Junk Food Junk Science Exposed

Much of the litigation our clients confront on a daily basis seems predicated on the philosophy that all predicaments, all injuries, must be the fault of someone else.  There is no such thing as personal responsibility; individuals need not face the consequences of choices they make. Why change your risky behavior when you can sue someone else for it?

This same approach is the foundation of the effort to remove all soda and so-called “junk foods” from our schools.  But, is the mere availability of such products in schools actually the cause of  childhood obesity -- certainly an important public health concern?

Readers may want to note a recent study published in the journal Sociology of Education.  See VanHook & Altman, Competitive Food Sales in Schools and Childhood Obesity: A Longitudinal Study, 85 Sociology of Education 23 (January 2012).

The study followed  nearly 20,000 students who started kindergarten back in 1998. The researchers recorded the students’ BMI (body mass index) in fifth grade and again in eighth grade, and correlated these data points with the availability of  junk food at their schools (like snacks, candy, and soda).  (The researchers did factor in race and ethnicity, socio-economic status, and other factors that might affect weight gain.)

Surprise, surprise?  They found no link between children’s weight and the sale of these foods in the nearly 1000 schools.  About 1/3 were overweight in schools with and schools without. This actually makes compete sense, and follows on other studies that showed when students couldn’t buy soda at school, they simply compensated by drinking more at home, before and after. See Taber, et al., Banning All Sugar-Sweetened Beverages in Middle Schools, Arch. Pediatr. Adolesc. Med. 2011; 0: 20112001-7.

Bashing food companies may make some feel better, and banning sales in schools may allow some to pat themselves on the back for a job well done, but selling these foods in school has little or nothing to do with whether children will become overweight.  The real issue is parental responsibility --  how, what, and how much parents are feeding their children at home; what eating patterns they instill, and what exercise parents encourage in their kids. Admittedly, changing parental behavior is a lot harder than banning the soda machine, but it is also the only approach likely to make a significant impact on this issue.  Regulation and litigation are not the answers.

Federal Court Dismisses Soda Misrepresentation Claim

A New Jersey federal recently dismissed a putative class action accusing The Coca-Cola Co. of misleading consumers about the health value of the carbonated beverage Diet Coke Plus.  Mason et al. v. The Coca-Cola Co., No. 09-cv-00220 (D.N.J. 3/31/11).

This is another in the series of cases we have warned readers about: plaintiffs are not injured, are not at risk of injury, have gotten the benefit of their bargain, but claim they were somehow duped by marketing. Here, plaintiffs alleged that they “were persuaded to purchase the product because the term ‘Plus’ and the language ‘Diet Coke with Vitamins and Minerals’ suggested to consumers that the product was healthy and contained nutritional value,” when it allegedly did not.

Defendants moved to dismiss under the Twombly/Iqbal doctrine.  Of course, claims alleging fraud or mistake must also meet the heightened pleading requirements of Fed. R. Civ. P. 9(b), which requires such claims to be pled with “particularity.”

To state a claim under the New Jersey Consumer Fraud Act., a plaintiff must allege: “(1) unlawful conduct by the defendants; (2) an ascertainable loss on the part of the plaintiff; and (3) a causal relationship between the defendants’ unlawful conduct and the plaintiff’s ascertainable loss.” Frederico v. Home Depot, 507 F.3d 188, 202 (3d Cir. 2007). Plaintiffs claimed that defendant committed affirmative acts of fraud and deception, and that they were persuaded to purchase the product because the term ‘Plus’ and the language ‘Diet Coke with Vitamins and Minerals’ somehow suggested to consumers that the product was healthy and contained extra nutritional value.

However, the FDA's warning letter about the product attached by plaintiffs to their own complaint shows that it is not false that Diet Coke Plus contains vitamins and minerals.  Plaintiffs failed to allege with particularity what further expectations beyond these ingredients they had for the product or how it fell short of those expectations. Plaintiffs simply made a broad assumption that defendant somehow intended for Diet Coke Plus’s vitamin and mineral content to deceive plaintiffs into thinking that the beverage was really “healthy.”  Without more specificity as to how defendant made false or deceptive statements to plaintiffs regarding the healthiness or nutritional value of the soda, the court found that plaintiffs failed to plead the “affirmative act” element with sufficient particularity to state a viable NJCFA claim.

Plaintiffs also failed to plead an ascertainable loss. When plaintiffs purchased Diet Coke Plus, they received a beverage that contained the exact ingredients listed on its label. Plaintiffs could not explain how they experienced any out-of-pocket loss because of their purchases, or that the soda they bought was worth an amount of money less than the soda they consumed. Mere subjective  dissatisfaction with a product is not a quantifiable loss that can be remedied under the NJCFA.  The same defects doomed the common law misrepresentation claims.

Although the FDA had issued the warning letter (on a somewhat arcane and technical issue), the court noted that not every regulatory violation amounts to an act of consumer fraud. The court also noted that it is simply not plausible that consumers would be aware of FDA regulations regarding “nutrient content” and restrictions on the enhancement of snack foods. The complaint actually did not allege that consumers bought the product because they knew of and attributed something meaningful to the regulatory term “Plus” and therefore relied on it. Rather, plaintiffs alleged merely that they subjectively thought they were buying a “healthy” product that happened to also apparently run afoul of a technical FDA regulation.