An extensive selection of the companies that make them have just been served with a lawsuit in an American court. This is the first time that this has happened. The list of defendants is quite something, and certainly worth spelling out in full: Kraft Heinz; Mondelez; Coca Cola; Pepsico; General Mills; Nestle; Mars; Kellogg’s; as well as Post Holdings, Kellanova, and Conagra Brands. Post Holidings is a Philip Morris spin-off; Kellanova is a Kellogg’s spin-off.

Advancing

Futurists like cases such as this because we see them as a sign that an issue might be moving from the ‘Advancing’ stage of Graham Molitor’s policy S-curve into the choppy waters between ‘Advancing’ and ‘Resolving’.

(‘Advancing’ is that stage in the S-curve where there is general agreement among advocates of change on what the issue is, and why it is an issue, but it’s not that salient to policy makers or government and public institutions. ‘Resolving’ is the area where the issue has the attention of policy-makers, and you start to see regulations and so on start to change as a result.)

The whole UPF issue has been advancing quite fast. Chris Van Tulleken’s high profile book is one example of that. There’s been a wave of advocacy reports getting into details like the external costs of Big Food (which are fast), another sign that it’s hitting the grey area between Advancing and Resolving. The House of Lords committee report that I mentioned recently at Just Two Things is another example of this.

Legal cases are often sighting shots in this process.

Telling a story

The other reason that futurists like cases like this, especially in the United States where law is conducted as a public contest, is that the documents submitted to the court include a lot of data. And so it is in this case. Here the law firm acting for the plaintiff is Morgan & Morgan, America’s largest personal injury law firm, and the document is on their website.

Obviously serious American lawyers don’t get to be that way without knowing how to make a case, and even the Introduction tells quite a story.

Let me pick out a few paragraphs from this. It kicks off by asserting that ultra-processed foods [UPF] are

one of the greatest threats to our health, and the health of our children.

Then it describes ultra-processed foods as being

industrially produced edible substances that are imitations of food. They consist of former foods that have been fractioned into substances, chemically modified, combined with additives, and then reassembled using industrial techniques such as molding, extrusion and pressurization.

Alien

Incidentally, if you’re interested in all of this, the whole lawsuit is extensively referenced and sourced.

And then the next paragraphs get onto the (alleged) impact:

UPF are alien to prior human experience. They are inventions of modern industrial technology and contain little to no whole food. However, the prevalence of these foods exploded in the 1980s, and have come to dominate the American food environment and the American diet. The issue is particularly pronounced in children, who now derive over 2/3 of their energy from UPF on average.

The explosion and ensuing rise in UPF in the 1980s was accompanied by an explosion in obesity, diabetes, and other life-changing chronic illnesses.

Some of the consequences are well known—non-communicable diseases associated with ageing started appearing at younger ages in the population. But what’s interesting about the lawsuit is that it tells a business story about why there was an explosion of UPFs in the 1980s. And at the heart of the business story is not Big Food, but Big Tobacco.

The tobacco connection

This is the result, it says (and you have to keep remembering that an argument is being made here as you read it, even if it is a well-researched argument) of the tobacco companies Philip Morris and R.J. Reynolds buying up a stack of food companies in the 1980s.

Collectively, Phillip Morris and RJ Reynolds dominated the US food system for decades. During this time, they used their cigarette playbook to fill our food environment with addictive substances that are aggressively marketed to children and minorities.

UPF formulation strategies were guided by the same tobacco company scientists and the same kind of brain research on sensory perceptions, physiological psychology, and chemical senses that were used to increase the addictiveness of cigarettes.

Hacking our brains

These two claims are well-sourced as well, including some tantalising footnotes that reference inter-office memos between named scientists in 1990 and 1991.

Big Tobacco companies intentionally designed UPF to hack the physiological structures of our brains.

These formulation strategies were quickly adopted throughout the UPF industry, with the goal of driving consumption, and defendants’ profits, at all costs…

At the same time, Big Tobacco repurposed marketing strategies designed to sell cigarettes to children and minorities, and aggressively marketed UPF to these groups.

The case states that the US food industry now spends about $2 billion a year marketing UPFs to children; and that “UPFs meet all the scientific criteria that were used to determine that tobacco products are addictive.”

Secret meeting

What’s interesting is that the case seems—to me, as a non-lawyer—to turn on a similar claim that has previously caused legal problems for both Big Tobacco and Big Oil: that executives at the food companies knew of the harm that UPFs were doing several decades ago, and chose to ignore it and carry on:

In April 1999, the CEOs of America’s largest UPF companies attended a secret meeting in Minneapolis to discuss the devastating public health consequences of UPF and their conduct.

The plaintiff, Bryce Martinez, has has Type 2 Diabetes and Non-Alcoholic Fatty Liver Disease since the age 16, and alleges that is the result of his consumption of UPFs.

I’ve just summarised the Introduction here, but if you’re interested in the detail there’s a 98-page section of Statement of Facts that goes into the detail. It includes some pretty questionable examples of advertising to children along the way.

Blowing smoke

I’d expected to do a quick news search and find at least one public affairs spokesperson for one of these companies declaring the case to be “baseless” and “without merit”, which usually happens in response to anti-corporate lawsuits in the US. Not a peep. The best I could find was a statement from a policy person at the food and beverage industry group Consumer Brands Association blowing smoke (pun not intended but quite pleasing):

“There is currently no agreed upon scientific definition of ultra-processed foods… Attempting to classify foods as unhealthy simply because they are processed, or demonizing food by ignoring its full nutrient content, misleads consumers and exacerbates health disparities.”

I think this is known in the trade as a non-denial denial.

An earlier post by Marion Nestle on UPFs summarised three studies that found that a UPF-heavy diet would lead you to eat around 1,000 calories a day more than if you had a unprocessed food diet.

An initial case

A couple of notes from me: the first is that an initial case such as this is sometimes an attempt—through the coverage it gets—to bring more plaintiffs into the open, which makes it harder for the defendants to swat the case away, and makes the case easier to fund. And given that Morgan & Morgan is a personal injury lawyer and not a public interest lawyer, we can assume they are fairly sure that there’s potential here for mass tort or a class action suit.

Secondly, having watched my local Sainsbury’s reorganise its shelves recently, it’s increasingly hard to find non-processed foods outside of fruit and veg, some of the bread and cakes, and some of the dairy products. If I were running a supermarket in the current climate, I might be a bit more careful about my category mix.

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A version of this article is also published on my Just Two Things Newsletter.