TAKING BIG FOOD TO COURT: A COMPARATIVE ASSESSMENT …library.emmanuel.edu/ARCHIVE/sites/default/files/... · Discount Tobacco City & Lottery, Inc. v US (2012), to showcase similarities

TAKING BIG FOOD TO COURT: A COMPARATIVE ASSESSMENT OF THE FOOD AND

TOBACCO INDUSTRIES

Nicole Fluckiger

AMST4178

May pt, 2015

© Nicole Fluckiger

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Abstract

The United States currently faces a health crisis. Many of these underlying health issues

are linked to the food American's consume. Large food corporations hold great power in

determining what food is available and at what cost. The connection between health issues

relating to diet and the role of food corporations in producing and distributing food leads to the

question of to what extent are Big Food corporations liable for the foods they produce in a court

of law. This study compares the precedent of tobacco litigation to food corporations. Thus

raising the possibility of holding food corporations liable for their practices by focusing on

manufacturing, marketing, and advertising techniques. The similarities between Big Tobacco and

Big Food support the argument that Big Food can be legally responsible for the health issues

caused by their products. This analysis offers a viable path to addressing America's health issues

caused by diet.

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Introduction

Food consciousness in America has grown in relation to the food problems the United

States faces. Access to food, specifically nutritious food, is difficult in food deserts and areas of

lower socioeconomic status. Areas of lower socioeconomic status are full of processed,

unhealthy, and fast food. The processed and manufactured foods often contain ingredients known

to have negative effects, yet consumers eat them regularly without education of health risks. 1 The

combination of limited access to nutritious food relative to the prevalence of processed food

containing manufactured ingredients leads to a declining health state in America. As health

declines, the importance increases for the nation to look towards solutions to improving the

wellbeing of its citizens. The food citizens consume represents a possible solution to the

problem. In order for this to happen, however, food production needs to be monitored due to the

aforementioned link between food and public health.

A few main companies are responsible for a majority of the food that American citizens

consume. These companies, known as "Big Food," hold an immense amount of power over the

food that Americans consume. As a result, can these companies be held responsible for the food

they provide? To what extent can Big Food corporations be held liable for health issues linked to

food consumption? Answering this question is important for the future of health in America. It

has become increasingly convenient, in regards to time and money, to both produce and purchase

food that is highly processed and contains large amounts of sugar, salt, and fat. These foods are

often bad for the health of consumers and indirectly affect certain groups of consumers. These

factors increase the case against food corporations in hopes of changing their methods of

1 Eric Quinn and Chris Young, "Why the FDA Doesn't Really Know What's In Your Food," The Cornucopia Institute, Ap ri I 15, 2015, http://www.comucop ia .org/2015/04/why-the-fda -d oesnt -rea Ily-know-whats-in-your -food/.

production to create healthier and more nutritious products that are available and affordable for

the population as a whole.

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This study explores the liability of Big Food corporations in regards to their role in the

declining health of America and the possibility of legal action. The following section addresses

the relevant literature assessing the links between public health and food consumption, and the

practices of Big Food in regards to marketing strategies and techniques and the manufacture of

food. Next, the research design discusses the successful cases against tobacco companies,

including the Tobacco Master Settlement Agreement (1998), US v P hili p M orri s (1999), and

Discount Tobacco City & Lottery, Inc. v US (2012), to showcase similarities reflected in the food

industry. Big Food mirrors tobacco litigation in regards to the links to health issues, targeting of

youth, and advertising strategies. These factors were essential in findings against the tobacco

companies; such a precedent could be applied to food corporations. These cases will demonstrate

that there are enough similarities between successful tobacco cases and current issues facing the

food industry to bring a case against Big Food. A successful case or settlement is possible

against Big Food corporations.

Health issues related to food consumption are well documented through studies on

obesity, diabetes, and chronic illnesses. Attempts have been made to impact the production of

food in America, including sugar tax, portion regulation, and governmental agencies, but none

have been successful. It is unlikely that Big Food will regulate itself and their attempts to

produce heathier opinions are unlikely to solve the problem. Therefore, pursuing legal action

similar to that against Big Tobacco represents a plausible path.

Literature Review

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Defining 'Big Food' and Big Tobacco

Previous research on the food industry portrays the growing size and influence of food

companies. These 'Big Food' companies hold immense power over what Americans consume.

Big Food consists of the major companies involved in the food industry of the United States. The

food industry refers to "companies that produce, process, manufacture, sell, and serve foods,

beverages, and dietary supplements. In a larger sense, the term encompasses the entire collection

of enterprises involved in the productions and consumption of food and beverages.,,2 This means

all companies that have a major role in the means by which food makes it to American

consumers are a part of Big Food. The food industry is dominated by a few key players, these

companies include, but are not limited to, Kraft, Nabisco, General Mills and Proctor & Gamble,

Coca-Cola, McDonalds, and Mars. 3

Michael Moss, food industry researcher, describes these companies as, "the dominant

players in processed food, fiercely aggressive competitors who, when not gathering in secret,

were looking to bludgeon one another in the grocery store.,,4 Moss suggests the collaboration

among these companies by describing how they meet in closed meetings to discuss matters

regarding food production and sales. These companies work together to control the food industry

as a whole, yet work against each other to control what each individual is eating, hoping it will

be their products.

