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16 October 2012 Last updated at 00:35
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BBC NEWS SITE
Big
Tobacco lawyers target food industry
The lawyers who took on the big US tobacco
companies, and won, have now set their sights on the food industry. Newsnight's
science editor, Susan Watts, asks one of them why he has chosen this particular
fight.
Don Barrett likes his opponents powerful, and
rich. He is the lawyer whose decade-long battle to force the tobacco companies
to admit they knew cigarettes were addictive and pay the medical costs of
victims was depicted in the film The Insider.
He and his colleagues eventually forced a
settlement that cost the industry more than $200bn (£124bn). The lawsuits made
Mr Barrett a very wealthy man. But he says it is not the potential for another
big pay-out that is now making him target "big food".
Don
Barrett's battle against Big Tobacco was depicted in the Russell Crowe film The
Insider
"I'm 68 years old, frankly I don't need the
cash, the law's been good to me," he explains. "This is my job, but
here we have an opportunity to really help people. We're not saying the food
industry is the same as the tobacco industry that kills 500,000 Americans a
year, but we are saying there is an epidemic of obesity that is affecting the
overall health of the American people."
Mr Barrett is one of more than a dozen lawyers
who has filed cases against some of the US food industry's biggest players.
They are not the first lawsuits to target food
manufacturers. For nearly a decade, US lawyers have pursued a variety of
approaches to try to persuade fast food chains to produce healthier, more
nutritious food, but these are being seen as some of the most aggressive,
despite the simplicity of their approach.
Mr Barrett's case against Big Food is that
companies are misrepresenting their products, promoting them as
"natural" or "healthy", when in fact, he says, they are no
such thing.
“Start Quote
The American people assume that if a product is
legal to sell, then these people are telling the truth about this product...
that's what they thought about cigarettes”
Don Barrett
His mission is to make them stick to the letter
of existing laws which, he says, regulators have been too weak to enforce. He
says that the Food and Drug Administration (FDA), which oversees food safety in
the US, has merely been writing warning letters, which he thinks will not be
enough.
Taking pride of place on the wall of Mr
Barrett's office in Lexington, Mississippi is a replica of the flag carried by
the Civil War-era 11th Mississippi infantry regiment. Mr Barrett says that like
most Southerners he has a soft spot for his ancestors, who "fought so
bravely, against overwhelming numbers and resources, defending what they
thought was right".
What he himself is fighting for, he says, is
people's freedom to make a choice.
"Nobody's trying to tell the American
people what they have to eat or what they cannot eat, the American people can
make those decisions for themselves. It's all about free choice. To have free
choice you have to have accurate information. That means Big Food, the food
companies, have to start telling the truth about what's in their product. The
law requires it."
He does see similarities with the tobacco
lawsuits. "One parallel is that the American people assume that if a
product is legal to sell, then these people are telling the truth about this
product. If it's legal to sell, it must be ok, otherwise the government would
have done something about it. And that's what they thought about
cigarettes."
Part of what fires him has been rocketing rates
of obesity in young Americans. Though the upward trend is slowing, around two
thirds of Americans over the age of 20 are now obese or overweight, according
to the US Centers for Disease Control (CDC).
Around two thirds of Americans over the age of 20 are now obese or
overweight
Hidden sugars in processed food, he says, are
part of that problem, and mis-labelling is key. He cites one example, yoghurt
from the food company, Chobani Inc, which lists "evaporated cane
juice" as an ingredient.
"If you're the mother of a diabetic child
or the mother of a child that's obese, labels matter. You look for sugar you
don't want, and there's none there. What they do have is 'evaporated cane
juice'. That sounds sort of vague, and somehow healthy, and natural.
"Evaporated cane juice, if you live in
southern Louisiana or in Cuba, you understand what that is, that's sugar... The
laws have been there for ever. And they're very clear. You cannot call product
by a euphemism."
The company told Newsnight: "Chobani has
built our business on being authentic and transparent, and we fully stand
behind our products and are always listening to our consumers to make our
products better."
Mr Barrett cites another example, foods whose
labels suggest they should be kept in the fridge once opened, thus giving the
impression that they contain no preservative, and are fresher than they
actually are.
If Mr Barrett succeeds in his cases, the
industry could face substantial costs.
He claims that if the courts deem mislabelled
food products illegal to sell, those products become illegal to hold and have
no value. If a product is sold without value, the amount it was sold for is the
measure of damages, he says.
Chobani yoghurts are labelled as containing 'evaporated cane juice', also
known as sugar
His lawsuits are class actions, where the class
is defined as every person who purchased one of the misbranded products in the
previous four years.
"If it cost a dollar and 25 cents, then the
customer is entitled to his dollar and 25 cents back," he explains.
"And there's a four-year statute of limitations, so the damages in each of
these cases is how much have they sold of this misbranded junk in the last four
years."
Barrett claims that some 25% of products are
misbranded in the US. So the scale of damages in these cases could easily match
the many billions of the tobacco suits.
"It could, and will be, billions of dollars
in some cases," he says. "One of the potato chip companies that we're
suing sells $13bn (£8bn) worth of product a year."
Previous "fat" cases have centred on
false advertising claims, rather than mislabelling, which required the plaintiffs
to hire experts to prove that labels were "deceptive" to an ordinary
consumer, and such deception caused actual damages.
This has proved an expensive and uncertain
process, and such cases have tended to settle for small amounts.
Foods in the firing line
·
Don Barret is
suing the makers of over 20 products, which include:
·
Fruit juices
·
Crisps
·
Soft drinks
·
Chocolate
·
Tinned tomatoes
·
Canned fruits
·
Baby food
·
Tea
Personal injury claims are even more difficult
to prove, according to Mr Barrett.
Linking smoking to a specific disease proved
hard enough. It was only once US states brought cases based on reclaiming
medical costs, that the tobacco companies moved to settle.
Linking any one food stuff to a later medical
condition, such as diabetes, would be significantly harder.
So what is the chance that this current round of
cases might succeed?
Mr Barrett says that in the past, lawyers have
overlooked the crucial FDA labelling regulations: "The false labels
themselves are the only proof we need, and proving the damages is simple: it is
the sales of the unlawful product within the time period of the statute of
limitations - four years."
And as cases move into the discovery stage, they
could evolve, just as happened in the tobacco suits when
"smoking-gun" documents began to appear, perhaps even showing that
the food companies knew more about the impact that their products and advertising
on people's health than the general public.
And then there is emerging science linking food
and addiction, which suggests that over eating highly-palatable foods that
contain sugar, fat and salt could actually change our brains - so that we need
more and more of such foods to feel satisfied.
If this science strengthens, then the parallels
with the tobacco cases could strengthen too.
For the time being though, Mr Barrett says his
approach is enough to change industry practices: "There's one thing that
corporate America pays attention to, and that's getting hit in the pocketbook.
It's all about profit. And it's only when you affect their profit that you will
affect their behaviour, and we intend to do that."
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