United States-Court action over meat labelling.

UNITED STATES-COURT ACTIONS OVER LABELLING.

Well-known food and beverage brands have been appearing increasingly on a different sort of menu: courthouse dockets.

As Americans have grown more health-conscious, the country has seen a surge in litigation against food companies for allegedly selling unhealthy products and for misrepresenting their products’ nutritional value.

In the wake of litigation -- or the threat of it -- some food distributors in recent years have adopted a host of health-promoting steps, like reducing their use of trans fats, limiting marketing of sugary, high-calorie products to children, and toning down boasts about their products’ nutritional value. Cities such as New York and Philadelphia have jumped into the fray, passing laws recently that require fast-food chains to post calorie information on their menus.

But defense lawyers question whether consumers really need any additional help from regulators in deciding what to eat.

Attorneys who wage food fights say they are largely on a mission about truth in advertising: making sure people get the straight facts about what they are eating. Or, put another way, people are free to eat whatever junk food they want, so long as they know what they are biting into. Without the threat of litigation, "food companies will try to sell stuff without telling people the whole truth about what they are eating," says New York plaintiffs’ attorney Seth Lesser, who has filed food litigation alleging deceptive marketing.

The influence of the litigation push in prompting changes owes partly to some courts rejecting food makers’ arguments that regulation should be in the exclusive hands of the federal government. In February, for instance, the Second U.S. Circuit Court of Appeals upheld a 2008 New York City law requiring chains such as McDonald’s and Kentucky Fried Chicken to post calorie information on their menus, over the objection of the New York State Restaurant Association, which claimed the law was pre-empted by federal food regulations. Food regulations "need to be uniform across the nation so that restaurants, many of which operate through out the country, are not subject to thousands of different, possibly conflicting requirements," says Peter Zimroth, counsel to the association.

Also last year, the Ninth U.S. Circuit Court of Appeals in San Francisco declined to dismiss a continuing case alleging that Gerber Products Co. misled consumers about its Fruit Juice Snacks, which was packaged with images of a variety of fruits, even though the fruits weren’t included in the product. Gerber didn’t return calls for comment.

In court papers, Gerber argued that the product’s side panel accurately lists the ingredients. The Ninth Circuit ruled that didn’t suffice, stating: "The ingredient list on the side of the box appears to comply with FDA regulations...We do not, however, think that a busy parent walking through the aisles of a grocery store should be expected to verify that the representations on the front of the box are confirmed in the ingredient list."

Not all the litigation has been successful. Last year, Mr. Lesser and other plaintiffs’ lawyers lost a suit alleging PepsiCo Inc. misrepresented Aquafina, its bottled-water brand, by using a label that created the impression the water comes from a mountain spring.

Lawyers who represent food companies defend the so-called pre-emption argument. Their clients, after all, are already monitored by the Food and Drug Administration, which requires food makers to provide "nutrition facts," such as fat grams per serving, on most products.

Others have broader objections to the trend. Attorney Louis Solomon, who represented PepsiCo in the Aquafina suit, says food litigation is part of a larger "paternalization of society," adding that such litigation "in effect, says the masses aren’t intelligent enough to understand what they are buying."

Earlier this decade, plaintiffs’ lawyers hoped to score big awards in food suits like they had in smoking-related litigation. But they didn’t succeed in securing big paydays, largely because of the difficulty in proving a particular product caused a plaintiff’s obesity.

Instead, food suits in the past five years have focused more on claims that companies have deceptively marketed their products. The litigation, by and large, hasn’t generated big damage awards and is often led by public-interest attorneys.

A prime force behind food litigation has been the Center for Science in the Public Interest, a Washington, D.C., nonprofit specializing in nutrition and food-safety issues. The center formed a litigation arm in 2004 that has targeted many food companies. It filed suit this year against Coca-Cola Co. alleging it has misrepresented its Glacéau VitaminWater. It is also suing Coca-Cola in New Jersey for allegedly making unsubstantiated claims that its Enviga green tea burns more calories than it provides.

A Coca-Cola spokeswoman said the company stands by its product claims.

Stephen Gardner, the head of litigation at the Center for Science in the Public Interest, said consumers need food advocates. Otherwise, he said, food companies would "refuse to give people the information they need to make smart choices."