Similar to the definitions of Big Food, Bid Tobacco is the major companies that produce,

manufacture, and distribute tobacco products. The tobacco industry has been called, "public

health enemy number one : It sells a commodity that will kill 500 million of the 6 billion people

2 Marion Nestle, Food Politics. (Berkley: University ol Calilornia Press, 2007), 1l.

3 Michael Moss, 50lt 5ugor Fat. (New York: Random House, 2013), kindle edition, 66.

4 Moss, 50lt 5ugor Fat, 66-68.

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living today. For governments, tobacco is both a health threat and a powerful economic force

that annually generates hundreds of billions of dollars in sales and billions more in tax

revenues.,,5 These companies include; Philip Morris, R.J. Reynolds, Lorillard, Commonwealth

Brands, National Tobacco, and more. These companies own the major tobacco brands; for

example Philip Morris owns Marlboro, L&M, Merit, and others, and R.J. Reynolds owns Camel,

Paull Mall, and Kool. Big Tobacco has control of the products consumed by tobacco users in a

similar way that Big Food has control over the food consumed by Big Food users.

Links to Health Issues

Health research demonstrates that food and diets are contributing factors to the health

issues that are present in America today. The health in America is declining due to issues that

could have been caused by or linked to food intake and the way that Americans eat. America has

become food abundant in foods that are less than nutritionally efficient. The problem today

includes, "Americans shifted to those of over nutrition- eating too much food or too much of

certain kinds of foods.,,6 According to Marion Nestle, an expert on the food industry in the

United States, these health issues caused by eating include, "deranges metabolism, makes people

over weight, and increases the likelihood of "chronic" diseases- coronary heart disease, certain

cancers, diabetes, hypertension, stroke, and others.,,7 This list of diseases has been linked to the

food Americans consume, and the amount of food Americans consume. Jeffery Dunn, a former

Coca-Cola employee turned whistle blower, describes the company as "blind to the desire to

5 Kenneth E. Warner, 2002, "Tobacco," Foreign Policy (130): 20-22+24+26+28, http://www.jstor.orgfstable/3183484.

6 Nestle, Food Politics, 3.


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win," ignoring the effects of their products. Dunn explains that obesity is an epidemic, "and there

is no question its roots are directly tied to the expansion of fast food, junk food, and soft drink

consumption. ,,8 The field agrees these health problems are present and linked to food but these

foods appear everywhere and are difficult to avoid, continuing the health crisis. Nestle also adds

that food related health problems, "now are leading causes of illness and death in any overfed

population.,,9 If food is now causing the most prominent health problems that the United States

faces, a solution must become an important agenda.

These problems do not occur evenly in all populations or in all geographic areas of the

nation. Data depict gender and racial differences in regards to fast food consumption and obesity

rates. For example, persons of color tend to live closer in proximity to fast food establishments

and have higher rates of obesity than do white individuals; a similar relationship applies to

women over men. 10 Economic status also affects the foods Americans consume. Processed food,

specifically fast food is inexpensive, and therefore attracts lower socio-economic groups. 1 1 Food

deserts, "areas without ready access to fresh, healthy, and affordable food," inhibit residents

from eating balanced, healthy diets. 12 Groups of individuals that lack choice by economic status,

location, family status, or other restrictions are often restricted to the least healthy options.

Food effects Americans lives in ways it has not in the past. Recently, food has raised

concern regarding health implications. Food today is processed and produced in mass amounts.

8 Moss, 5alt 5ugar Fat, 1957-1958.


10 Richard A. Dunn, "The Effect of Fast-Food Availability on Obesity: An Analysis by Gender, Race, and Residential

Location," American journal of Agricultural Economics, 92 (2010): 1162,http://www.jstor.org/stable/40931072.

11 Andrea Freeman, "Fast Food: Oppression through Poor Nutrition," California Law Review, 95 (2007):

2258, http://www.j stor .org/ sta b I e/2043 9143.

12 "Food Deserts," United States Department of Agriculture, http:// a p ps.a ms. usda. gov /food d ese rts/food dese rts.aspx.

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Gone are the days of personal fanns and neighborhood exchanges. Americans now purchase

almost all of their foods from mass producers. These foods, are different than previous foods,

containing, salt, sugar, and fat, which is beneficial to food companies but hannful for our bodies.

Michael Moss highlights this change throughout his book Salt, Sugar, Fat, explaining how each

of these ingredients has increased in the foods we consume. Similar to Jeffery Dunn, Moss

explains food companies use these ingredients to their advantage ignoring the harm they may

have on consumers. Michael Mudd, the vice president of Kraft, spoke at an industry conference

about the negative effects of companies just like his own. Mudd not only "laid the blame for

obesity at the feet of the CEOs" but also linked food products to tobacco cigarettes. 13 This

connection was made in a food industry conference, an early sign that food products and tobacco

products are linked. If the industry leaders can see the connection, likely others will too.

