The debate on sugars and fats in our food and drink rages on. This has led to comparisons with tobacco and concerns food and drink manufacturers or retailers may be faced with US-style class actions as a result of obesity-linked diseases.
However, analogies with tobacco fall apart upon closer view. There is no safe use of cigarettes. Tobacco litigation in the US was successful because of the medical evidence of the link between smoking and certain diseases. There has never been a successful smoking-related claim in the UK, due partly to difficulties with medical evidence and as a result of claims being time-barred in most cases.
In the case of sugar, one major hurdle for claimants is there is no clearly established direct causal link between specific sugary foods and drinks and specific obesity linked illnesses. For claims to succeed, there would need to be incontrovertible scientific evidence that a particular product caused a specific illness, such as diabetes or heart disease. Test cases in the US against food and drink companies have tended to fail for this reason.
“One approach is to argue hidden sugars prevent informed choices”
However, US lawyers are exploring innovative new grounds on which to base claims. One approach is to argue “hidden sugars” prevent consumers from making informed purchasing choices, and they should be entitled to recover the (often substantial) sums they spent on such products, along with punitive damages. This avoids getting bogged down in scientific evidence, since the impact on health doesn’t actually come into it.
In the past few months, several class action lawsuits have been filed in a number of US states against Whole Foods Market, claiming its 365 Everyday Value Plain Greek Yogurt understated the amount of sugar it contains. The label states 2g of sugar per serving, whereas recent consumer tests have shown as much as 11.4g. The multimillion-dollar claims argue that, had the label not omitted important information about nutritional content, the claimants would not have purchased it.
Other recent cases have focused on descriptions of products as ‘all natural’, where the definition of ‘natural’ may be open to interpretation. The outcomes of these cases tend to be fact-specific, with some companies agreeing a settlement without admission of liability and promising to amend their labelling, and others able to successfully strike out the claims.
Another approach being investigated is that of trying to establish that certain products or ingredients are addictive, and that food and drink businesses either know this or are negligent in failing to pick it up. But this still leaves claimants with difficulties in establishing that the ingredient alone caused the illnesses, rather than their lifestyle choices or genetic predisposition.
We have yet to see if any successful trends emerge from the US. In the meantime, you can protect your business by complying with all regulatory requirements, as well as any reasonable voluntary codes. In particular, it is essential consumers are clearly informed about what is in the products they purchase.
Mark Rhys-Jones is a partner at Eversheds
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