Activists Target School Sales of Soft Drinks, Snacks

Published February 1, 2006

In January, trial lawyers were poised to file a class-action lawsuit against the soft drink industry on behalf of parents of school-age children.

According to a December 29, 2005 article in a Massachusetts newspaper, a lawyer known for his work in tobacco litigation has a lead plaintiff and is ready to move ahead with a lawsuit.

“We’re teed up to do it, but we’re waiting for the right time to bring this forward,” Richard Daynard, head of the Obesity and Law Project at the Public Health Advocacy Institute at Northeastern University in Boston, told the North Andover Eagle-Tribune.

Since fall 2005, Daynard and other lawyers have been preparing to take on the soda companies over vending machines in schools.

Beverage Industry Prepares

In December, the American Beverage Association (ABA) released a study of school beverage sales. The report showed a sharp decline in school-site purchases of full-calorie carbonated soft drinks from 2002 to 2004. The study also showed average purchases of full-calorie drinks at school by students during school hours were extremely low in 2004.

The study, conducted by Robert Wescott, an independent economist, concluded purchases of full-calorie carbonated drinks during normal school hours averaged about one 12 ounce can per week for high school students.

“The trial lawyers’ arguments against the beverage industry don’t add up,” said Susan Neely, ABA CEO and president. “If child consumption of full-calorie soft drinks in schools is going down while childhood obesity may be going up, it doesn’t make sense to single out sodas in schools as the cause for weight problems.”

Wescott’s study, conducted for the ABA, found student purchases of full-calorie carbonated soft drinks dropped by 24 percent between 2002 and 2004, while purchases of waters increased by 23 percent, diet soft drinks by 21 percent, 100 percent juices by 15 percent, and sports drinks by 70 percent.

The ABA has developed a school vending machine policy suggesting school officials offer in the machines a variety of drinks, including beverages that are low- or no-calorie and caffeine-free, as well as water and juice drinks.

Study Targets Soft Drinks

In July 2005, the Center for Science in the Public Interest, a liberal advocacy group, released a report, “Liquid Candy: How Soft Drinks are Harming America’s Health,” claiming soda in schools was making kids fat. The group petitioned the U.S. Food and Drug Administration to put warning labels on soft drinks noting they are sweetened and contain calories.

“The chatter about lawsuits only creates scapegoats,” counters Neely. “As parents, we know the real solution is to teach children how to have a balanced diet and get enough exercise.”

In addition to potential lawsuits, the soda industry has been the target of numerous legislative efforts and school board actions.

In September 2005, California Gov. Arnold Schwarzenegger (R) signed legislation prohibiting the sale of carbonated soda in schools, in a stated effort to “terminate obesity in California once and for all.” When signing the bill, the governor said obesity-related health problems cost the state $28 billion a year. The law will take effect in 2007.

Connecticut Gov. Jodi Rell (R), on the other hand, vetoed a bill in June mandating a “junk food” ban in public schools, saying it was not the role of the government to impose such restrictions. She recommended individual school boards take up the matter. In Florida’s Miami-Dade County, the school board did just that in November, voting unanimously to ban sugary sodas and high-calorie snacks.

False Advertising Charged

The activist lawyers say they will take an approach similar to that taken in tobacco litigation: Instead of claiming soft drinks cause obesity (which they would then have to prove), they will argue the industry is promoting something to children that is not good for them and may lead to caffeine addiction and poor nutrition choices.

“Rather than seeking personal injury damages for the consequences of obesity, there will be lawsuits based on state consumer protection laws,” Daynard told the New York Times in July. “There’s a lot of deception in the marketplace and a lot of it is relevant to the obesity epidemic. But here we don’t have to prove anyone got fat,” he said.

Daynard has compared soda machines to having cigarette machines in schools.

Irresponsible Litigation Criticized

“Rumors are of a filing in the next few weeks,” said Sam Kazman, general counsel of the Competitive Enterprise Institute, in January. “While it’s hard to comment in advance of the cases being filed, such litigation would appear to be a major expansion of the addiction model for social regulation, which magically transforms lifestyle choices into public health crises.

“Concepts of individual responsibility and free choice are tossed overboard [in these suits], all in the name of ‘protecting the kids’,” Kazman said. “The end result will be a society that is worse, not better, for both us and our children.”

Susan Konig ([email protected]) is managing editor of Health Care News.