Tactics of Food Companies

Food companies use techniques to increase the consumption of their products. These

tactics are used with often little regard for the effects they have on consumers and consumer

health. Fast Food companies exemplify the tactics used to successfully sell products. The first

tactic used by food companies is group targeting. Fast food companies knowingly target groups

of lower income and often less educated individuals because these groups are more susceptible to

advertising campaigns.14 Groups that are most likely to see commercials, those exposed to more

television time, or those who live in urban areas with street advertising, react best to

advertisements. These people often do not have the knowledge or means of getting better

infonnation on the food they eat, and therefore succumb to the advertising. Cheap foods tends to


14 Freeman, "Fast Food: Oppression through Poor Nutrition," 2221-2259.

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target lower income individuals for example, the dollar menu sells high calorie, cheap foods to

those with small budgets. This tactic can also be used by companies beyond fast food in the Big

Food industry, including producers of soda, junk food, and other processed products.

Another tactic involves the presentation of food and portion sizes. Pierre Chandon and

Brian Wansink studied the connection between the ways that main dishes and side dishes are

served and the effects on how consumers eat. Customers are more likely to order more side

dishes when a low calorie main dish is served. IS The results of this tactic create more revenue for

the company because more food is purchased, and a higher food and calorie intake for the

consumer. This is because consumers are misled into thinking that because their main dish may

be lower in calories they can have more calories in side dishes. Often the side dishes served by

companies are high in calories and have more consumer satisfaction. Chandon and Wansink

explain that companies advertise some foods as healthy in order to encourage consumers to

purchase more food. The tactic works and consumers over consume calories.

The third tactic includes both food companies and the FDA. Food companies use FDA

labeling to their advantage in order to have their products labeled the way they want to be

portrayed. The FDA has loosened their regulations on labeling, allowing food companies to

make health claims on their products that may be misleading or leave out information to

consumers. 16

Previous links between Tobacco and Food: Economics, Health Implications, & Addiction

15 Pierre Chandon and Brian Wansink, "The Biasing Health Halos of Fast-Food Restaurant Health Claims: Lower Calorie Estimates and Higher Side-Dish Consumption Intentions," journal of Consumer Research, 34 (2007): 301-

314, http://www.jstor.org/sta ble/1O.1086/519499.

16 Jonathan H. Marks, "At Law: On Regularity and Regulation, Health Claims and Hype," The Hastings Center Report, 41 (2011): 11-12, http://www.jstor.org/stable/41241280.

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Links between Tobacco and Food have already been made in economics, health

implications, and addiction. These links demonstrate the similarities between tobacco companies

and food companies. Benedicte Coestire looks at the link between tobacco companies and food

companies in terms of economics. He admits, "Recent studies on the health consequences of

obesity have shown that overeating may be as dangerous as smoking in terms of life

expectancy.17 Coestire then argues that the cost of damages caused by the negligence of these

companies need to be offset by protection mechanisms in order to lower the industry cost. If a

risk for damage is low there is no need to address the problem but if the risk for damage is high it

would be cost effective to address. He explains that informational advertising is only a good

investment if it will be accepted by consumers and will change consumer behavior. Putting

money into informational advertising assumes that consumers make poor choices, in terms of

food or tobacco because they lack education. If this assumption is not correct, Coestire says it

would be money wasted. Coestire's research supports other options, rather than informational

advertising, meaning a lawsuit could be a better use of resources.

In referencing the similarities between tobacco and food, Moss points out how both

tobacco and food companies have taken a toll on the health of Americans yet, "we've become

upset by the tobacco companies advertising to children, but we sit idly by while the food

companies do the very same thing. ,,18 He calls for action to be taken against food companies as it

has been taken against tobacco companies. In a similar tone, Nestle comments on the similarities

between tobacco and food; "people may believe that the effects of diet on chronic disease are

less important than those of cigarette smoking, but each contributes to about one- fifth of annual

17 Benedicte Coestier, Estelle Gozlan, and Stephan Marette, "On Food Companies Liability for Obesity," American journal of Agricultural Economics, 87 (2005): 1, http://www.jstor.orgfstable/3697987.

18 Moss, 50lt 5ugor Fat, 162-164.

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deaths in the United States.,,19 Both Moss and Nestle connect the health implications of food and

tobacco. If each industry contributes to deaths in America equally, why should they not be

treated similarly? Nestle's research helps hold food to the same standard that tobacco was held

to.

Addiction to food has been compared to addiction to tobacco. Foods, specifically sugars,

have demonstrated addictive properties. Research has shown, "Sugar also has clear potential for

abuse. Like tobacco and alcohol, it acts on the brain to encourage subsequent intake. There are

now numerous studies examining the dependence- producing properties of sugar in humans. ,,20

The addictive properties of sugar gains repetitive users similar to tobacco users. Users become

reliant on products and are consistent purchasers. Companies benefit from these users because

they produce stable revenue.

Possible Paths to Improving Health and Effecting Change in the Food Industry

This paper argues that legal action directed at Big Food represents the most viable option

to addressing health issues relating to food consumption, over other possibilities including

government action, legislation, and self-regulation. The trouble with these other options and

benefits of legal actions show that legal action is a viable course to take.

