retail news in context, analysis with attitude

The New York Times had a story over the weekend about how lawyers who were instrumental in winning major lawsuits against Big Tobacco companies have been searching for their next big payday, and apparently have decided that Big Food manufacturers are both vulnerable and wealthy enough to be targeted.

According to the Times, "More than a dozen lawyers who took on the tobacco companies have filed 25 cases against industry players like ConAgra Foods, PepsiCo, Heinz, General Mills and Chobani that stock pantry shelves and refrigerators across America. The suits, filed over the last four months, assert that food makers are misleading consumers and violating federal regulations by wrongly labeling products and ingredients. While there has been a barrage of litigation against the industry in recent years, the tobacco lawyers are moving particularly aggressively. They are asking a federal court in California to halt ConAgra’s sales of Pam cooking spray, Swiss Miss cocoa products and some Hunt’s canned tomatoes ... The food companies counter that the suits are without merit, another example of litigation gone wild and driven largely by the lawyers’ financial motivations."

Those financial motivations are considerable; the lawyers, if they succeed, could be looking at billions of dollars in winnings if they are able to prove that foods are not as healthy as being claimed, or are not exactly what their labels say they are, or are causing health problems in consumers because of their ingredients.

The story goes on to say that it is not only hungry lawyers targeting Big Food: "In recent weeks, the Center for Science in the Public Interest has sued General Mills and McNeil Nutritionals over their claims on Nature Valley and Splenda Essentials products, and warned Welch’s it would sue unless the company changed the wording on its juice and fruit snacks. The Federal Trade Commission won settlements from companies like Dannon and Pom Wonderful for claims about their products’ health benefits. And PepsiCo and Coca-Cola face lawsuits over claims that their orange juice products are '100% natural.'

"The latest playbook - like the one that paid off in the wave of tobacco litigation - could prove potent, as the food companies’ own lawyers have warned."
KC's View:
To begin with, I'm not sure that anything that can rise to the level of cynical and evil manipulation demonstrated by the tobacco companies, creating a product designed to addict and kill people, all in the name of making a buck. (As I've said here before, my mom died at age 67 of lung cancer, having started smoking as a teenager and being unable to quit until she was in her early sixties, by which point the damage was done. I have no objectivity on tobacco companies or tobacco company executives, who I believe should occupy their own special circle in hell.)

But let's put that aside those comparisons for the moment, except to concede that the lawyers in these cases are like vampires. They've gotten the taste of blood, and now that thirst cannot be slaked.

It seems to me that it is possible - maybe even necessary - to hold two seemingly opposite ideas in this scenario.

Yes, it is fair to say that the lawyers looking to equate Big Food with Big Tobacco are motivated entirely by money and greed, and are willing to use whatever legal means are at their disposal to get that next big payday.

But it also could be fair to say that Big Food companies are going to have to do a better job about being transparent and accurate in their claims and labels, and that a resistance to total accuracy and transparency has left them vulnerable. (For example, I believe that "frozen blueberry waffles" should actually have blueberries in them; this seems like a reasonable bar to me.)

There are going to be cases where the vampire-like lawyers are actually going to have a legitimate point - not every case, not every instance, but sometimes. And there are going to be cases where the Big Food companies are actually going to be wrong. (Conversely, there will be cases where the lawyers will be wrong and Big Food will be right.)

The hard part will be separating the wheat from the chaff, and not making generalizations. And, as much as it sometimes will hurt, it will be critical to accept the notion that Big Food can do better, should do better, and needs to be better about transparency and accuracy.