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Coke Braces for Suit Akin to Tobacco Fight
Lawyers Want Vending Banned From All Schools
By Caroline Wilbert
The Atlanta Journal-Constitution
November 29, 2005
They earned their reputations battling Joe Camel. Next target: The
Real Thing.
Having won major settlements against big tobacco, some of the same
attorneys now are honing lawsuits against the soft drink industry.
Richard Daynard, a Massachusetts law professor who made his name working
as a consultant on class actions against tobacco companies, is part
of a broad effort by both private attorneys and nonprofit groups to
sue Atlanta-based Coca-Cola and other soft drink companies for selling
high-calorie drinks in schools.
Attorneys expect to file their first suit as soon as next month. The
plaintiffs will be parents of schoolchildren. Part of the strategy
is to claim that soft drink companies use caffeine, a mildly addictive
substance, to hook children on a product that is dangerous because
of its empty calories.
"It is less egregious, but it is a little like having a cigarette
machine in a school," Daynard said about soda vending machines.
Daynard, an associate dean at Northeastern University School of Law
in Boston, has a long anti-cigarette resume that includes being president
of the Tobacco Control Resource Center and chairman of the Tobacco
Products Liability Project. He is also chairman of the Obesity and
Law Project at the Public Health Advocacy Institute.
Other tobacco veterans involved in planning include Stephen Sheller,
a Philadelphia attorney known for arguing that tobacco companies misled
consumers into thinking light cigarettes were less dangerous than
regular ones, and Tim Howard, a former attorney for the state of Florida
who worked on a suit against tobacco companies that led to that state's
$11.3 billion settlement in 1997.
Susan Neely, president of the American Beverage Association, a trade
group that represents Coke, Pepsi and the other nonalcoholic beverage
companies, said the industry is aware of the potential lawsuit. She
said attorneys are "trying to paint a bull's-eye on a particular product
and pass it off as a meaningful solution to a complicated problem."
A Coke spokeswoman referred questions to Neely at the ABA.
The Center for Science in the Public Interest — a longtime opponent
of the soda industry that earlier this year called for warning labels
on sugary carbonated soft drinks — also is involved in preparing the
lawsuit.
The plan is to file first in Massachusetts and then to use that case
as a model in other states.
The attorneys say they could use several legal arguments. They may
argue that school vending machines are a nuisance because they give
kids access to something that is both tempting and dangerous, the
same argument that would be used in the case of a swimming pool without
a fence.
Another argument is deceptive advertising — the idea that by putting
vending machines in schools, companies are implicitly telling kids
the drinks are good for them. Also, attorneys may argue that it is
unfair to offer kids soft drinks in an environment where parents have
no control.
The caffeine addiction angle could be a factor in all of the arguments,
Daynard said.
Neely, who declined to comment specifically about caffeine or other
other specific accusations, said: "Any lawsuit would be wrong. It
is not going to accomplish the objective of getting one kid to eat
more nutritious food or do more exercise."
The attorneys say, however, the courts sometimes can be the best way
to address social change — and the childhood obesity issue calls for
such change. Selling drinks in schools can hook kids on something
that can eventually lead to diabetes, Howard said.
"This is an outrage and intolerant for any thinking adult," he said.
Howard, Sheller and Daynard say there are similarities between their
tobacco cases and the obesity case they are now building. Beverage
companies are preaching personal responsibility, just as the cigarette
companies once did, they said. Also, the public is largely unsympathetic
to the plaintiffs, just as it once was to the smokers suing tobacco
companies.
Public opinion on tobacco swayed when internal documents showed companies
were withholding information about the health risks of cigarettes
and purposefully targeting children, the attorneys said.
Children are also key to the obesity strategy. By focusing on schools,
the attorneys are putting children at the center of the argument.
Howard said the caffeine and sugar combination in a soft drink is
"toxic cocktail that children cannot easily refuse."
For the tobacco companies, the financial penalties have been high.
In 1998, 46 states settled with the four largest tobacco companies
in the nation. The tobacco industry is projected to pay these states
in excess of $200 billion over the next 25 years for the costs associated
with treating smoking-related illnesses.
Four states, including Florida, where Howard worked, settled separately.
So far, the obesity cause has not proved to be lucrative.
The most well-known obesity lawsuit to date is Pelman v. McDonald's,
in which two teenagers claim that McDonald's food made them fat. The
case was dismissed, but in January, an appeals judge reinstated the
case, saying there had been insufficient scope for discovery — the
process of soliciting from plaintiffs and defendants documents and
other testimony that might shed light on the case.
The McDonald's case has provided fodder for late-night comedians and
inspired states across the country to pass so-called hamburger bills
designed to stop lawsuits seeking personal injury damages related
to obesity.
Daynard said such hamburger bills wouldn't affect the planned suits
against the soft drink companies, since arguments won't claim soft
drinks made children fat but rely on claims like deceptive advertising.
Daynard, who is not involved with the McDonald's lawsuit, said there
are inherent problems with the teenagers' case.
The plaintiffs are trying to get damages for something that already
happened. Also, it is difficult to prove that McDonald's made the
plaintiffs fat when they ate food from other restaurants and made
lifestyle choices that could have contributed to their weight problems.
The soft drink case, on the other hand, would involve an ongoing practice
that affects children today.
The threat of litigation is just one facet of a multifaceted problem
the beverage industry is dealing with regarding school vending machines.
In addition to the attorneys, there are legislators and health advocates
increasingly putting blame on the soft drink companies, as childhood
obesity becomes an important health issue.
Some school boards and state legislatures have enacted rules that
limit or ban soft drink sales in school vending machines.
To combat the negative press from such legislative efforts, the ABA
this summer enacted voluntary guidelines limiting the sale of soft
drinks in schools.
Critics say the rules, which still allow for sugary soft drinks to
be sold in high school vending machines, don't go far enough.
After the industry policy was announced, California Gov. Arnold Schwarzenegger
signed a bill banning soft drinks altogether in public schools in
his state. Earlier this month, the Miami-Dade County public school
board passed a similar ban.
The ABA is now working on a paid advertising campaign that would tout
its policy and paint the industry as committed to working on the obesity
problem. Neely said final decisions are being made on the content
of the television commercials, and the campaign could start as soon
as January.
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