Lawyer Who Beat Big Tobacco Targets Food Industry

Aug. 21, 2012— -- A Mississippi lawyer who landed a multimillion dollar settlement from "big tobacco" is taking on the food industry, claiming some food makers mislead consumers about their products' health effects.

Don Barrett, a trial lawyer from Lexington, Miss., said his firm has filed 27 cases and counting, hoping to quickly whip another "deceptive" industry into shape.

"The food industry has realized that the [U.S. Food and Drug Administration] has no teeth," said Barrett, arguing that FDA rules that prohibit food misbranding are routinely broken. "You can't use euphemisms and you can't disguise ingredients by calling them something people can't understand. If you do, your product's misbranded. And if it's misbranded, it's illegal to sell it."

Barrett -- a relative newcomer to the world of food industry fraud, having filed his first case in April -- is drawing on his past battles with tobacco companies. In 1998 he was part of a major legal victory over the tobacco industry.

"The health claims they made for tobacco, and the denials they made about it being bad for you, they affected people's health," he said. "Perhaps the food industry doesn't affect people's health as directly, but people have the right to know what they're getting."

More than a third of American adults are obese, according to the U.S. Centers for Disease Control and Prevention. And obesity-related conditions like diabetes, heart disease and certain cancers are among the country's top killers.

"The three major determinants of all our ills are tobacco, poor diet and lack of physical activity," said Dr. David Katz, director of the Yale University Prevention Research Center. "And there's no question the problem of poor diet has been aided and abetted by those profiting from the status quo."

Katz said some food companies blatantly trick consumers into thinking a product is healthier or more natural than the competition's. He cited a jam-maker that listed apricots as the first ingredient by using five different forms of sugar -- so that it would not be required to put any one of them at the top of the list.

"You have to list the ingredients in the order of abundance, and there was more apricot than any one type of sugar," said Katz, adding that, generally, "the shorter the ingredient list, the better."

But some companies use different names for ingredients that might be perceived as unhealthy, according to Barrett, who recently sued the Greek yogurt maker Chobani for calling sugar "evaporated cane juice."

"It's so deceptive that it's really kind of funny. But it ain't funny if you're a mother whose child has juvenile diabetes," said Barrett. "It's a crime to misbrand food in that way, so we want them to quit selling it and pay everyone back."

A spokeswoman for Chobani said the company stands behind its products.

"We've built our business on being authentic and transparent," communications coordinator Kelly LaCorte said in a statement. "We consider any allegation that our products are mislabeled to be without merit and we intend to vigorously defend against any such claim."

The slew of suits from Barrett and other trial lawyers targeting "big food" are a welcome boost for food industry watchdogs like the Center for Science in the Public Interest.

"We need all the help we can get," said Stephen Gardner, the center's director of litigation.

Gardner has filed suits against Splenda Essentials and Nature Valley granola bars, alleging the high-priced products fall short of their health claims.

"Companies consider the consumer responsible for checking out all the facts; for assuming the ads they're seeing are lies," he said. He pointed out that "natural" Nature Valley granola bars contain maltodextrin -- a chemical that's "fresh from the factory."

"The 'natural' claim is a good example of something that may or may not matter to a food scientist, but it does matter to the consumer," he said.

But Gardner said the comparison between "big food" and "big tobacco" is a little far-fetched.

"All tobacco companies are evil killers of human beings, but there are a whole lot of food companies that sell food that's good for you," he said. "And even that stuff that's bad for you isn't going to kill you if you consume it in moderation. ... That's not to say I don't welcome people who had the skills and inventiveness to bring tobacco to its knees."