Alternative One: The u.s. Government: The first alternative is the United States

Department of Agriculture (USDA). The USDA publishes dietary recommendations for what

Americans should consume. These recommendations are published in pamphlets, seen in grocery

stores and taught to children in schools. These recommendations have a large impact because

they reach so many individuals including adults and children. If these guidelines have so much of


20 Robert Lustig, Laura Schmigt, and Claire Brindis, "The Toxic Truth About Sugar," Nature 482 (2012): 28.

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an impact some would suggest having the USDA change their recommendation away from

products produced by Big Food. Although this would be a helpful step the USDA has not always

made their recommendations based off of what is scientifically proven to be the best diet. The

USDA is affected by influences such as lobbyists and government officials that want to

encourage the consumptions of products from certain industries. For example, during World War

II, the USDA recommended that citizens eat abundant amounts of the foods that were available

during war and lower amounts of the foods that were not available. 2 1 The USDA was aware that

about half of the foods that were recommended were fat sources, which had been proven should

be consumed in lower amounts. The USDA chose to ignore scientific data to support government

actions of the time.

In addition to the USDA being affected by the political environment, they are also

affected by the corporations leading the food industry. The USDA has been known to be

persuaded by companies directly and change recommendations to appease food companies. For

example, in 1997, the USDA issued a set of recommendations which lowered the recommended

consumption of meat and dairy products than previously recommended in the guidelines. This

angered the meat and dairy industry out of fear that their industries would lose business. The

meat and dairy industry fought these recommendations by discrediting the USDA guidelines and

put direct pressure on USDA members. Due to these pressures the committee in charge of USDA

guideline recommendations revised the edition of Dietary Goals within a year 22 These revisions

increased the amount of meat and dairy allotted. This example shows the large amount of power

that industries have on the USDA, making their guidelines both unreliable and difficult to


22 Nestle, Food Politics, 40-42.

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change. If the USDA ignored scientific infonnation in the past to appease the government and

industry there is little chance they would change their recommendations to decrease consumption

of products made by any Big Food corporation.

The government of the United States has often been referred to as having a "revolving

door." The job of food industry executive, food industry lobbyist, and state representative are

interchangeable for some. Retired representatives can work for the food industry as lobbyists for

increased pay and hold the connections in Congress to be a successful lobbyist2 3 This revolving

door leads to less than honest actions between industry and the government and an extreme

amount of influence over the USDA. The food and beverage industry is recorded to have given a

total of $8,899,046 to members of congress in 20142 4 The influence of this money holds power

in Congress and sways representatives to support the food industry.

Alternative Two: Legislative Means: The creation of laws intended to regulate food

production would force change in Big Food. This method has worked in Europe, for example

Denmark has a law taxing food high in saturated fat. 2 5 Laws force companies to produce food in

compliance with the regulations taxed ingredients. Unfortunately, these restrictions have not

worked in the United States in the past. This was demonstrated in the New York City case of

limiting sizes on sugary beverages to sixteen ounces. The New York Supreme court ruled the

23 Nestle, Food Politics, 100-101.

24 "Top Interest Groups Giving to Members of Congress, 2014 Cycle," accessed April 22cd, 2015,

http://www .ope nsecrets.org/ind ustriesl me ms. ph p.

25 Robert Lustig, Laura Schmigt, and Claire Brindis, "The Toxic Truth About Sugar," Noture 482 (2012): 28.

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legislation as exceeding regnlatory power. 26 Due to conflict with state constitutions regnlating

food through legislative means would be unproductive.

Alternative Three: Self Regulation: The food industry is extremely successful and

profitable. These companies make billions of dollars off the food they produce. This profit gives

little incentive to make change. Producing healthier alternatives is costly and may infringe on

competition within the grocery stores. The combination of profits and freedom from regnlation

make self-regnlation by companies unlikely.

Alternative Four: The Courts: A benefit of legal action is the likelihood of settlement. An

over whelming majority of cases brought to court result in out of court settlements. These

settlements save time and money spent on long trials and keep the judicial system efficient. A

settlement with Big Food would likely lead to money paid to those affected by food corporations

and requirements set on food companies. The settlement with Big Tobacco formed the Campaign

for Tobacco Free Kids, a similar foundation could be created with Big Food. The agreements

made by Big Food could likely change production means and add benefits such as educational

mandates.

Research Design

This paper supports a legal path against Big Food through a comparison with the cases

against Big Tobacco. The rulings against tobacco companies will be applied to Big Food. This

research looks at the following cases regarding tobacco companies; the Tobacco Master

Settlement Agreement (1998), u.s. v Phillip Morris (1999), and Discount Tobacco City &

Lottery, Inc. v United States of America (2012). These cases will be broken down through five

26 Michael Grynbaum, "New York's Ban on Big Sodas Is Rejected by Final Court," The New York Times, June 26,

2014, http://www.nytimes.com/20 14/06/27/nyregion/city-loses-fina I-a p pea I-an-I im iting-sa les-of-Ia rge

sodas.html?_r=O.

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categories; links in standing, marketing to children, misleading advertising, reason to act, and

positives of a settlement.

Links in Standing

Standing must be established to bring a case to trial. The United States brought the three

cases against Big Tobacco; through the Department of Justice, Attorney Generals, and the FDA.

Discount Tobacco City & Lottery, Inc. v U.S. affirmed the power of the FDA to regulate tobacco.

The FDA could deduct from that case that they have the power to regulate Big Food as well.

Another possibility is an individual person who has been negatively impacted by the effects of

Big Food bringing a case to trial. An individual is less likely to make policy change and more

likely to result in a monetary settlement. In 2014, Robinson v Reynolds, a case against R.J.

