The “Food Wars” and the Courts, Part II

In a prior post, I discussed litigation (Martinez v. Kraft Heinz Company, et al.) against 11 manufacturers of ultra-processed foods (UPFs) for causing a 16-year-old to develop Type 2 Diabetes and Fatty Liver Disease. I wondered whether the case might “signal that lawsuits could become a more important part of the anti-UPF arsenal,” emulating the profound consequences of anti-tobacco litigation several decades ago — while acknowledging that proving that UPFs actually caused illness to any specific person could be challenging. 

The Martinez case was, in fact, dismissed last summer for failing to allege sufficient facts to show that the consumption of these products caused the teenager’s disease. The court observed that the “Plaintiff does not allege how often he consumed Defendants’ products, in what amounts, or when.”  

Undaunted, in March of 2026, the firm that brought the Martinez case — Morgan & Morgan, which describes itself as the largest personal injury law firm in the country — commenced a new case in federal court against the UPF companies. This case (Ford v. Kraft Heinz Company, et al.) was brought on behalf of a 14-year-old with Type 2 Diabetes against essentially the same defendants, deleting only Kellanova (maker of products like Pringles® and Cheez-It®), which was acquired by co-defendant Mars, Inc. in December, 2025. The Ford complaint reiterates many of the same factual and legal claims as the Martinez complaint but details the frequency with which the plaintiff consumed specific UPF products. At 321 pages and more than 1,700 paragraphs, the complaint weighs in at more than twice the size of the complaint in the earlier case. Whether this additional detail will allow this case to survive the inevitable motions to dismiss remains to be seen.

In December of 2025, the San Francisco City attorney (along with Morgan & Morgan as co-counsel) initiated a case (Chiu v. Kraft Heinz, et al.) against the same defendants. Although many of the factual allegations were similar to the allegations in the Martinez and Ford cases, the legal theory of the Chiu case is vastly different, reflecting the role of a governmental, rather than private, plaintiff. Rather than basing the lawsuit on the harm done by UPFs to specific individuals, the Chiu case is premised on the harm to the public:

Defendants did everything in their power to deprive consumers of an informed choice. They designed food to be addictive, they knew the addictive food they were engineering was making their customers sick, and they hid the truth from the public. They relentlessly promoted these dangerous products, made untold billions of dollars from doing so, and then they left taxpayers to foot the bill for the resulting public health crisis. (Chiu v. Kraft Heinz, ¶11).

The case cites the California Unfair Competition Law and its prohibition of unfair and deceptive conduct and asserts that the defendants concealed the adverse health impacts of UPFs, advertised UPFs as healthy, and promoted UPFs to children. 

In addition, the case asserts that the UPF companies have caused a “public nuisance,” defined as “anything which is injurious to health” and that “affects at the same time an entire community or neighborhood, or any considerable number of persons.” (California Civil Code §§ 3479-3480). California law empowers, among others, a city attorney to assert a public nuisance claim. (California Code of Civil Procedure, § 731). The case seeks “abatement of the public nuisance plaguing the City and County of San Francisco,” including “consumer education on the health risks of ultra-processed foods, . . .subsidies for distribution of real food where Defendants’ actions have wrongfully limited such access and limiting advertising and marketing of UPF to children and vulnerable adults.” (Complaint, ¶256.) 

By pursuing these claims, the Chiu case avoids having to prove that specific UPFs were consumed in certain amounts by specific people and caused specific adverse health outcomes — and is, as a result, similar to the toddler milk case (Castro v. Abbott Laboratories) referenced in the prior posting, which is also premised on the unfair and deceptive advertising of unhealthy food. A recent ruling in that matter denied most of the motions to dismiss by Abbott Laboratories and that case will proceed. 

In the meantime, regulatory and legislative actions, highlighted by the “Make America Healthy Again” (MAHA) Commission, have also targeted UPFs. HHS Secretary Robert F. Kennedy Jr. has promised to define UPFs and to require front of package warnings for foods that meet that definition. The latest version of the federal dietary guidelines urge Americans to “avoid highly processed, prepared, ready-to-eat” foods. 

States have begun to initiate their own efforts to curb UPF consumption, particularly in schools. Former FDA Commissioner David Kessler filed a petition with the FDA that “focuses on processed refined carbohydrates in an environment of ultra-processed food” and seeks to overturn the finding from half a century ago that these substances were “generally recognized as safe” and not subject to FDA’s premarket approval. In Congress, Senator Bernie Sanders introduced legislation that would require warning labels on UPFs and restrict junk food advertising and a similar House bill would do likewise. 

As was noted recently by leading food policy experts, the MAHA Commission does not need to “reinvent the wheel”: “An effective framework already exists, supported by robust scientific research, and has saved millions of lives. The [MAHA] Commission’s food policy strategy should be modeled on the nation’s response to tobacco.” And that should include robust litigation to hold the industry accountable for its adverse public health impacts, a critical component of the war on tobacco.  

Only time will tell whether these recently filed cases may be the beginning of a successful legal strategy against these large food companies, comparable to the public and private litigation that had such a profound impact on the tobacco industry.