As we enter 2015 and people are making resolutions to lead healthier lives, the debate on sugars and fats in our food and drinks rages on. This has led to comparisons with tobacco and concerns in the sector that food and drink manufacturers or retailers may be faced with US style class actions as a result of obesity linked diseases.
However, the headline-grabbing analogies with tobacco fall apart upon closer view. There is no safe use of cigarettes, whereas we all depend on food and drink as part of a balanced diet. Tobacco litigation in the US was successful because of the medical evidence of the link between smoking and certain diseases. In contrast, there has never been a successful smoking-related claim in the UK, due partly to difficulties with medical evidence and as a result of claims being time barred in most cases.
In the case of sugar which has been a hot topic recently, one major hurdle for claimants is that there is no clearly established direct causal link between specific sugary foods and drinks and specific obesity linked illnesses. For claims to succeed, there would need to be incontrovertible scientific evidence that a particular product caused a specific illness, such as diabetes or heart disease. Recent test cases in America against food and drink companies have tended to fail for this reason.
However, US lawyers are exploring innovative new grounds on which to base claims. One approach is to argue that “hidden sugars” prevent consumers from making informed purchasing choices, and they should be entitled to recover the (often substantial) amount of money they spent on such products, along with punitive damages for the misinformation. This avoids getting bogged down in scientific evidence, since the impact on health doesn’t actually come into it.
In the past few months, several class action lawsuits have been filed in a number of US states against Whole Foods Market Inc, claiming that the supermarket’s 365 Everyday Value Plain Greek Yogurt understated the amount of sugar it contains. The label states 2 grams of sugar per serving, whereas recent consumer tests have shown as much as 11.4 grams. The multi-million dollar claims argue that, had the label not omitted important information about the nutritional content of the product, the claimants would not have purchased it. As a result, the claimants have suffered economic damage in terms of the difference between the value of the yogurt as promised and the value as delivered. It is currently unclear whether the sugars being measured include added sugars as well as those sugars naturally occurring in yogurt.
Other recent cases have focused on descriptions of products as “all natural”, where the definition of “natural” may be open to interpretation. The outcomes of these cases tend to be fact specific, with some companies agreeing a settlement without admission of liability and promising to amend their labelling, while others are able to successfully strike out the claims.
Another approach being investigated is that of trying to establish that certain products or ingredients are addictive, and that food and drink businesses either know this or are negligent in failing to pick this up, with consumers becoming unwittingly hooked on “bad” foods as a result. However, it would be very surprising if there were a “smoking gun” to prove this argument, and this still leaves claimants with difficulties in establishing that the ingredient alone caused the illnesses, rather than their lifestyle choices or genetic predisposition.
It’s early days for these claims, and we have yet to see if any successful trends emerge from the US. In the meantime, you can protect your business by complying with all regulatory requirements, as well as any reasonable voluntary codes. In particular, it is essential that consumers are clearly informed about what is in the products they purchase. Also, keep a record of historical packaging and promotional materials, along with a timeline of when changes were made, to help resist any future claims that may be out of time.
Having an established PR strategy is also important so that your business can ensure that its position is accurately communicated to the media, stakeholders and other audiences. Don’t forget to engage external lawyers if your business has any concerns, so that documentation might gain the protection of legal privilege.