Reynolds, brought by a woman who lost her husband due to health issues caused by smoking,

successfully sued for millions of dollars. 2 7 Although both the United States and an individual

affected have standing, the United States is most likely to bring the case.

To demonstrate standing in cases against tobacco prosecutors needed to show the links

between health issues and the products being produced. The literature review explained how the

links to health issues and food products have been demonstrated. Marion Nestle's research shows

the link between food and chronic diseases such as; coronary heart disease, certain cancers,

diabetes, hypertension, stroke, and others.2 8 In the case United States v Phillip Morris (1999) the

decision stated that Phillip Morris denied the health effects of smoking from 1953 to 2000 and

used their own resources to launch attack campaigns on the scientific research that demonstrated

27 Julie Deisher, "Florida jury hands down $40 billion verdict against tobacco company," Jurist, July 20,h, 2014,

http://ju rist.org/ pa percha se/20 14/07/florid a -j ury-ha nds-down-40-bi II i on-ve rd i ct -aga inst -tobacco-com pa ny. ph p.


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the health issues linked to tobacco products.2 9 The decision explains the known health effects in

contrast with the actions of Philip Morris to show that these health issues did exist regardless of

the way that Philip Morris presented their products. The key argument in the decision against

Philip Morris in this case is, "they ignored the massive documentation in their internal corporate

files from their own scientists, executives, and public relations people that, as Philip Morris's

Vice President of Research Development, Helmut Wakeham, admitted, there was 'little basis for

disputing the findings [of the 1964 Surgeon General's Report] at the time.,,30 Philip Morris knew

their products were health risks and continued to produce and market the products as if they did

not have this information. Neglecting to publish and share this information to consumers

demonstrates the neglect of Philip Morris. This is a key piece of information because it places

responsibility on Philip Morris for ignoring information they had about the dangers of their

products. In addition to ignoring the research of their own scientists, which backed up the

research of the Surgeon General, Philip Morris published campaigns stating the complete

opposite of what their researchers had found.

To apply this accusation to food companies will be difficult because there is not a way to

get information on how much food companies have researched on the effects of their products.

This research has been thoroughly completed by outside sources, but not published by

companies. Although it may be assumed that they have completed their own research, there is

not yet evidence of their research. The decision published in the case of Philip Morris highlights

information that was found through the trial of the case through search warrants. The private

research of companies is not public information and therefore would need a warrant to access. If

29 "United States of America v Philip Morris USA Inc.," Public Heath Law Center, Accessed February 2,2015,

http:// pu b I ichea I th lawcente r .orgisites/ d efa u It/fil es/ resou rces/ d oj -fina I-opi ni on. pdf.

30 "United States of America v Philip Morris USA Inc.," Public Heath Law Center.

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this research is found, it is likely that it contains similar information to the tobacco companies,

where there is known effects of their products on health and wellness. There has been outside

research on the effects of salt, sugar, and fat on health. Marion Nestle has done extensive

research and concluded that the health effects of food include, "it deranges metabolism, makes

people over weight, and increases the likelihood of "chronic" diseases- coronary heart disease,

certain cancers, diabetes, hypertension, stroke, and others.,,31 This research is public and at the

access of food companies. Big Food has chosen to ignore this research and not changed their

products to become more body friendly and help consumers avoid life threatening diseases.

In the case of Discount Tobacco City & Lottery, Inc. v United States of America (2012)

the decision affirms the Family Smoking Prevention and Tobacco Control Act. This act gives the

FDA the authority to "regulate the manufacture, distribution, and marketing of tobacco

products.,,32 The act restricts tobacco companies from marketing to youths, requires warning

labels on tobacco products, regulates the making of 'modified risk tobacco products,' and

preserves the power of state and local governments' to regulate tobacco products.33 This case

upholds all of these powers, endorsing that the FDA does have the power to regulate tobacco

products for issues of public health 34 This case sets a precedent for the FDA. If the FDA can

regulate tobacco products to protect public health, why could they not regulate food products to

protect public health? This is to be argued in court but the precedent of Discount Tobacco City &


32 "Overview ofthe Family Smoking Prevention and Tobacco Control Act: Consumer Fact Sheet," u.s. Food and Drug Administration, March 6, 2015,

http://www.fda.gov/tobaccoproducts/guidancecomplianceregulatoryinformation/ucm246129.htm .

33 "Overview ofthe Family Smoking Prevention and Tobacco Control Act: Consumer Fact Sheet," u.s. Food and Drug Administration.

34 "Discount Tobacco City & Lottery, Inc. v United States," United Stotes Court of Appeols, Accessed March 20,

2015, http://www.ca 6. uscou rts.gov lop in ions. pd f/12a0076 p-06. pdf.

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Lottery, Inc, v United States of America (2012) is a helpful argument when applying FDA

regulations to Big Food,

Marketing to Children

Corporations target children because they are some of the most profitable consumers,

Youths are young and have many years ahead of them to purchase products; companies hope

they will purchase their products and form loyalties, Loyalties are associations to products which

consumers will carry throughout their lives, An example is the never ending war between Coca-

Cola and Pepsi products, Companies hope at a young age Americans will chose their side of the

soda war, Lifetime loyalties are often formed in children by their teenage years,35 This means

that companies need to act quickly on youths in order to make sure their loyalties are set on the

company's products. One way that companies build loyalties in youths is with pouring rights.

