Are the lessons learned in the legal and advocacy fights against Big Tobacco relevant to changing the practices of the food industry that contribute to obesity? What are the benefits and limitations of litigation against producers of unhealthy foods? On what legal grounds is the food industry most vulnerable to challenge? These are the questions that staff of the Public Health Advocacy Institute (PHAI), a legal “think-and-do” tank, seek to answer.
Forged in the legal battles against Big Tobacco, PHAI was originally founded in 1979 as a Massachusetts-based public health organization which became the Tobacco Control Resource Center (TCRC) and its legal research arm the Tobacco Products Liability Project (TPLP). In 2006, the TCRC and TPLP joined forces with the Boston-based Tufts/Northeastern University Obesity and Law Project, a public health law and research organization, to form PHAI.
In its current work, PHAI seeks to use legal strategies to achieve specific public health goals. Northeastern University’s School of Law serves as a home and resource for PHAI as it seeks to nurture a new generation of professionals. Lawyers, public health advocates, policy analysts and physicians are invited to take on the food industry’s role in obesity, collaborate at annual conferences, and stay updated with the tools necessary to continue the global fight for tobacco control.
First, the group seeks to expand the repertoire of legal arguments that public health lawyers can use to challenge corporate behavior that harms health. For example, PHAI lawyers are considering ways to use laws against deceptive advertising as grounds for legal action in much the same way product liability was used in tobacco litigation cases. In the case of tobacco, large punitive damages awards were intended to deter tobacco companies from further actions that harmed health.
Second, PHAI takes the campaign to reduce obesity into new settings such as public schools and after-school settings. Research produced by their School Food Project served as a catalyst for advocating to remove high sugar sodas from public schools.
Third, PHAI attorneys remain deeply committed to global tobacco control and work to expose the illegal activities of Big Tobacco by researching internal industry documents and producing scholarly publications and amicus briefs. The group’s newest work is expanding to the global arena as members engage the World Health Organization Framework Convention on Tobacco Control (WHOFCTC) to work to connect tobacco control and human rights with health policy decision-making processes.
New Tactics and the Next Generation of Public Health Law
Each year, PHAI hosts an international conference, Legal Approaches to the Obesity Epidemic, where an interdisciplinary gathering of advocates consider new strategies to change food and beverage industry’s influence on the health of the public. Each conference chooses a theme to highlight emerging issues. For example, during the 2005 conference, speakers emphasized the need for public health efforts to target advertising campaigns that contribute to childhood obesity and related illnesses.
Marking a shift away from personal injury litigation strategies used during the ‘tobacco wars’ , the shift to targeting advertising incited harsh reactions from industry groups. Groups like Consumer Freedom, a food and restaurant industry lobbying group, criticized the PHAI conferences, calling them a “cabal of activists” who “use junk-science in an attempt to erode consumer freedom and turn food companies into their newest cash cow” . Despite these attacks, PHAI continues to support groups such as the Physician Committee for Responsible Medicine, which have successfully used lawsuits to change Kraft’s false advertising practices .
While PHAI sees tobacco litigation as one strategy for making corporations more responsible, the group’s recent work emphasizes broader, population and environment-based interventions to reduce obesity—namely, policy, regulation and legislation. In a 2002 article in the Journal of the American Medical Association, PHAI President Richard Daynard acknowledged litigation as a tool to control obesity and points to the key differences between tobacco and food. “In the absence of proof that particular food industry practices cause obesity, suits seeking compensation for obesity-related injury are unlikely to succeed, while suits seeking to protect consumers from unfair or deceptive food marketing techniques are more likely to succeed” . In a 2004 interview with Medscape, Daynard argued that consumer responsibility and personal responsibility “would be much more credible if the consumer was actually being told how fattening the food was and [had] a chance to say, no, I think I won’t take that order; I’ll order something else” . Legal work to combat unhealthy food consumption seeks to increase product labeling and hold companies responsible for quality regulations and monitoring the actual caloric content of food marketed as “low in fat” or “high in fiber.”
Negotiating with the Food Industry
In an effort to better understand how food industry practices contribute to childhood obesity, PHAI spearheads new research design and policy recommendations. Their work has contributed to large-scale changes, such as the 2006 negotiation arranged by former President Bill Clinton, Governor Mike Huckabee, and the American Heart Association that promises to remove many sweetened beverages including Coke and Pepsi products from schools by 2009 . PHAI member and Tufts Professor of Public Health and Family Medicine Aviva Must says she “would prefer these machines carry just water and low-fat dairy products, but I think this is a good start.”
