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Big food companies should start to worry about tobacco-like lawsuits

A pile of sugar
Getty Images / Tobias Helbig
All the ingredients for a glut.
Published This article is more than 2 years old.

The first people in America to say smoking was bad for your health were greeted with derision and called quacks. Even while studies emerged in the 1950s linking smoking to various ailments including lung cancer and heart disease, tobacco supporters (nearly half of Americans smoked back then) questioned whether anti-smoking campaigners detracted from more serious attempts to get at the real causes of these diseases. Robert Lustig, a pediatrician and author of a book out last week, Fat Chance, is sympathetic. He’s heard it all before.

He wants sugar (both the table variety and high-fructose corn syrup) regulated like alcohol. He wants products full of sugar to get health warnings, like on cigarette packs. Sugar, he says, is toxic in high doses, and should be treated as such. It’s also making us really fat.

Excess sugar turns into liver fat and that fat makes the liver more resistant to insulin, he explains. The pancreas, which makes insulin, then has to make more. This raises insulin levels in the blood stream, and forces energy into fat, which causes weight gain. Then there’s the effect on the brain. High insulin levels block actions on the hormone leptin, which tells the brain when the body has had enough to eat. People who eat lots of sugar are told by their brains that they are still hungry and so keep eating.

Lustig says that food companies know this and that’s why there’s more sugar than ever before in our processed foods. The more sugar foods contain, the more consumers will eat. Here is a (rather long) video of him explaining the science at greater length.

Lustig’s research started in 1995 while working as a pediatric endocrinologist at St. Jude Children’s Research Hospital in Tennessee. He noticed that children whose hypothalamuses were damaged, following neurosurgery to remove tumors, started producing too much insulin and became lethargic and fat. He prescribed a drug to block the insulin and the children ate less, became more active and lost weight. He says the weight loss was the result of the drug (i.e., a hormonal change), not the change in behavior. Since then Lustig has done four studies, two with children and two with adults, to verify the phenomenon. He has concluded that the obesity problem is not about our couch potato tendencies but about the amount of sugar Americans consume, which he says is double what it was two decades ago.

Lustig has plenty of critics (he claims that many of them work for the food industry). Some question a lack of original research, the theories themselves, and his penchant for grandstanding. He says they’re vilifying the messenger, and he’s just a doctor who is using science to try to stop kids from getting fat and fix America’s health care system. “It’s very clear to me that we have to do something because by 2024 Medicare will be broke. 75% of our health expenditures are for chronic diseases,” he says. “By others’ estimates, 75% of those could be preventable. We could recoup up to $192 billion in health care costs. It’s often said that we wouldn’t need health care reform if we had obesity reform. And so we need to do something.”

Send in the lawyers

Lawyers are only too happy to oblige. Many would love to find a smoking gun (as with tobacco companies)—an internal memo from a food company, say, verifying that sugar is addictive and bad for your health. In the meantime, they’ll settle for what they can get.

Don Barrett, a Mississippi lawyer, made his name—and his fortune—in tobacco litigation. Now he and a group of lawyers hope for a Big-Tobacco-like victory over Big Food. His approach isn’t to focus on the health risks, though, as some suits have done—think of the rejected no-fruit-in-Froot-Loops claims. Instead, Barrett and a group of lawyers have filed 25 class-action suits against companies such as ConAgra Foods, PepsiCo, Heinz, and General Mills that take aim at something very specific: mislabeled products that violate FDA regulations saying companies must disclose what’s in their products. “It’s not our job to tell the American people what they ought to eat, or that they can’t eat this or they must eat that,” says Barrett. “What we want to do is see that the American people get accurate information.”

This fight, he says, is far easier than trying to prove things aren’t healthy. He doesn’t need to line up an exhaustive list of health experts (though Lustig is one of his experts) to prove the products caused harm. He says that companies will settle these cases for “chump change”, and write them off as the cost of doing business. Mislabeling cases are potentially far more lucrative, he says.

One such class-action suit filed last spring is against Chobani Yogurt, which Barrett accuses of calling sugar “evaporated cane juice” to confuse consumers. “It’s just a made-up name for sugar, and it’s deceptive,” he says. “It’s even kind of funny, though not to the mother of a child with juvenile diabetes.” The case is still in the early stages, and a spokeswoman for Chobani has called the lawsuit ”frivolous” and “without merit”.

Barrett says he and others plan to file many more cases like this one. “If a food product is misbranded, it is unlawful to sell and therefore has no value.” He says the company owes consumers their money back, and that these cases could return hundreds of millions of dollars.

Some call Barrett an opportunist seeking his next windfall, and it might seem a big leap from his narrow focus on product labels to a broader case about the harmful effects of sugar. But if Lustig is right about those effects, these lawsuits could make a difference. Surprising things turn up during discovery periods, some of which could prove more damaging (and lawsuit-worthy) than inaccurate labels.

Lustig calls these legal efforts “valuable and useful,” but adds that “ultimately it doesn’t really change what’s in the diet and it’s not going to fix obesity.” In the meantime, he’s getting a masters degree from Hastings College of the Law, at the University of California. He says he wants to learn “what brings a personal responsibility issue (like smoking) to a public health crisis, what it takes to get government involved, and what legal avenues are available for being able to get the food industry to ‘do the right thing’.”

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