Is Sugar a Killer?
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BUT ONE PEDIATRIC ENDOCRINOLOGIST, even one with a taste for grandstanding, cannot fix a nation’s biochemistry en masse. Seventy-five percent of food items sold in the United States have added sugar. According to Lustig, 90 percent are sold by ten conglomerates. Conventional wisdom holds that the federal legislature is useless, paralyzed by a farm bill that is beholden to extremely powerful and wealthy special-interest groups and that underwrites the cost of growing corn, rice, and wheat, even though American would be well served by eating less of that stuff. Voters have not proven useful either. This past November, the city of Richmond, California, shot down a tax on sugar-sweetened beverages. (Philadelphia, along with other municipalities, indicated that they might float similar measures.) In New York, Mayor Bloomberg convinced the city’s Board of Health to enact his big-soda ban. But that ban, while praised by wonks, caught a lot of flack. Comedian Steve Martin tweeted, “Drank 32 oz. soda and now moving on to heroin.” The underlying question is a good one: Is a Big Gulp really anything other than an individual concern?
Lustig believes it is: “If we’re still talking in terms of personal responsibility, Medicaid is going to be broke by 2024.” So he’s searching for ways to pull civic levers. “I want to know what the pressure points are,” he said while sitting on a Hastings library couch during a class break. “I’m looking for the legal precedent for social change. TB, AIDS, teen pregnancy—everything is initially seen as an individual failing. It becomes a matter of public health when enough people are involved.”
For the past six months Lustig has been working with the San Francisco Office of the City Attorney, considering possible mislabeling actions against various food products, kicking the legal tires on failure-to-warn claims. The great white hope—Lustig’s dream—is that sugar policy and litigation will follow the path of tobacco. For many years that path included abject failure. First lawyers tried bringing suits for product liability on behalf of sick individuals. That didn’t work. (Too hard to show cancer was from cigarettes alone.) Then they tried failure-to-warn claims. That didn’t work either. (Manufacturers argued that smokers assumed liability when they lit up.) What finally worked were lawsuits by states arguing that cigarette manufacturers were triggering huge public health costs.
The suits against Big Food have largely been stalled at the failure stage. In 2009 a federal court in California tossed out a case accusing PepsiCo of false advertising, that Cap’n Crunch’s Crunch Berries cereal contain no real fruit. (The judge’s ruling: you’d have to be an idiot to ever think the cereal “contained a fruit that does not exist.”)
But recently lawyers—including Don Barrett and others who landed huge settlements from R. J. Reynolds and Phillip Morris in that successful third wave of tobacco litigation—have been taking a different tack. They’re not suing big manufacturers for making people sick or alleging that junk food is healthy. They’re nailing producers for not following the rules.
One such suit, filed in California in May 2012 and amended a few months later to become a class-action suit, charges Chobani, the yogurt company, with using the term “evaporated cane juice” on its label, despite warnings from the Food and Drug Administration not to use the term. “Evaporated cane juice” is just sugar, and not a juice. “This is a whole lot easier. The law is on our side,” says Barrett. “We don’t have to show causation. I don’t have to hire a bunch of experts or engineers to show what’s deceptive on a label or what it really means. It’s deceptive because the FDA says it’s deceptive. I wish I’d had that with tobacco.”