Last week’s ruling that stopped an experimental lawsuit that aims to hold large companies liable for alleged health effects of ultra-processed foods should boost dismissal efforts in other cases.
And getting out of these lawsuits early would certainly be beneficial for defendants like General Mills, whose insurers are refusing to pay for the costs of defending at least seven cases. It and other companies like Kraft Heinz, Nestle and Coca-Cola are now hoping a Florida federal judge will agree with Philadelphia judge Mia Roberts Perez’s decision to throw out the first case filed by Morgan & Morgan.
She said last week that a lawsuit blaming various companies and 179 products for a plaintiff’s Type 2 diabetes was far too vague. She’d previously called the case “woefully deficient,” and Orlando judge Julie Sneed seems to be the next to be asked to toss a UPF lawsuit.
“Plaintiff’s complaint is a classic shotgun pleading of the type the Eleventh Circuit routinely condemns,” defendants told her June 17 in a motion to dismiss that is still pending.
“Rather than set forth each individual defendant’s alleged misconduct, most of the complaint’s more-than 880 paragraphs contain undifferentiated allegations about ‘the UPF industry’ or ‘Defendants’ collectively.
“This does not give the companies sued here adequate notice of the specific products, statements or conduct that Plaintiff seeks to put at issue – and it is not sufficient to state a claim under the Federal Rules.”
Other federal judges in Mississippi, New York, Arkansas and Louisiana are handling UPF cases, while Morgan & Morgan can appeal Perez’s ruling to the Third Circuit. Perhaps the most notable lawsuit – brought by the San Francisco City Attorney – is in state court there.
The complaints were the product of a year’s work at Morgan & Morgan and likened the food industry to tobacco, alleging Phillip Morris and R.J. Reynolds bought major food companies in the 1980s and hoped to use the addiction playbook they’d used with cigarettes.
But Judge Perez noted there is no federal definition of UPFs and said plaintiffs must show the products they consumed caused the harm they suffered. The business world celebrated her ruling, with the U.S. Chamber Institute for Legal Reform calling it a rebuke of litigation not built on science or evidence.
“Judge Perez recognized that American courts should not be alternative legislatures and weaponized by billboard lawyers looking to manufacture liability where none exists,” ILR President Stephen Waguespack said.
“This is now the second time this case has been rejected, and for good reason. There is no causation, no credible evidence, and no legitimate legal theory — only a law firm seeking to pad its reported $2.4 billion revenue stream.”
The stakes could be massive, as this strategy was wildly successful for plaintiffs lawyers who scored government contracts to sue the tobacco industry in the 1990s. San Francisco hired Morgan & Morgan, DiCello Levitt and Andrus Anderson to sue in December under state-law theories like public nuisance and violation of the California Unfair Competition Law.
City Attorney David Chiu’s complaint alleges Big Food ignored warnings dating back decades, specifically a former vice predecessor at the predecessor company of Kraft Heinz who said in 1999 that health conditions caused by UPFs were costing up to $100 billion each year.
“This case is not about food that is merely ‘unhealthy,’” San Francisco’s complaint says. “This case is about food products with hidden health harms, that Defendants designed to be cheap, colorful, flavorful and addictive.”
Attorney Kelly Jones Howell of Harris Beach Murtha recently wrote that the Philadelphia case was tossed on the defendants’ first argument – vagueness – and if another judge actually finds the case before him or her makes specific allegations, the industry still has other options.
Other defenses could argue the foods and their labeling were approved by the federal government, triggering preemption under the Food, Drug, and Cosmetic Act. Companies would also be able to challenge plaintiff experts who testify to a link between UPFs and health problems, should cases progress that far.
In the Florida case, companies point to a state law imposing a limitation on liability arising from long-term consumption of food and nonalcoholic beverages. They also say the attempt to mandate UPF warnings is contrary to protections in the First Amendment on compelling commercial speech.
“Courts are unlikely to permit industry-wide liability theories that dispense with individualized proof regarding product identification, exposure, causation and damages,” Howell wrote.
“For food and beverage manufacturers, the [Philadelphia] decision provides a meaningful roadmap for challenging similar claims at the pleading stage.”
