Demonization By Litigation: Food Ingredient Makers Face Frivolous Charges - Forbes
Glenn G. Lammi
, Contributor
When some future legal scholar writes the history of how the public health activist-plaintiffs’ bar-government regulator axis of paternalism tried to use litigation to alter America’s food choices, S.F. v. Archer Daniels Midland ADM +0.99% et al.may
not even merit a mention. But for now, it stands as the most notorious
illustration of how a baseless lawsuit can effectively demonize one
disfavored food ingredient.
The Complaint. S.F.
is the mother of S.E.F., a fourteen-year old who suffers from Type 2
diabetes. Archer Daniels Midland (ADM) and the other three defendants (Cargill , Ingredion INGR -0.25% Inc., and Tate & Lyle
Ingredients Americas) make up the entire corn refiners industry. They
refine corn into, among other things, high fructose corn syrup (HFCS), a
food ingredient public health activists have long vilified. In her
complaint, S.F. rattled off inflammatory allegation after another,
including such unsubstantiated charges as “HFCS is a toxin.” She
eventually got around to asserting that HFCS is “unreasonably dangerous”
and caused her daughter’s diabetes. She demanded $5 million in damages.
The suit achieved its immediate, and perhaps only, goal of garnering
sympathetic media attention. Most reports parroted the plaintiff’s
outlandish statements and quoted professional food activists who are
attacking HFCS in others venues, such as before the Food and Drug
Administration (FDA). Of course only scant reporting has been done on
the suit since, with just a few stories in the trade press about the
defendants’ motions to dismiss, documents which have effectively exposed
the suit as legally and factually baseless.
Undeniable Legal Flaws. The legal flaws in the plaintiff’s case, detailed in the defendants’ initial motion to dismiss and their November 1 reply memo, are abundant and clear, so we’ll only briefly summarize them here:
to the plaintiff’s motion to amend her complaint. How often does one
read a legal document that references Darth Vader, Superman, Stephen
Colbert, Men In Black (1 and 3), and smoking grass? All those
references arise in the context of the defendants’ dismantling of the
plaintiff’s proposed expert, celebrity anti-sugar crusader Dr. Robert
Lustig.
Dr. Lustig believes that “sugar is the most destructive force in the
universe” (a point that the defendants ridicule in footnote 7 with a Men in Black
reference). Dr. Lustig’s past writings also inconveniently reflect his
scientific opinion that HFCS “and sucrose are, for all intents and
purposes, biochemically and metabolically equivalent.”
In his affidavit for plaintiff S.F., Dr. Lustig asserts that the
“dietary fructose from HFCS is metabolized differently from sugar
(sucrose).” Why the sudden conversion on HFCS? Perhaps, as the
defendants argue, Dr. Lustig saw S.F.’s case as an opportunity to, as he
wrote in his book Fat Chance, “us[e] the judiciary to moderate
sugar consumption.” The lawsuit would certainly advance the goals of
Dr. Lustig’s advocacy group, Institute for Responsible Nutrition.
Dismiss Prejudicially and Sanction. S.F. v. ADM et al. isn’t
the first time a plaintiff with an allegedly diet-related ailment
directed blame and legal firepower on one target. In 2003, an obese and
diabetes-afflicted teenager filed a class-action lawsuit against McDonald's MCD +0.45% on grounds similar to those in S.F.’s suit against the corn refiners. Pelman v. McDonald’s should have been dismissed immediately, but indulgent federal judges allowed it to drag on until 2010, when class certification was finally denied.
Despite the court loss, public health activists delighted in the fact
that McDonald’s had to spend millions in legal fees and made some public
relations concessions, like adding “healthy” items to its menu that
customers largely ignored.
Judge Skretny, who is presiding over S.F. v. ADM et al., can
cite numerous legal grounds for dismissing the suit. He should do so
with prejudice and should also seriously consider invoking his inherent
powers and sanction the plaintiff and her lawyers for filing such
frivolous claims. The judge does not have to explicitly state that he is
doing so to send a message to activists who waste (taxpayer-funded)
judicial resources when they abuse the court system to demonize a
defendant and advance a cause.
But that’s exactly why he should do it.
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Glenn G. Lammi
, Contributor
not even merit a mention. But for now, it stands as the most notorious
illustration of how a baseless lawsuit can effectively demonize one
disfavored food ingredient.
