Demonization by Litigation: Food Ingredient Makers Face Frivolous Charges

fructoseCross-posted at WLF’s contributor site

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 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 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:

  1. S.F. cannot demonstrate that HFCS alone was a substantial cause of her diabetes. “Millions of people eat HFCS every year without becoming diabetic.”
  2. 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.
  3. Overconsumption of food can rarely provide the basis for liability, and HFCS presents no unknown danger different from the fructose in other sugars.
  4. 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.
  5. The plaintiff’s claims are preempted because federal law dictates the design of HFCS and FDA recognizes it as “Generally Regarded as Safe.”

Junk Science Underpinning. Far more compelling (and, frankly, more entertaining) than the defendants’ dismissal motions is their November 1 opposition 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 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.

One thought on “Demonization by Litigation: Food Ingredient Makers Face Frivolous Charges

  1. Pingback: Food roundup - Overlawyered

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