in the popular press.
Published
April 4, 2025
Author
James Lytle
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In the medical literature as well as in the popular media, there has been a growing concern about ultra-processed food (UPFs), and their role in chronic disease and obesity. In the search for effective responses to the adverse effects of “Big Food”, and its products, actions taken to curb “Big Tobacco”, decades ago have been compared. Echoing successful anti-tobacco initiatives, proposals to curb UPF consumption include stronger labeling, increased taxes, regulation of junk food marketing to children, and aggressive public awareness campaigns.
The success of the anti-tobacco effort has, however, often been attributed to litigation by private plaintiffs and states against the tobacco companies, culminating in a master settlement agreement in 1998 between the cigarette manufacturers and the attorneys general of 46 states, five U.S. territories, and the District of Columbia. The settlement compelled the tobacco companies to pay billions of dollars to the states to compensate them for Medicaid costs incurred by smokers, placed limits on tobacco advertising, and funded public information efforts.
Litigation against the manufacturers of UPFs has not played as large a role in combatting the impact of these foods on the public’s health–at least not yet. Recent filings against the food sector indicate that lawsuits may become an important part of the arsenal to combat UPFs. Two recent cases reflect alternative approaches to holding the food industry accountable.
Bryce Martinez v. Kraft Heinz Company, Inc. et al., filed Dec. 10, 2024 (subsequently removed to federal court, Eastern District of Pennsylvania): Bryce Martinez was diagnosed as a 16-year-old with Type 2 Diabetes and Non-Alcoholic Fatty Liver Disease, conditions that the complaint asserts had been “largely confined to elderly alcoholics.” Eleven major manufacturers of ultra-processed food products were named in the litigation, including Kraft Heinz, Coca-Cola, Pepsico, General Mills, Nestle, Kellogg and Mars. The complaint details how UPFs dominate the American diet, as well as the evidence that UPF consumption can increase the risk of obesity, diabetes and other chronic illnesses. It contends that UPFs have been intentionally designed and marketed to be “hyper palatable” or addictive to consumers–just like cigarettes.
The similarities between UPFs and cigarettes are not coincidental: As the complaint describes, during the latter half of the 20th Century, Big Tobacco companies like RJ Reynolds and Philip Morris acquired large food manufacturers, such as Nabisco, Del Monte and Kraft. They employed their tobacco experience to maximize the addictiveness of their food portfolios and utilized their tobacco marketing strategies to target children and other vulnerable populations.
Internal documents referenced in the complaint show that Big Food knew what it was doing. Six months after the Tobacco Master Settlement, the CEOs from major food companies gathered to discuss potential legal threats. The complaint alleges that the UPF defendants:
were negligent in not exercising reasonable care in the manufacturing of their products and failed to warn consumers of their risks;
- breached their warranties of safety and fitness and misrepresented the characteristics of UPFs;
- fraudulently concealed the products’ defects;
- violated unfair trade practices and consumer protection statutes; and
- unjustly enriched themselves through the sales of these foods. The complaint alleges that the UPF defendants:
- were negligent in not exercising reasonable care in the manufacturing of their products and failed to warn consumers of their risks;
breached their warranties of safety and fitness and misrepresented the characteristics of UPFs;fraudulently concealed the products’ defects;violated unfair trade practice and consumer protection statutes; and
unjustly enriched themselves through the sales of these foods.
Monica Castro, et al. v. Abbott Laboratories,
U.S. District Court, Northern District of Illinois. (filed January 14, 2025). This very different lawsuit targets the two products “Go & Grow Toddler Drink” and “Pure Bliss Toddler Drink” by Similac, which are manufactured by Abbott Laboratories and marketed to children aged one year or older who have “graduated from breastfeeding or infant formulation.” The American Academy of Pediatrics, the World Health Organization and other professional and scientific groups have criticized “Toddler Milks” for having high levels of sodium, sugar and saturated fat. The complaint focuses on the unfair marketing of these products. The packaging of toddler milk is almost identical to that of Abbott’s infant formulation. It claims that these products are beneficial for “Brain Development,” “Immune Health,” and “Digestive Health.” They are also labeled “stage 3” in order to falsely imply that they are recommended as the next product after children outgrow “stage 1-” infant formula and supplemental formula. The plaintiffs seek to enjoin the continued false advertising of these products, to require a corrective advertising campaign, to reimburse the class for their purchases–which cost $30 or more per can–and to award additional compensatory and punitive damages.
The potential impact of the litigation
The plaintiff in the Martinez case faces some daunting challenges, not the least of which is the combined legal artillery marshaled by the world’s largest food companies. He will have to prove that the UPF products, which number more than 100, are responsible for his medical problems. The fact that these products ostensibly comply with existing FDA requirements will be cited by defendants, along with caselaw that protects commercial speech under the First Amendment.
The toddler milk case may sidestep these causation challenges. Rather than having to prove that the products actually caused harm, the plaintiffs in the toddler milk case may only need to prove that false claims led them to purchase these pricey products.
Neither of these cases was brought by State Attorneys General, who can advance broader public health claims and remedies, as evidenced by the tobacco litigation. These cases may prompt some State Attorneys Generals to take action. If the Martinez case proceeds to the discovery stage, additional evidence could be uncovered that shows the food industry knew of the harms caused by these products. This evidence might encourage State Attorneys General to enter the fray and embolden policy makers to enact stronger regulation of these foods. Before retiring in 2023, Jim Lytle worked as a partner at Manatt, Phelps & Phillips in the offices in Albany, New York City, and Boston, where he advised, lobbied, and litigated for healthcare clients. He was Assistant Counsel for Health and Human Services under Governor Mario M. Cuomo and an Adjunct Faculty at the New York Medical College Public Health PhD program, SUNY Albany School of Public Health and NYU Law School. He was a Fellow in Harvard’s Advanced Leadership Initiative, has been a guest lecturer at Harvard Law School and serves on the Advisory Board for the Petrie-Flom Center.Related Articles
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