To inform these campaigns, in 2006 PHAI released a report, Raw Deal: A Report on School Beverage Contracts. In a collaborative project with the Center for Science in the Public Interest (CSPI), the group conducted a national survey of school beverage contracts evaluating whether the alleged financial benefits were realized by schools. The exclusive contracts between beverage companies and schools place soft drink vending machines in accessible locations throughout elementary, middle and high school settings, and provide schools with income in exchange for exclusive “pouring rights.” However, the study found that the majority of the revenue from the contracts, was going not to the schools, but to the beverage companies. “The study highlights the need for legal tools to assist school districts in negotiating relationships that put the health and welfare of children first”  says Jason Smith, Associate Executive Director and head of PHAI’s Healthy Eating Law and Policy Project.
PHAI’s Healthy Eating Law and Policy Research Project also investigated how the law affects the foods available in public schools. Research from this project led to a policy guide to assist schools to develop healthier food policies. The report, Mapping School Food, highlights the need for policy makers to create school food programs informed by public health prevention strategies, and presents practical suggestions on how to quickly achieve change. Funded by a grant from the Robert Wood Johnson Foundation, the Healthy Eating Law and Policy Research Project is also expanding its research to consider food availability in after-school activity programs .
Acting Locally and Globally on Tobacco
To continue its effort on tobacco, PHAI’s team of lawyers and public health advocates are arming tobacco control professionals with data from newly available internal industry documents released under the provisions of the 1998 Master Settlement Agreement.
In their analyses of the formerly secret tobacco documents, PHAI Senior Staff Attorney, Sara Guardino and President Richard Daynard uncovered some of the ways that tobacco lawyers used the law to keep information about the harm of smoking from reaching the public. In their recent publication, Tobacco industry lawyers as “disease vectors,” they present evidence showing industry lawyers had “taken steps to manufacture attorney-client privilege” including assisting in the concealment of documents and the use of aggressive litigation techniques. PHAI lawyers and researchers have helped to expose illegal techniques employed by industry lawyers, including ‘scorched earth’ strategies—wherein plaintiffs’ efforts to bring tobacco companies to trial are thwarted by superfluous litigation.
PHAI’s discoveries from internal tobacco document inquiries and its history with tobacco litigation inform tobacco control policy recommendations both nationally and globally. The Tobacco Control Resource Center at PHAI provides legal and policy information to local, state and national decision-makers, files amicus briefs, and helps to build global information networks among tobacco control advocates around the world.
PHAI recently joined efforts to advance the Framework Convention for Tobacco Control, the first international public health treaty for the control of tobacco products. In Viet Nam, for example, a nation that has signed the FCTC, PHAI is helping to link tobacco control advocates with human rights organizations. In their Fall 2007 newsletter, PHAI says this approach is critical to creating change; “Linking the broader range of women’s, children, and social, economic and cultural rights with the WHO FCTC helps to highlight the ways in which these rights are inextricably interlinked, interrelated and indivisible” .
The Institute is now also working with health departments, NGOs, and tobacco control organizations in several nations to develop long-term strategies to reduce the influence of tobacco companies on the health of the public. By carving out legal grounds on which to challenge tobacco and food industry’s health damaging practices, PHAI helps set the stage for a unified effort toward public health solutions. Whether countering Big Tobacco’s tactics of obfuscation, assisting public school food policy development, or facilitating global tobacco control dialogue, PHAI is creating an organized public health legal approach to counter corporate influences on well-being and setting precedents for a global movement for health.
1. Daynard RA, Hash LE, Robbins A. Food Litigation: Lessons from the tobacco wars. JAMA. 2002;288(17):2179.
2. Cabal Of Activists And Lawyers Plot To Sue Food Companies. Consumer Freedom. June 19, 2003. Available at: http://www.consumerfreedom.com/print.cfml?id=1975&page=headline.
3. Thorn B. Conference: obesity lawsuits should focus on ads, children. Nation’s Restaurant News. Oct 17, 2005.
4. Daynard RA, Hash LE, Robbins A. Food Litigation: Lessons from the tobacco wars. JAMA. 2002;288(17):2179.
5. Barclay L. Legal Approaches to Obesity: A newsmaker interview with Richard Daynard, JD, PhD.
6. Mohl B. After Soda Ban, Nutritionists Say More Can Be Done. The Boston Globe. May 4, 2006;A1.
7. School Beverage Contracts Leaving Districts With a Bad Aftertaste: The Public Health Advocacy Institute Releases First National Study of School Beverage Contracts. Press Release. Public Health Advocacy Institute. Dec. 6, 2006.
8. PHAI Fall 2007 Newsletter.
9. PHAI newsletter fall 2007 p. 7