Companies purchase pouring rights, the exclusive rights to sell their products in schools, to brand

children at school ages.36 This incentive for corporations makes advertising to youths a top

priority.

In the Tobacco Master Settlement Agreement (1998) restrictions were placed on

advertising to youths. Some examples of advertising to youths include Camel Cash and Marlboro

Miles, which enticed youths to purchase tobacco products with incentives.37 The settlement

placed these restrictions in an attempt to stop Big Tobacco companies' access to children, in

order to limit children's access to tobacco products. The settlement stated "No participating



37 Ronald M. Davis, "Cornering kids with coupons and Camel Cash," Tobacco Control 8MJ, 210, Accessed April 25,h,

2015, http://tobaccocontrol. b m j .com/ conte nt/4/3/21O. lull. pd I.

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manufacturer may take any action, directly or indirectly, to target youths within any settling state

in the advertising, promotion or marketing of tobacco products, or take any action the primary

purpose of which is to initiate."38 This policy restricted advertising on youth television networks

or to youth audiences. In addition the retention programs were limited and quickly ended. This

limited the companies in the settlement from accessing children and teens in order to promote

their products to a highly vulnerable audience.

Food companies have this same kind of access that tobacco companies had and were

eventually limited from. The American Psychological Association has found that kids get 44.5

hours of screen time per week. 39 This means that companies have access to 44.5 hours of a

child's week to bombard them with advertisements of their products. These advertisements can

be through direct commercials or indirectly woven into television shows that children watch, for

example if a child's favorite cartoon character eats a certain type of food. This gives companies

of all industries access to young Americans.

These commercials are often food related and impact the way that children eat. Michael

Moss explains that, "the typical American child in 1979 would watch more than twenty thousand

commercials between the ages of two and eleven- and more than half of those ads were pitching

sweetened cereals, candies, snacks, and soft drinks.,,40 Food companies use the amount of screen

time that children get to their advantage to gain access to children and persuade them to desire

their products. The information Moss uses is from 1979, although this is not recent data, it could

38 "Master Settlement Agreement," State of California Department of Justice, 14, Accessed February 1, 2015,

http://ag.ca.gov/tobacco/pdf/1msa.pdf.

39 "The Impact of Food Advertising on Childhood Obesity," American Psychological Association, Accessed February

3rd, 2015, http://www.apa.org/topics/kids-media/food.aspx.

40 Moss, Salt Sugar Fat, 1617-1619.

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be anticipated from the data of the American Psychological Association that these numbers have

only increased with the large amount of screen time children have access to today. The report

referenced in Moss's book continues, "Sugar was promoted as many as four times per half hour

on each network ... and as many as seven times per half hour if fast food advertising was taken

into account.,,41 This means that constant attention is being brought to food while children are

watching television or any other type of entertainment. Food companies must know they are

making an impact on children because they are spending quite a large amount of advertising on

children's networks. Michael Moss explains, the amount of time that food companies advertise

unhealthy foods is not just a problem because of the impact on children through large numbers of

commercials, but because it diverts attention from healthier options 42 Food companies are

covering up healthier options in order to market their products, impacting the health of youths.

The studies demonstrate the large numbers of advertisements being pushed on children,

yet what can be done with the research? The advertisements do more than fill screen time, they

have psychological effects. These advertisements lay messages about what American children

should be eating and tell children what they want to eat. The American Psychological

Association found "strong associations between increases in advertising for non-nutritious foods

and rates of childhood obesity.43 These commercials contribute to the declining health of

America, specifically in children. The vulnerably of children and their lack of judgment between

reality and television leads to advertisements becoming reality.

In the cases against Tobacco Companies it was clear that these companies targeted youths

in order to increase the number of consumers. In United States v Phillip Morris (1999) the judge



43 "The Impact of Food Advertising on Childhood Obesity," American Psychological Association.

2 1

stated, "the evidence is clear and convincing- and beyond reasonable doubt- that defendants have

marketed to young people twenty - one and under while consistently, publically, and falsely

denying to do SO.,,44 The judge continues to explain how tobacco companies purposely marketed

to youths by saying "Philip Morris has conducted extensive research to help inform and shape

marketing campaigns that appeal to their youngest potential smokers.,,45 In this case the tobacco

company was using resources to best identify young audiences and encourage them to purchase

tobacco products, while simultaneously denying these tactics were being used. To compare this

to food companies would be less clear than other arguments. Yes, food companies are targeting

to youths, targeting a vulnerable audience with little self-judgment, but these companies are not

denying their actions. Food companies are very transparent about their young audience. What

Moss refers to as product news is incentives within food products to gain more purchasers.

Examples of product news include new formulas that make food crunchier or sweeter, prizes, or

incentives. Incentives are things like loyalty programs, or multi-part collectable items that

require multiple purchases 46 These items are explicitly targeted at children. Another example is

happy meals, prizes only put in the child size portion meals that make fast food fun for kids.

Unlike tobacco, Big Food has not denied their targeting of youths, in fact they defend it.

"They rationalize their use of advertising to children as an expression of freedom of speech.