The Complaint. S.F.
is the mother of S.E.F., a fourteen-year old who suffers from Type 2
diabetes. Archer Daniels Midland (ADM) and the other three defendants (Cargill , Ingredion INGR -0.25% Inc., and Tate & Lyle
Ingredients Americas) make up the entire corn refiners industry. They
refine corn into, among other things, high fructose corn syrup (HFCS), a
food ingredient public health activists have long vilified. In her
complaint, S.F. rattled off inflammatory allegation after another,
including such unsubstantiated charges as “HFCS is a toxin.” She
eventually got around to asserting that HFCS is “unreasonably dangerous”
and caused her daughter’s diabetes. She demanded $5 million in damages.
The suit achieved its immediate, and perhaps only, goal of garnering
sympathetic media attention. Most reports parroted the plaintiff’s
outlandish statements and quoted professional food activists who are
attacking HFCS in others venues, such as before the Food and Drug
Administration (FDA). Of course only scant reporting has been done on
the suit since, with just a few stories in the trade press about the
defendants’ motions to dismiss, documents which have effectively exposed
the suit as legally and factually baseless.
Undeniable Legal Flaws. The legal flaws in the plaintiff’s case, detailed in the defendants’ initial motion to dismiss and their November 1 reply memo, are abundant and clear, so we’ll only briefly summarize them here:
- S.F. cannot demonstrate that HFCS alone was a substantial cause of
her diabetes. “Millions of people eat HFCS every year without becoming
diabetic.” - S.F. makes no attempt to connect any particular defendant to the
HFCS she consumed, and she cannot utilize market-share liability theory
under New York law. - Overconsumption of food can rarely provide the basis for liability,
and HFCS presents no unknown danger different from the fructose in
other sugars. - The defendants cannot be held liable for failure to warn of the
supposed dangers of HFCS. As a mere ingredient provider, ADM et al. is
incapable of affixing warning labels to the multitude of products (made
by other companies) that contain HFCS. - The plaintiff’s claims are preempted because federal law dictates
the design of HFCS and FDA recognizes it as “Generally Regarded as
Safe.”
to the plaintiff’s motion to amend her complaint. How often does one
read a legal document that references Darth Vader, Superman, Stephen
Colbert, Men In Black (1 and 3), and smoking grass? All those
references arise in the context of the defendants’ dismantling of the
plaintiff’s proposed expert, celebrity anti-sugar crusader Dr. Robert
Lustig.
Dr. Lustig believes that “sugar is the most destructive force in the
universe” (a point that the defendants ridicule in footnote 7 with a Men in Black
reference). Dr. Lustig’s past writings also inconveniently reflect his
scientific opinion that HFCS “and sucrose are, for all intents and
purposes, biochemically and metabolically equivalent.”
In his affidavit for plaintiff S.F., Dr. Lustig asserts that the
“dietary fructose from HFCS is metabolized differently from sugar
(sucrose).” Why the sudden conversion on HFCS? Perhaps, as the
defendants argue, Dr. Lustig saw S.F.’s case as an opportunity to, as he
wrote in his book Fat Chance, “us[e] the judiciary to moderate
sugar consumption.” The lawsuit would certainly advance the goals of
Dr. Lustig’s advocacy group, Institute for Responsible Nutrition.
Dismiss Prejudicially and Sanction. S.F. v. ADM et al. isn’t
the first time a plaintiff with an allegedly diet-related ailment
directed blame and legal firepower on one target. In 2003, an obese and
diabetes-afflicted teenager filed a class-action lawsuit against McDonald's MCD +0.45% on grounds similar to those in S.F.’s suit against the corn refiners. Pelman v. McDonald’s should have been dismissed immediately, but indulgent federal judges allowed it to drag on until 2010, when class certification was finally denied.
Despite the court loss, public health activists delighted in the fact
that McDonald’s had to spend millions in legal fees and made some public
relations concessions, like adding “healthy” items to its menu that
customers largely ignored.
Judge Skretny, who is presiding over S.F. v. ADM et al., can
cite numerous legal grounds for dismissing the suit. He should do so
with prejudice and should also seriously consider invoking his inherent
powers and sanction the plaintiff and her lawyers for filing such
frivolous claims. The judge does not have to explicitly state that he is
doing so to send a message to activists who waste (taxpayer-funded)
judicial resources when they abuse the court system to demonize a
defendant and advance a cause.
But that’s exactly why he should do it.
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