News
Litigation Principal Joseph Hoolihan is quoted in "Will the UPF Lawsuit Be Successful," published in the December 22, 2024, edition of Food Navigator, one of the leading food and beverage centered publications. The article concerns a recent lawsuit filed in Philadelphia, which alleges that ultra-processed foods (UPFs) are engineered to be addictive.
The suit targets no less than 11 major food companies in the United States, including Mondelez International, Kraft Heinz, The Coca-Cola Company, Pepsico, Inc. and Nestle USA, Inc. It was filed on behalf of Bryce Martinez and claims that the defendant companies targeted children in their marketing, leading to chronic disease. Martinez developed type 2 diabetes and non-alcoholic fatty liver disease by age 16.
Joe represents defendants in high-stakes commercial litigation in state and federal courts across the country, including in class action, product liability and false advertising disputes. He is the sole attorney interviewed for the article, and says that he doesn't believe this particular case has a lot of precedent. He hasn't seen a case before that targets "a broad swath of the food and beverage industry" in the way this one does. However, he suggests that the chances of success are particularly high.
What the case has to prove, he explains in the article, is that a reasonable adult, who would be the guardian of the affected children and thus have control over their food consumption, would have been deceived by the advertising of the defendant companies into thinking their foods are healthy.
"These foods are not the types of foods that you would traditionally think are healthy. I don't think anyone thinks they're getting a salad or a grain bowl," he is quoted as saying.
Proving causation between the allegedly deceptive advertising of the defendants and the alleged health impacts of their foods will also be a challenge, Joe says.
"You probably know as well as I do, an unhealthy lifestyle has a lot more to it" than diet, he explains. For example, exercise plays a role in a person's health, as does genetics. "There's a lot of factors that go into whether or not someone is healthy."
The theories behind the case, are, in short, a "tough sell."
How Could the Case Affect the Food Industry?
The case has the potential to cause follow-on lawsuits if successful. In fact, its possible such lawsuits will be brought forward even before the case has been decided, says Joe. That is if the case gets passed the initial motion to dismiss.
In the event that the case is successful, its effect on the food and beverage industry would largely depend on the 'substance' of the ruling.
If the ruling reflects the norms of a traditional false advertising case - in this case meaning it would decide the defendants had marketed the food as healthy when in reality they were unhealthy - the ruling would essentially tell the defendants not to market the product as they have previously marketed it.
This, Joe suggests, would likely not have a significant effect on the food and beverage industry as a whole.
However, if the eventual ruling focuses heavily on the alleged health effects of UPFs, it could result in either UPFs not being allowed to be sold anymore, or having mandated warning labels on them.
The potential results of this, says Joe, could be similar to California's Proposition 65 legislation, which mandates health warnings on a range of products, including certain foods.
"Maybe that's the sort of world we might be looking at if these types of claims were routinely successful," he suggests, while stressing such an outcome is unlikely.
Joe believes the case could take years to be resolved. In fact, the initial pleading stage could take around six to 12 months.
CLICK HERE to view the case filing.
