BBC News, 15
October 2012
The lawyers
who took on the big US tobacco companies, and won, have now set their sights on
the food industry. Newsnight's science editor, Susan Watts, asks one of them
why he has chosen this particular fight.
Don Barrett
likes his opponents powerful, and rich. He is the lawyer whose decade-long
battle to force the tobacco companies to admit they knew cigarettes are
addictive and pay the medical costs of victims was depicted in the film The
Insider.
He and his
colleagues eventually forced a settlement that cost the industry more than
$200bn (£124bn). The lawsuits made Mr Barrett a very wealthy man. But he says
it is not the potential for another big pay-out that is now making him target
"big food".
 |
| Don Barrett's battle against Big Tobacco was depicted in the Russell Crowe film The Insider |
"I'm
68 years old, frankly I don't need the cash, the law's been good to me,"
he explains. "This is my job, but here we have an opportunity to really
help people. We're not saying the food industry is the same as the tobacco
industry that kills 500,000 Americans a year, but we are saying there is an
epidemic of obesity that is affecting the overall health of the American
people."
Mr Barrett
is one of more than a dozen lawyers who has filed cases against some of the US
food industry's biggest players.
They are
not the first lawsuits to target food manufacturers. For nearly a decade, US
lawyers have pursued a variety of approaches to try to persuade fast food
chains to produce healthier, more nutritious food, but these are being seen as
some of the most aggressive, despite the simplicity of their approach.
Mr
Barrett's case against Big Food is that companies are misrepresenting their
products, promoting them as "natural" or "healthy", when in
fact, he says, they are no such thing.
His mission
is to make them stick to the letter of existing laws which, he says, regulators
have been too weak to enforce. He says that the Food and Drug Administration
(FDA), which oversees food safety in the US, has merely been writing warning
letters, which he thinks will not be enough.
Taking
pride of place on the wall of Mr Barrett's office in Lexington, Mississippi is
a replica of the flag carried by the Civil War-era 11th Mississippi infantry
regiment. Mr Barrett says that like most Southerners he has a soft spot for his
ancestors, who "fought so bravely, against overwhelming numbers and
resources, defending what they thought was right".
What he
himself is fighting for, he says, is people's freedom to make a choice.
"Nobody's
trying to tell the American people what they have to eat or what they cannot
eat, the American people can make those decisions for themselves. It's all
about free choice. To have free choice you have to have accurate information.
That means Big Food, the food companies, have to start telling the truth about
what's in their product. The law requires it."
He does see
similarities with the tobacco lawsuits. "One parallel is that the American
people assume that if a product is legal to sell, then these people are telling
the truth about this product. If it's legal to sell, it must be ok, otherwise
the government would have done something about it. And that's what they thought
about cigarettes."
Part of
what fires him has been rocketing rates of obesity in young Americans. Though
the upward trend is slowing, around two thirds of Americans over the age of 20
are now obese or overweight, according to the US Centers for Disease Control
(CDC).
 |
| Around two thirds of Americans over the age of 20 are now obese or overweight |
Hidden
sugars in processed food, he says, are part of that problem, and mis-labelling
is key. He cites one example, yoghurt from the food company, Chobani Inc, which
lists "evaporated cane juice" as an ingredient.
"If
you're the mother of a diabetic child or the mother of a child that's obese,
labels matter. You look for sugar you don't want, and there's none there. What
they do have is 'evaporated cane juice'. That sounds sort of vague, and somehow
healthy, and natural.
"Evaporated
cane juice, if you live in southern Louisiana or in Cuba, you understand what
that is, that's sugar... The laws have been there for ever. And they're very
clear. You cannot call product by a euphemism."
The company
told Newsnight: "Chobani has built our business on being authentic and
transparent, and we fully stand behind our products and are always listening to
our consumers to make our products better."
Mr Barrett
cites another example, foods whose labels suggest they should be kept in the
fridge once opened, thus giving the impression that they contain no
preservative, and are fresher than they actually are.
If Mr
Barrett succeeds in his cases, the industry could face substantial costs.
He claims
that if the courts deem mislabelled food products illegal to sell, those
products become illegal to hold and have no value. If a product is sold without
value, the amount it was sold for is the measure of damages, he says.
 |
| Chobani yoghurts are labelled as containing 'evaporated cane juice', also known as sugar |
His
lawsuits are class actions, where the class is defined as every person who
purchased one of the misbranded products in the previous four years.
"If it
cost a dollar and 25 cents, then the customer is entitled to his dollar and 25
cents back," he explains. "And there's a four-year statute of
limitations, so the damages in each of these cases is how much have they sold
of this misbranded junk in the last four years."
Barrett
claims that some 25% of products are misbranded in the US. So the scale of
damages in these cases could easily match the many billions of the tobacco
suits.
"It
could, and will be, billions of dollars in some cases," he says. "One
of the potato chip companies that we're suing sells $13bn (£8bn) worth of
product a year."
Previous
"fat" cases have centred on false advertising claims, rather than
mislabelling, which required the plaintiffs to hire experts to prove that
labels were "deceptive" to an ordinary consumer, and such deception
caused actual damages.
This has
proved an expensive and uncertain process, and such cases have tended to settle
for small amounts.
 |
Foods in the firing line
Don Barret is suing the makers
of over 20 products, which include:
- Fruit juices
- Crisps
- Soft drinks
- Chocolate
- Tinned tomatoes
- Canned fruits
- Baby food
- Tea
|
Personal
injury claims are even more difficult to prove, according to Mr Barrett.
Linking
smoking to a specific disease proved hard enough. It was only once US states
brought cases based on reclaiming medical costs, that the tobacco companies
moved to settle.
Linking any
one food stuff to a later medical condition, such as diabetes, would be
significantly harder.
So what is
the chance that this current round of cases might succeed?
Mr Barrett
says that in the past, lawyers have overlooked the crucial FDA labelling
regulations: "The false labels themselves are the only proof we need, and
proving the damages is simple: it is the sales of the unlawful product within
the time period of the statute of limitations - four years."
And as
cases move into the discovery stage, they could evolve, just as happened in the
tobacco suits when "smoking-gun" documents began to appear, perhaps
even showing that the food companies knew more about the impact that their
products and advertising on people's health than the general public.
And then
there is emerging science linking food and addiction, which suggests that over
eating highly-palatable foods that contain sugar, fat and salt could actually
change our brains - so that we need more and more of such foods to feel
satisfied.
If this
science strengthens, then the parallels with the tobacco cases could strengthen
too.
For the
time being though, Mr Barrett says his approach is enough to change industry
practices: "There's one thing that corporate America pays attention to,
and that's getting hit in the pocketbook. It's all about profit. And it's only
when you affect their profit that you will affect their behaviour, and we
intend to do that."
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