Emerging Issues in the U.S. Samuel B. Sebree

Transcript:Emerging Issues in the U.S. Samuel B. Sebree:
Emerging Issues in the U.S. Samuel B. Sebree Shook, Hardy & Bacon LLP March 19, 2013 Emerging U.S. Issues Food Under Fire Applying the “Big Tobacco” litigation template to food manufacturers Immediate Future of the Alien Tort Statute Does it apply to corporations? Does it apply to conduct occurring outside the U.S.? 2 Food Litigation: What We Know Already 3 Crunch Berries are NOT a fruit. The Tobacco Template “Iron Triangle” Plaintiff’s lawyers File litigation; Discovery documents; Identify whistleblowers; Public Officials File litigation; Begin investigations; Use media contacts to publicize themes Media Publicize “leaked” documents; Favorable articles on “health” champions Goal Blame a multi-factorial health problem on a single industry Demonize industry Isolate the industry Publicize the demonization – social media, conventional media Taint the industry’s image in the minds of legislators, politicians, regulators, the public Key Themes Youth Marketing Addiction 4 The Template in Action: Plaintiff’s Counsel 5 2012 Strom, “Lawyers from Big Tobacco Target the Food Industry” Hicks, “Big Tobacco and Big Food: The Analogy Continues” Laskawy, “Lawyers Go After Processed Food Industry with Tactics That Worked in Big Tobacco” Levick, “Tobacco Lawyers Set Their Sights on the Grocery Store” “The Lawyers who took on Big Tobacco decided the time was ripe to go after “Big Food” The Template in Action: Plaintiff’s Counsel 40+ federal consumer class actions in 2012 Typical claim: Misbranded food products Products labeled “0 grams trans fat” contain fat Products labeled “100% natural” contain chemical preservatives, synthetic chemicals, artificial colors, other artificial ingredients Causes of Action Unfair/unlawful business practices Misleading/deceptive/fraudulent business practices Key initial hurdle: Surviving motion to dismiss May open door to document discovery Claims will evolve as documents come out 6 The Template in Action: Public Officials 7 The Media Key Themes: Obesity & Addiction February 2013: PubMed lists 1300+ studies addressing alleged “food addiction” or “science.” Almost 500 studies relate to obesity and addiction. Processed foods and sugary drinks “can hijack the brain in ways that resemble addictions to cocaine, nicotine and other drugs.” Langreth and Stanford ,“Fatty Foods Addictive as Cocaine in Growing Body of Science” (2011) “The data is so overwhelming the field has to accept it. We are finding tremendous overlap between drugs in the brain and food in the brain.” - Dr. Nora Volkow 9 Obesity “Food is obviously different from tobacco, and the food industry differs from tobacco companies in important ways, but there also are