They argue that advertised foods are not inherently unhealthful and that advertising encourages

children to eat breakfast or healthier food products. They maintain that no one food contributes

to obesity more than any other and emphasize that exercise- not diet- is the key to weight




22

control.,,47 The defense of free speech is being used by Big Food because they feel they can say

or advertise anything they want regarding their products. Pointing blame at exercise rather than

food is also a defense raised by Big Food in regards to childhood obesity. Freedom of speech

was limited in tobacco companies through the Food and Drug Administration, therefore could be

limited in Big Food. As of now Big Food believes they hold the right to advertise to any group

they choose.

Misleading Advertising

The most compelling pieces of evidence against tobacco companies regarded reduced

risk products. Reduced risk products include products that lead consumers to believe they are

consuming a product with less danger or threat to their health. The products were created by

tobacco companies to keep consumers. When research began surfacing that tobacco products

were a health risk, some consumers began to quit. Tobacco companies created these reduced risk

products to keep consumers that were considering quitting or using less of their products.

Tobacco companies did research on how to keep customers that were quitting and deter potential

quitters 48 The tobacco companies used "brand descriptors such as "light" and "ultra-light" to

communicate reassuring messages that these are healthier cigarettes and to suggest that smoking

low tar cigarettes is an acceptable alternative to quitting.,,49 These findings come from the

decision of Judge Kessler in a 1,683 page decision. The length of Judge Kessler's decision shows

the complexity and large amount of evidence in this case.




23

Using similar techniques, Big Food uses reduced risk products to draw and keep

consumers. Sharing the descriptor "light," food companies also use "low fat," "low sugar," "low

calorie," "fat free," "sugar free," and other reduced threat terms. These descriptors make

consumers believe they are eating a healthier option. Similar to tobacco companies wanting to

keep consumers, food companies want to keep consumers that are trying to cut out certain

ingredients or diet. Some of these claims do not contain any change in the product but rather a

change in packaging. A food may not naturally contain sugar, but if the company puts a sticker

on the outside that says "sugar free" consumers perceive it to be a better option. The terms

"Free," "Low," or "Light" are dictated by the FDA and are not transparent to the actual contents

of the food. For example for an item to be labeled "Calorie Free" it needs to have "less than 5 cal

per RACC and per Labeled serving."so A food could contain calories but still be labeled Calorie

Free. Similarly "Low Calories" is "40 cal or less per RACC (and per 50 g if RACC is small) (b)

(2) Meals and main dishes; 120 cal or less per 100 g."Sl These labels are controlled by the FDA,

influenced by corporations, and are not accurate to what is in the food that is labeled. Although

consumers trust the "free," "light," and "low" labeling to better their diets, it does not accurately

dictate diet intake.

Eating foods that consumers believe to be healthy not only keeps consumers eating these

food but could make them eat more unhealthy food. If someone believes what they are eating is

good for them they may end up consuming more servings than they would otherwise. These

labels can also dictate how someone shops in a grocery store, preferring foods with healthy

labels. In Food Politics Marion Nestle explains how the "Heart Healthy" label is allowed on

50 "Guidance for Industry: A Food Labeling Guide," U.S. Food ond Drug Administration, December 31, 2014,

http://www . fd a .gov /Food/G u i da nceRegu lation/G ui da nce Docu me ntsRegu latoryl nformation/La bel ingN utrition/uc

m064911.htm.

51 "Guidance for Industry: A Food Labeling Guide," U.S. Food ond Drug Administration.

foods like sugary cereal. These foods may be healthy in one category but unhealthy in another,

containing low levels of salt and fat, but high levels of sugar. Michael Moss explains how the

improvement of one aspect of food could lead to a worsening of another. Calling it one of the

industry's most devious moves, he explains, "lowering one bad boy ingredient like fat while

quietly adding more sugar to keep people hooked. ,,52 This tactic does not make the food any

better for the consumer, only making advertisements more appealing.

24

The tobacco companies were found liable for these false advertising techniques because,

although advertising is an expression of freedom of speech, the first amendment does not protect

misleading speech by companies. Misleading speech is, "Untruthful speech, commercial or

otherwise, has never been protected for its own sake. Obviously, much commercial speech is not

provably false, or even wholly false, but only deceptive or misleading. We foresee no obstacle to

a State's dealing effectively with this problem. The First Amendment, as we construe it today

does not prohibit the State from insuring that the stream of commercial information flow cleanly

as well as freely. ,,53 If speech is untrue, deceptive, or misleading it is not protected. This means

that the companies can be monitored in their advertising techniques if they are misleading

consumers. Big Food has claimed their advertising is an expression of freedom of speech, (see

Marketing to Children) but this may negate their arguments.

Reason to Act

In the case of u.s. v Phillip Morris (1999) the Judge reasoned that it was necessary to act

against tobacco companies because there was a "reasonable likelihood of further violation(s) in

52 Moss, Salt Sugar Fat, 306-308.

53 "Discount Tobacco City & Lottery, Inc. v United States," United States Court of Appeals.

