Trouble in the Food Aisle

It’s no secret that food policy activist groups have long been seeking some type of large-scale legal action against food manufacturers and retailers.

In fact, more than three years ago, the nation’s state attorneys general were treated to a seminar that meticulously reviewed each component of the A.G.-led tobacco lawsuits and subsequent Master Settlement Agreement. The seminar examined how the tobacco strategy could be leveraged into similar legal action against the food industry regarding obesity, marketing and other alleged ills of the industry. Since that time, there has been a small but diligent group of attorneys general working in this space trying to figure out a pathway.

Recently, their work has ramped up even further. For the last year or so, the attorneys general have met on several formal occasions to hear from the activist community. In May of this year, the National Association of Attorneys General (NAAG) partnered with the left-leaning Rudd Center at Yale University to host a closed-door conference with the AGs and their consumer protection staff to discuss the marketing of food to children, as well as the increasing rates of obesity.

And just a few weeks ago, Kansas Attorney General Derrick Schmidt hosted the National Association of Attorneys General Consumer Protection Conference in Wichita at which 47 states and federal agencies were represented. Despite being hosted by a rock-ribbed Republican attorney general like Schmidt, the conference was decidedly biased toward the public health activist community. One panel was entitled “Deceptive Labeling and Marketing of Food,” with participants from the Harvard School of Public Health, the Yale Rudd Center for Food Policy and Obesity, and Stephen Gardner, director of litigation for the Center for Science in the Public Interest (CSPI). One could joke that the panel was evenly balanced between anti-business activists and anti-business extremists. No business community participant was invited to participate on the panel.

Like tobacco, the food activist community believes that the issue of marketing to children may provide the best avenue to litigation. Move over Joe Camel, make room for Ronald McDonald. At the NAAG conference, a number of brands were called out as offenders, including important convenience store suppliers such as Coca-Cola, Anheuser-Busch and Sara Lee.

In one significant highlight, CSPI officially asked the AGs to flex the power of their offices and join activist lawsuits against quick-service restaurants, as well as food manufacturers, who they argue are in violation of numerous Federal Trade Commission (FTC) and Food and Drug Administration (FDA) regulations and policies, including Unfair and Deceptive Acts and Practices statutes. CSPI representatives argued that the FTC and FDA were ineffective in enforcing their own rules and laws, and that state AGs were uniquely positioned to bypass the typical two-year litigation process required of private litigants through discovery and countless motions.

To cap recent anti-industry actions, on Nov. 5, the Yale Rudd Center released two deceptive and inaccurate reports lambasting quick-service restaurants for their marketing practices to children, claiming that industry efforts to self-regulate the practice were not working and stricter rules were necessary. While the reports did not receive widespread media coverage due to the timing with Election Day, their spurious data will no doubt resurface as public health activists continue their attacks on the food industry in the coming months.

This uptick in focus on food industry practices has been slow and steady, and few – even in the restaurant and retail communities – have been paying close attention. So, what’s the endgame of the activist community? Is this really about protecting kids from deceptive marketing? Is it about producing multi-billion dollar jury awards to reimburse state Medicaid coffers that are supposedly struggling to keep up with obesity-related health care costs? Is it some noble public health goal of forcing quick-service restaurants to remove “unhealthy” items from their menus under the fear of litigation?

The cynic in me says it has at least as much to do with politicizing a legitimate public health debate to give liberal attorneys general a target enemy for the 2014 elections, when 35 states will hold attorney general contests. While even the most ardent supporters of this approach likely realize those outcomes may be wishful thinking, recasting mundane policy debates into red-hot political fodder is nothing new and can be a successful strategy. Anyone remember when raising the nation’s debt ceiling was standard operating procedure for Congress?

Ultimately, the c-store community should be reminded that many of the products they offer are in the crosshairs of public health activists. The folks on the other side of our battles consider the war on cigarettes largely won, and they’ve currently got a friendly Environmental Protection Agency advancing their climate change wish list. So, now they can turn the majority of their attention to the rest of the product offerings in your stores – food.

Joe Kefauver is managing partner of Parquet Public Affairs, a national issue management, communications, government relations and reputation assurance firm that specializes in service-sector industries. Parquet's clients include Fortune 500 corporations, trade associations, regional businesses and non-profit organizations. For more information, go to www.ParquetPA.com.

Editor's note: The opinions expressed in this column are the author's and do not necessarily reflect the views of Convenience Store News.