New Document Archive Could Open Litigation Against Junk Food Companies

SAN FRANCISCO (CN) – A trove of documents implicating junk food companies in disease and linking them to the tobacco industry unveiled at the University of California, San Francisco, on Thursday could drive new legislation and litigation limiting the availability of unhealthy foods, some experts say.

Comprised of old sugar company records and records from researchers in fields like nutrition and agricultural science, it’s believed UCSF’s fledgling archive will yield evidence that behemoth food and beverage makers have adopted the same tactics used for decades by Big Tobacco to block government regulation, like skewing scientific research in their favor to hide the purported health risks of their products.

That’s partly because of the close relationship between the food and tobacco industries, according to Kim Hanh Nguyen, a public health researcher at UCSF.

FILE- In this Oct. 1, 2018, file photo customers walk down an aisle at Crest Foods in Oklahoma City. (AP Photo/Sue Ogrocki, File)

Nguyen told the audience gathered in UCSF’s Laurel Heights Auditorium that tobacco companies began buying food and beverage companies – including Kraft Foods, General Foods, Nabisco and Post – in the 1960s, when concerns over the health risks of cigarettes were mounting.

She said her research in the new food documents archive has so far uncovered a “systematic transfer” of people and knowledge from tobacco companies to the food and beverage companies they acquired. By 1998, for example, all of the division heads at Kraft General Foods were reporting to tobacco giant Philip Morris, which bought Kraft and General Foods in the 1980s.

Nguyen’s research also suggests tobacco companies used their expertise in developing cartoon characters for their child-oriented beverages to later develop cartoon characters like Joe Camel to sell cigarettes to kids.

“In following many of these [food] products, we found a lot of the marketing strategies to promote these products were applied and really honed by cigarette companies to increase smoking in children,” she said.

UCSF is also home to a tobacco industry documents archive, started in 1994 by Stanton Glantz, a well-known tobacco researcher and director of the university’s Center for Tobacco Control Research and Education.

According to Glantz, the storied archive contains documents showing tobacco companies knew as early as the 1950s and 1960s that smoking can cause heart disease and cancer.

They also show tobacco executives were able to beat back challenges to their products for 50 years by casting doubt on research showing the health risks of smoking. It wasn’t until 1998 that the tobacco industry was essentially forced to admit to the dangers of smoking and accept regulation; that year, the country’s five largest tobacco companies agreed to pay $206 billion to settle lawsuits brought by 46 states to recoup health care costs related to tobacco use.

“The [tobacco] documents played a hugely important role in changing the way policymakers think about these issues,” Glantz told the audience Thursday, and undergirded the 1998 settlement.

Asked after the meeting whether the food archive has the potential to spur litigation against food companies like the tobacco archive did against tobacco companies, Glantz said yes.

A sizable number of documents in the tobacco archive already link the tobacco and food industries, and the addition of the food archive will help lawyers “make connections” between them, he said.

Glantz also didn’t rule out litigation by the states. “There has been talk” about it, he said.

UC Hastings School of Law professor Dorit Reiss confirmed in an interview that state-initiated litigation against the food industry is feasible, if certain criteria are met.

Documents used as evidence in litigation must show fraud on the part of the defendant food companies, said Reiss, who did not attend Thursday’s event. She said the tobacco documents showed that executives knew early on about the harms of smoking and attempted to hide them.

“That was a strong case,” she said. “The question is, do you have a strong case here?”

Second, she said, the defendants chosen must be similar enough to be treated as a whole, otherwise “you’re going to have a breakdown.”

“You’re going to have a question of who to sue, how does the damage distribute between them, because you have to show…there was enough harm to get them on the hook,” said Reiss, who teaches torts.

She said courts must meanwhile “address the question of, is there enough there to claim they committed fraud that imposed health costs on the state?”

So far, public health researchers think there might be. Cristin Kearns, an assistant professor of dentistry and health policy at UCSF, said Thursday that one old document in the food industry archive reveals a tobacco company hired a former sugar association executive based on his expertise in spinning research on the negative health effects of sugar.

Another document shows the sugar industry refused to publish results suggesting sugar might be linked to elevated levels of triglycerides and an enzyme linked to bladder cancer.

“We believe that if it had been published at the time, it would have strengthened the case that sugar is linked to heart disease, and the FDA [Food and Drug Administration] might have scrutinized sucrose as a potential carcinogen,” Kearns said.

But litigation may not be the best strategy for reducing junk food consumption and its associated diseases. A 2008 paper by Robert Rabin, an expert in torts and a professor at Stanford Law School, found that the tobacco settlement had little effect on smoking rates beyond increasing the price of cigarettes by about 39 cents per pack. Higher cigarette prices are linked with reductions in smoking.

Lorrene Ritchie, director of the Nutrition Policy Institute at the University of California, said by phone that a combination of policy changes and “environmental changes,” or tweaks making it easier to choose healthy foods over unhealthy ones – can reduce obesity rates in the United States, which have doubled over the last 40 years.

Environmental changes include ones like California’s recently passed law making water or plain milk the default beverage served with children’s meals. Eliminating food advertising on television and child-oriented websites is another example, said Ritchie, who was not part of Thursday’s event.

“That’s what we think is the way forward, but it’s going to take some big bold initiatives,” she said, like reimagining the supermarket to include only healthy foods.

Thursday’s keynote speaker was Marion Nestle, a professor emeritus of food studies and public health at New York University. Nestle was there to discuss her new book, which advises nutrition scientists to stop accepting research funding from the food industry.

Similarly to her co-presenters, Nestle argued industry funding skews science in favor of the sponsor. She recommends instead obtaining funding from the National Institutes of Health or a foundation.

Asked whether there is enough research money available from those sources, Nestle said yes, though she said competition for it would be fierce.

“Good projects always get funded,” she said.

%d bloggers like this: