The “Food Wars” and the Courts

Concerns over ultra-processed foods (UPFs) and their responsibility for rising rates of chronic disease and obesity have been highlighted in the medical literature and in the popular press. The search for appropriate responses to the adverse impacts of “Big Food” and its products has prompted comparison to actions taken to curb “Big Tobacco” decades ago. Echoing successful anti-tobacco initiatives, proposals to curb UPF consumption include stronger labeling, increased taxes, regulation of junk food marketing to children, and aggressive public awareness campaigns.

The success of the anti-tobacco effort has, however, often been attributed to litigation by private plaintiffs and states against the tobacco companies, culminating in a master settlement agreement in 1998 between the cigarette manufacturers and the attorneys general of 46 states, five U.S. territories, and the District of Columbia. The settlement compelled the tobacco companies to pay billions of dollars to the states to compensate them for Medicaid costs incurred by smokers, placed limits on tobacco advertising, and funded public information efforts.

Litigation against the manufacturers of UPFs has not played as large a role in combatting the impact of these foods on the public’s health—at least not yet. Recent case filings against the food industry signal that lawsuits could become a more important part of the anti-UPF arsenal. Two recent cases reflect alternative approaches to holding the food industry accountable.

Bryce Martinez v. Kraft Heinz Company, Inc. et al., filed Dec. 10, 2024 (subsequently removed to federal court, Eastern District of Pennsylvania): Bryce Martinez was diagnosed as a 16-year-old with Type 2 Diabetes and Non-Alcoholic Fatty Liver Disease, conditions that the complaint asserts had been “largely confined to elderly alcoholics.” Eleven major manufacturers of ultra-processed food products were named in the litigation, including Kraft Heinz, Coca-Cola, Pepsico, General Mills, Nestle, Kellogg and Mars. The complaint details the dominance of UPF in the American diet and the evidence that UPF consumption increases the risks of obesity, diabetes, cancers, dementia, and a host of other chronic illnesses. It contends that UPFs have been intentionally designed and marketed to be “hyper palatable” or addictive to consumers—just like cigarettes.

The similarities between UPFs and cigarettes are not coincidental: As the complaint describes, during the latter half of the 20^th Century, Big Tobacco companies like RJ Reynolds and Philip Morris acquired large food manufacturers, such as Nabisco, Del Monte and Kraft. They employed their tobacco experience to maximize the addictiveness of their food portfolios and utilized their tobacco marketing strategies to target children and other vulnerable populations.

Internal documents referenced in the complaint show that Big Food knew what it was doing. Just six months after the Tobacco Master Settlement was executed, the CEOs of major food companies met to discuss the potential legal threats facing the industry. Noting the explosion in rates of obesity and chronic diseases among children caused by “the ubiquity of inexpensive, good-tasting, super-sized, energy-dense foods,” a presentation warned the CEOs that their companies could face a wave of litigation akin to the onslaught against Big Tobacco.

The warning went unheeded and, according to the complaint, Bryce Martinez fell prey to UPF marketing and regularly consumed more than 100 identified UPF products made by the defendants. The complaint alleges that the UPF defendants:

• were negligent in not exercising reasonable care in the manufacturing of their products and failed to warn consumers of their risks;
• breached their warranties of safety and fitness and misrepresented the characteristics of UPFs;
• fraudulently concealed the products’ defects;
• violated unfair trade practice and consumer protection statutes; and
• unjustly enriched themselves through the sales of these foods.

Monica Castro, et al. v. Abbott Laboratories, U.S. District Court, Northern District of Illinois (filed Jan. 14, 2025). This very different lawsuit targets two products, “Go & Grow Toddler Drink by Similac” and “Pure Bliss Toddler Drink by Similac,” which are manufactured and marketed by Abbott Laboratories to be consumed by children one year of age or older, who have “graduated” from breastfeeding or infant formula. “Toddler milks” have been criticized by professional and scientific organizations, such as the American Academy of Pediatrics and the World Health Organization, for containing high levels of saturated fat, sodium and sweeteners, including sugar. Although cow’s milk or water are the recommended options for young children, toddler milk products sales tripled in the United States between 2005 and 2015, and, according to the complaint, have been estimated to generate one half billion dollars in sales in recent years.

The complaint focuses on the unfair and deceptive marketing of these products. The toddler milk packaging, nearly indistinguishable from Abbott’s infant formula, claims that the products enhance “Immune Support,” “Brain Development” and “Digestive Health” and are labeled as “stage 3” to imply falsely that they are the recommended next product for children after they outgrow “stage 1” infant formula and “stage 2” supplemental formula. The plaintiffs seek to enjoin the continued false advertising of these products, to require a corrective advertising campaign, to reimburse the class for their purchases—which cost $30 or more per can—and to award additional compensatory and punitive damages.

The potential impact of the litigation

The plaintiff in the Martinez case faces some daunting challenges, not the least of which is the combined legal artillery marshaled by the world’s largest food companies. He will need to document exactly which and how much of the more than 100 identified UPF products he consumed and to prove that consuming these products actually caused his medical issues. The fact that these products ostensibly comply with existing FDA requirements will be cited by defendants, along with caselaw that protects commercial speech under the First Amendment.

The toddler milk case may sidestep these causation challenges. Rather than having to prove that the products actually caused harm, the plaintiffs in the toddler milk case may only need to prove that false claims led them to purchase these pricey products.

Neither of these cases was brought by State Attorneys General, who can advance broader public health claims and remedies, as evidenced by the tobacco litigation. The filing of these cases may, however, prompt one or more State Attorneys General to do so. Moreover, whether or not the plaintiffs ultimately prevail in these cases, the litigation could prove to be highly consequential. If the Martinez case proceeds to the discovery stage, additional evidence might be uncovered that shows that the food industry knew of the harms caused by these products—evidence that might encourage State Attorneys General to enter the fray and embolden policy makers to enact stronger regulation of these foods.

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About the Author

Prior to his retirement in 2023, Jim Lytle was a partner in the Albany, New York City and Boston offices of Manatt, Phelps & Phillips, where he counseled, lobbied and litigated on behalf of healthcare clients. He served as Assistant Counsel for Health and Human Services to Governor Mario M. Cuomo, and was an Adjunct Professor at New York Medical College Public Health Ph.D. program, SUNY Albany School of Public Health, and NYU Law School.  He was a Fellow in Harvard’s Advanced Leadership Initiative, has been a guest lecturer at Harvard Law School and serves on the Advisory Board for the Petrie-Flom Center.