Novel Case Aims to Make Ultra-Processed Food the New Tobacco

Kraft Heinz Co., Coca-Cola Co., and General Mills Inc. are among the targets of an anticipated wave of lawsuits portraying Big Food as the next Big Tobacco by likening the addictiveness of ultra-processed food to that of cigarettes.

A first-of-its-kind case filed against the food giants last year accuses the packaged food industry of using the same neuroscience research and marketing tactics as the tobacco industry to get children hooked on dangerous and unhealthy products.

To date it’s the only one pending, but plaintiffs’ firms are preparing to file similar complaints centered on the link between ultra-processed foods and children’s health.

Rene Rocha of Morgan & Morgan PA, who’s representing plaintiff Bryce Martinez in the case, said the team kept the potential for a mass tort in mind when drafting the complaint.

“There’s thousands of kids out there who are dealing with these types of health problems and have been wronged by these companies,” Rocha said. “I think you are going to see a lot of people going to the courts to demand justice for what has been a profoundly unjust situation that our country and our children have had to confront.”

Martinez’s complaint mentioned Jell-O, Oreos, Pop Tarts, Rice Krispies Treats, Fritos, and Lucky Charms among a lengthy list of products made by the food companies.

Mike Papantonio of Levin, Papantonio, Proctor, Buchanan, O’Brien, Barr & Mougey PA called the forthcoming legal battle “the next tobacco, the next opioid, the next PFAS” during an April plaintiffs’ attorney conference.

Diandra “Fu” Debrosse of Dicello Levitt LLP, said her firm is planning to getting involved and referred to the litigation as “one of the most significant of our times.”

“It’s about Big Tobacco hijacking our food supply, quite simply,” she said.

But public health experts and law professors are skeptical that the science on the effects of processed foods—and the law—is developed enough to make such comparisons.

There’s a fine line between wanting people to love a product and want more of it and wanting people to be addicted to something, said Erin Meyers, an assistant professor at the Antonin Scalia Law School at George Mason University.

‘Mostly a Distraction’

Martinez’s complaint alleges that food companies deliberately designed their products to have addictive qualities and that he developed type 2 diabetes and fatty liver disease after consuming them.

He argues that after the tobacco giants Philip Morris and R.J. Reynolds bought companies like Kraft and Nabisco in the 1980s, the industries developed a shared approach to formulate and sell their products to children. The tobacco companies mostly spun off the food entities by the 2000s.

The phrase “ultra-processed foods” comes from researchers’ efforts to group foods by their nature and the extent of the industrial processes they undergo, in what’s known as the NOVA classification system.

Walter Willett, a professor of epidemiology and nutrition at Harvard University, said the system is “mostly a distraction” and “off-target.” Even though the ultra-processed category includes a variety of unhealthy foods, it doesn’t account for other factors like nutrient fortification, he said.

Willett noted that many dairy and meat alternatives would be considered ultra-processed under this scheme despite having nutritional benefits.

There’s a misconception about food processing in general, said Anna Rosales, senior director of government affairs and nutrition for the Institute of Food Technologists.

“We started processing our foods to make them safe,” she said. “We processed to ensure that we had a safe food supply, that we got rid of contaminants, that we ensured that things weren’t going to have microbial growth.”

But the Martinez case says ultra-processed foods meet the same criteria for addictiveness that the surgeon general used for tobacco in 1988: the ability to cause compulsive use, psychoactive effects, and reinforce behavior.

“The deliberate manipulation of a consumer by the same industry just under different cover is incredible,” said Alyson Petrick, also with Levin Papantonio.

Petrick said her firm is planning to file similar cases.

Addictiveness in Question

Compared to research on nicotine, the science on the addictiveness of ultra-processed foods is less settled.

Earlier this year, the National Institutes of Health published a study that found UPFs might be less addictive than predicted.

Kevin Hall, a former researcher for the NIH and one of the authors of the study, announced on X that he was resigning out of concern that agency leadership wanted to downplay its findings because the research didn’t line up with preconceived notions.

GMU’s Meyers believes causation issues will make ultra-processed food lawsuits “an uphill battle.”

Unlike tobacco, where many users typically can point to one brand that they used consistently for years, “here there are so many different types of processed foods and it’s not as though a plaintiff is just eating products from Kraft,” she said.

Still, it’s notable that the food companies in their motion to dismiss didn’t outright say their products aren’t addictive, Meyers said. Instead, they said Martinez failed to allege that he was addicted to their products or specify which ones caused his injuries.

Petrick said the thrust of the legal fight is marketing to children.

The products are formulated with addictiveness in mind, but then the companies “push that with marketing that you can’t escape,” she said.

Much like the cigarette companies, food companies use cartoon characters and media tie-ins to shape children’s brand preferences, “which they then carry into adulthood,” Petrick said.

A 2012 Federal Trade Commission report found that food companies allocated nearly $1.8 billion on marketing for children between ages two and 17.

“I’m hopeful that we’re realizing that more and we can hold companies who do behave that way towards us accountable for what they’re doing to us as a society, whether that’s craving unhealthy food products and unhealthy apps or even smoking,” Petrick said.