25

the future.,,54 This conclusion was drawn due to the following circumstances, "[1] whether a

defendant's violation was isolated or part of a pattern, [2] whether the violation was flagrant and

deliberate or merely technical in nature, and [3] whether the defendant's business will present

opportunities to violate the law in the future." [SEC v. First City Financial Corp., 890 F.2d 1215,

1228 (D.C. Cir. 1989)].,,55 Tobacco companies were found to be part of a pattern, deliberate, and

will have the opportunity to violate the law in the future, and therefore the Judge felt that action

against the companies was necessary. If Big Food fits these same criteria there would be reason

to act. The immense amount of money food companies put into their research and marketing

would prove that their actions are not isolated or technical in nature, but rather a pattern that is

deliberately preformed. The business of Big Food will present opportunities to violate the law in

the future. The results of marketing techniques produce consumers and money for these

companies that they would have no reason not to continue their actions. Creating loyalties in

children is one of the industry's best tools in gaining customers. These companies will not stop

their actions due to their own interests, therefore some method of action should be taken.

Positives of a Settlement

Most law suits do not result in full trails, settlements are more frequent and more

efficient. The Tobacco Master Settlement Agreement (1998) was the outcome of a suit brought

against major tobacco companies. In 1998 the Attorney General's Office came to an agreement

with the leading tobacco companies in a settlement. In the agreement the states dropped claims

that anti-trust laws were broken. Tobacco companies paid states billions of dollars for the costs

of disease caused by tobacco. The agreement also created new rules for tobacco companies to



26

follow and forced funding for tobacco education. One of the major outcomes of the Tobacco

Master Settlement Agreement of 1998 was that all involved companies were mandated to pay

money into the National Public Education Fund to be used for tobacco education 56 If Big Food

came to a similar agreement the food companies could be mandated to donate money to a fund

that would educate consumers on how to eat healthy diets. The USDA's funding is limited and

receives influences by too many outside sources to do this job effectively. A separate educational

group, funded by the food companies themselves, could be a better alternative than the USDA

guidelines. Educating people on the importance of diet and what to look for when eating healthy

could help solve many health issues. Research has shown those with lower education are more

likely to suffer from food related diseases, food education would help close the disparity. The

group could also educate by location and socioeconomic class in order to make sure all

Americans are educated on diet and food.

Other positives of settlements could be rules on the descriptive claims, warning labels, or

paid advertising for healthier foods. In cases against tobacco these, "descriptors that convey

implicit health claims,,,s7 were banned. Knowing this is a likely outcome of a trial, food

companies may be willing to agree to stricter regulations on claims in order to best inform

consumers on what they are eating. Tobacco companies were forced to print warning labels on

their products, Big Food could be faced with similar warning label guidelines. As shown

throughout this paper, Big Food puts a large amount of money into their advertising. "Nearly

70% of food advertising is on convenience food, candy and snacks, alcoholic beverages, soft

56 "Master Settlement Agreement," State of California Department of Justice.


27

drinks, and desserts, whereas just 2.2% is for fruits, vegetables, grains, or beans."s8 A possible

outcome of a settlement could be to have Big Food donate to a fund that would advertise fruits,

vegetables, grains, and beans. This would level out the advertising disparity, without infringing

on the advertising of Big Food. These outcomes would be able to make change in regards to Big

Food without having a full trial.

Conclusion

The failing health of America will not fix itself. This paper demonstrates the links

between food and health issues. Many chronic diseases have been shown as effects of poor diets

and over consumption of food. The foods advertised to Americans effect the way Americans eat.

Big Food companies can be linked to the effects of their food, but to what extent can companies

be held liable for the health issues linked to the foods they produce? Food companies use

techniques to encourage consumers to purchase and consume their products. These techniques

include marketing to children, advertising of reduced risk products and use of labeling. Research

has shown the link between advertisements to children and the psychological effect on children.

Children are a highly vulnerable audience and are easily influenced. Changes in labeling and

guide lines within the FDA and USDA, confirmed to be ineffective in educating Americans

about what they are eating. For these reasons a trial may be the next step in action against Big

Food.

This paper attempts to demonstrate the similarities between Big Food and previous

tobacco cases. This paper is not meant to argue a case against Big Food but rather show that a

case is possible. The similarities between tobacco and food corporations displays this possibility.

The first major similarity is advertising to children. Both tobacco and food companies targeted


28

youth audiences because children are susceptible and available to fonn loyalties. Children are

profitable to companies and receive an overwhelming amount of advertising. The next similarity

is misleading advertising of reduced risk products. Both food and tobacco companies produced

products that advertised reduced risk or healthier products to keep consumers. These products

kept consumers purchasing their products that are known to cause health issues. The final

similarity is the reason to act. Tobacco companies were shown to be a threat to continue this

behavior, food companies have the possibility of demonstrating the same threat. If this threat is

demonstrated there would be reason to act upon Big Food. For these reasons a case against Big

Food is a possibility. These companies contribute to the declining health of America and are

responsible for health issues. A settlement is a possible outcome of these accusations, which

would be a benefit to America in tenns of the finances and regulations that would result. Funding

towards educational groups and infonnational advertising would affect the way Americans view

food and support healthier lifestyles. A settlement would hold Big Food legally responsible and

open up methods for change that have not been done is the past. With little guidelines on the

food industry today, a case against Big Food would start a new era for food regulation.

Regardless of a final outcome, bringing Big Food to court is a possible solution to the health

crisis in America.

29

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