Trouble in the Food Aisle

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Trouble in the Food Aisle

By Joe Kefauver, Align Public Strategies - 02/09/2014

Move over Joe Camel, make room for Ronald McDonald

It’s no secret that food policy activist groups have long been seeking some type of large-scale legal action against food manufacturers and retailers.

In fact, more than three years ago, the nation’s state attorneys general were treated to a seminar that meticulously reviewed each component of the AG-led tobacco lawsuits and subsequent Master Settlement Agreement. The seminar examined how the tobacco strategy could be leveraged into similar legal action against the food industry regarding obesity, marketing and other alleged ills of the industry. Since that time, there has been a small but diligent group of attorneys general working in this space trying to figure out a pathway.

Recently, their work has ramped up even further. For the last year or so, the attorneys general have met on several formal occasions to hear from the activist community. In May, the National Association of Attorneys General (NAAG) partnered with the left-leaning Rudd Center at Yale University to host a closed-door conference with the AGs and their consumer protection staff to discuss the marketing of food to children, as well as the increasing rates of obesity.

Most recently, Kansas Attorney General Derrick Schmidt hosted the NAAG Consumer Protection Conference in Wichita at which 47 states and federal agencies were represented. One panel was entitled “Deceptive Labeling and Marketing of Food,” with participants from the Harvard School of Public Health, the Yale Rudd Center for Food Policy and Obesity, and Stephen Gardner, director of litigation for the Center for Science in the Public Interest (CSPI). One could joke that the panel was evenly balanced between anti-business activists and anti-business extremists.

Like tobacco, the food activist community believes that the issue of marketing to children may provide the best avenue to litigation. Move over Joe Camel, make room for Ronald McDonald. At the NAAG conference, a number of brands were called out as offenders, including important convenience store suppliers such as The Coca-Cola Co., Anheuser-Busch and Sara Lee.

In one significant highlight, CSPI officially asked the AGs to flex the power of their offices and join activist lawsuits against quick-service restaurants, as well as food manufacturers, who they argue are in violation of numerous Federal Trade Commission (FTC) and Food and Drug Administration (FDA) regulations and policies, including Unfair and Deceptive Acts and Practices statutes. CSPI representatives argued that the FTC and FDA were ineffective in enforcing their own rules and laws, and that state AGs were uniquely positioned to bypass the typical two-year litigation process required of private litigants through discovery and countless motions.

This uptick in focus on food industry practices has been slow and steady, and few — even in the restaurant and retail communities — have been paying close attention. So, what’s the endgame of the activist community?

The cynic in me says it has at least as much to do with politicizing a legitimate public health debate to give liberal attorneys general a target enemy for the 2014 elections, when 35 states will hold attorney general contests.

Ultimately, the c-store community should be reminded that many of the products they offer are in the crosshairs of public health activists. The folks on the other side of our battles consider the war on cigarettes largely won, and they’ve currently got a friendly Environmental Protection Agency advancing their climate change wish list. So, now they can turn the majority of their attention to the rest of the product offerings in your stores — food.