The growing challenge of obesity litigation

Following the success of litigation cases against ‘Big Tobacco’ and ‘Big Pharma’, attention is now turning to ‘Big Food’ as food and drinks manufacturers come under pressure to make healthier products.

Obesity litigation cases against food and drinks manufacturers and fast-food giants are likely to increase as plaintiffs find new tactics to hold them to account.

Following the successes seen in cases against Big Tobacco and Big Pharma for the opioid crisis we are now seeing a new era of litigation. These mass tort lawsuits have changed the litigation landscape and are changing how social harms are addressed.

In the first lawsuits that have been brought against the industry, the defence has used the case of personal liability; plaintiffs freely chose to consume the products. However, there are now new tactics being employed by plaintiffs including cases arguing deceptive advertising or negligent marketing. In 2003, a case was brought against Kraft, claiming that Oreo cookies were unhealthy as they contained trans fats. The case was eventually dropped as Kraft agreed to adapt their products.

More recently, in November 2021, a settlement was reached out of court between a group of consumers and Mondelez, after they made false claims that their Belvita biscuits were healthy.

There is also increasing neuroscientific research about the impact that sugar can have on the brain and how the food and drink industry is altering their products to make them more addictive to the consumer.

If it can be proved that the industry is aware of the adverse impact that their products can have on health, we could see a new wave of litigation cases launched.

Even if cases that are brought against food and drinks giants are not successful, they will place significant pressure on the industry to change its practices and make healthier products. Mounting litigation in this area will present insurers with challenges in terms of product liability, product recall and D&O liabilities, especially given the surge in social inflation.

View all our Insurance 2022 Predictions here