Legal News

Like Calorie Counts and Nutritional Facts? Thank Lawyers

By Ashby Jones

Do consumers need help from lawyers and regulators in deciding what to eat?

Maybe, maybe not, but increasingly, help is coming consumers’ way, writes the WSJ’s Nathan Koppel in an article out on Thursday.

As Americans have grown more health-conscious, writes Koppel, the country has seen a surge in litigation against food companies for allegedly selling unhealthy products and for misrepresenting their products’ nutritional value.

Such litigation — or at least the threat of it — has caused some food distributors in recent years to adopt a host of health-promoting steps, like reducing their use of trans fats, limiting marketing of sugary products to children, and toning down boasts about their products’ nutritional value.

Attorneys who wage food fights say they are largely on a mission about truth in advertising: making sure people get the straight facts about what they are eating. Without the threat of litigation, “food companies will try to sell stuff without telling people the whole truth about what they are eating,” says New York plaintiffs’ attorney Seth Lesser, who has filed food litigation alleging deceptive marketing.

The influence of the litigation push in prompting changes owes partly to some courts rejecting food makers’ preemption arguments, arguments that regulation should be in the exclusive hands of the federal government. In February, for instance, the Second U.S. Circuit Court of Appeals upheld a 2008 New York City law requiring chains such as McDonald’s and Kentucky Fried Chicken to post calorie information on their menus, over the objection of the New York State Restaurant Association, which claimed the law was preempted by federal food regulations.

Lawyers who represent food companies defend the so-called pre-emption argument. Their clients, after all, are already monitored by the Food and Drug Administration, which requires food makers to provide “nutrition facts,” such as fat grams per serving, on most products.

Others have broader objections to the trend. Attorney Louis Solomon, who represented PepsiCo in the Aquafina suit, says food litigation is part of a larger “paternalization of society,” adding that such litigation “in effect, says the masses aren’t intelligent enough to understand what they are buying.”

Full post as published by Law Blog - WSJ.com on April 09, 2009 (boomark / email).