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September 08, 2015 Practice Points

The Practical Consequences of Food Addiction in the Law

By Kurt D. Weaver and Daniel K. Covas

The refrain "I'm addicted to chocolate" has been part of people's conversations for decades. But can it be true? And if so, what are the legal ramifications of addiction in the context of food products generally or specific ingredients, additives, or processors? Using an often misused label such as "addiction" can have profound regulatory and legal consequences, particularly when the controversial substance in question—in our situation, food—does not conform to the traditional definition of what it means to be addicted to a substance. Over the past many decades, the definitions of addiction have undergone revision just as our food products have become more sophisticated in their composition. There is a risk that an "addicted" consumer will gain a special status as a diseased and helpless individual who is unable to control his or her own actions; a victim of unscrupulous advertising without clear warning. In court, plaintiffs may therefore assert that their addiction trumps their responsibility. By making such a claim, a consumer may be able to shift the burden of proof to the defense. Over the past two decades, and with the support of the public health community, "science" and societal pressure led by the media have developed new and different perspectives on the issue of addiction and its viability as a well-established theory and whether it can be applied to food manufacturers. The practical danger of allowing food or specific foods to be labeled as addictive is that "blame" (e.g., liability) might be shifted to the manufacturers and others in the food industry for today's obesity epidemic.

Lawsuits filed in the early 2000s were the first to make a connection between unhealthy eating and blame that is aimed at a food manufacturer. "Cheeseburger bills" or legislation intended to relieve manufacturers of liability have been enacted in some but not all states; and even in the ones that have passed legislation, they vary widely in scope and levels of protection. Federal legislation on the subject, which would resolve the issue once and for all, cannot seem to pass the House of Representatives. And state attorneys general are regularly solicited by lawyers to commence recoupment actions against industry segments in order to "right the wrongs" that occur in society.

What is a manufacturer to do in such a litigious environment—one in which scientific scholarship purports to make "advances" that may not have been possible unless the definitions used within the public health community change? Several options exist: First, know "the rules." Make sure that your in-house research and development personnel understand how definitions have changed and what the appropriate responses are to whether those changed definitions are appropriately applicable to your situation. Second, "know thyself," as the Greeks said centuries ago. Be the undisputed expert on your products, their ingredients, and how they can interact with the human body. Finally, work together. Whether or not a product is vulnerable to attack will be the commercial consequence of a multitude of decisions made by your experts in areas that include product formulation, manufacturing, labeling, marketing, distribution, and legal. To the extent you can, encourage (if not demand) that they work together as a product goes from idea to consumption to reduce your risk of being accused of nefarious manufacturing and advertising activities.

Keywords: products liability, litigation, food addiction, obesity, food industry, unhealthy eating, food labels

Kurt D. Weaver and Daniel K. Covas is with Womble Carlyle Sandridge & Rice, LLP, in Raleigh, North Carolina.

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