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Coke Braces for Suit Akin to Tobacco Fight
 

Lawyers Want Vending Banned From All Schools

By Caroline Wilbert
The Atlanta Journal-Constitution
November 29, 2005

They earned their reputations battling Joe Camel. Next target: The Real Thing.

Having won major settlements against big tobacco, some of the same attorneys now are honing lawsuits against the soft drink industry.

Richard Daynard, a Massachusetts law professor who made his name working as a consultant on class actions against tobacco companies, is part of a broad effort by both private attorneys and nonprofit groups to sue Atlanta-based Coca-Cola and other soft drink companies for selling high-calorie drinks in schools.

Attorneys expect to file their first suit as soon as next month. The plaintiffs will be parents of schoolchildren. Part of the strategy is to claim that soft drink companies use caffeine, a mildly addictive substance, to hook children on a product that is dangerous because of its empty calories.

"It is less egregious, but it is a little like having a cigarette machine in a school," Daynard said about soda vending machines.

Daynard, an associate dean at Northeastern University School of Law in Boston, has a long anti-cigarette resume that includes being president of the Tobacco Control Resource Center and chairman of the Tobacco Products Liability Project. He is also chairman of the Obesity and Law Project at the Public Health Advocacy Institute.

Other tobacco veterans involved in planning include Stephen Sheller, a Philadelphia attorney known for arguing that tobacco companies misled consumers into thinking light cigarettes were less dangerous than regular ones, and Tim Howard, a former attorney for the state of Florida who worked on a suit against tobacco companies that led to that state's $11.3 billion settlement in 1997.

Susan Neely, president of the American Beverage Association, a trade group that represents Coke, Pepsi and the other nonalcoholic beverage companies, said the industry is aware of the potential lawsuit. She said attorneys are "trying to paint a bull's-eye on a particular product and pass it off as a meaningful solution to a complicated problem."

A Coke spokeswoman referred questions to Neely at the ABA.

The Center for Science in the Public Interest a longtime opponent of the soda industry that earlier this year called for warning labels on sugary carbonated soft drinks also is involved in preparing the lawsuit.

The plan is to file first in Massachusetts and then to use that case as a model in other states.

The attorneys say they could use several legal arguments. They may argue that school vending machines are a nuisance because they give kids access to something that is both tempting and dangerous, the same argument that would be used in the case of a swimming pool without a fence.

Another argument is deceptive advertising the idea that by putting vending machines in schools, companies are implicitly telling kids the drinks are good for them. Also, attorneys may argue that it is unfair to offer kids soft drinks in an environment where parents have no control.

The caffeine addiction angle could be a factor in all of the arguments, Daynard said.

Neely, who declined to comment specifically about caffeine or other other specific accusations, said: "Any lawsuit would be wrong. It is not going to accomplish the objective of getting one kid to eat more nutritious food or do more exercise."

The attorneys say, however, the courts sometimes can be the best way to address social change and the childhood obesity issue calls for such change. Selling drinks in schools can hook kids on something that can eventually lead to diabetes, Howard said.

"This is an outrage and intolerant for any thinking adult," he said.

Howard, Sheller and Daynard say there are similarities between their tobacco cases and the obesity case they are now building. Beverage companies are preaching personal responsibility, just as the cigarette companies once did, they said. Also, the public is largely unsympathetic to the plaintiffs, just as it once was to the smokers suing tobacco companies.

Public opinion on tobacco swayed when internal documents showed companies were withholding information about the health risks of cigarettes and purposefully targeting children, the attorneys said.

Children are also key to the obesity strategy. By focusing on schools, the attorneys are putting children at the center of the argument.

Howard said the caffeine and sugar combination in a soft drink is "toxic cocktail that children cannot easily refuse."

For the tobacco companies, the financial penalties have been high. In 1998, 46 states settled with the four largest tobacco companies in the nation. The tobacco industry is projected to pay these states in excess of $200 billion over the next 25 years for the costs associated with treating smoking-related illnesses.

Four states, including Florida, where Howard worked, settled separately.

So far, the obesity cause has not proved to be lucrative.

The most well-known obesity lawsuit to date is Pelman v. McDonald's, in which two teenagers claim that McDonald's food made them fat. The case was dismissed, but in January, an appeals judge reinstated the case, saying there had been insufficient scope for discovery the process of soliciting from plaintiffs and defendants documents and other testimony that might shed light on the case.

The McDonald's case has provided fodder for late-night comedians and inspired states across the country to pass so-called hamburger bills designed to stop lawsuits seeking personal injury damages related to obesity.

Daynard said such hamburger bills wouldn't affect the planned suits against the soft drink companies, since arguments won't claim soft drinks made children fat but rely on claims like deceptive advertising.

Daynard, who is not involved with the McDonald's lawsuit, said there are inherent problems with the teenagers' case.

The plaintiffs are trying to get damages for something that already happened. Also, it is difficult to prove that McDonald's made the plaintiffs fat when they ate food from other restaurants and made lifestyle choices that could have contributed to their weight problems.

The soft drink case, on the other hand, would involve an ongoing practice that affects children today.

The threat of litigation is just one facet of a multifaceted problem the beverage industry is dealing with regarding school vending machines.

In addition to the attorneys, there are legislators and health advocates increasingly putting blame on the soft drink companies, as childhood obesity becomes an important health issue.

Some school boards and state legislatures have enacted rules that limit or ban soft drink sales in school vending machines.

To combat the negative press from such legislative efforts, the ABA this summer enacted voluntary guidelines limiting the sale of soft drinks in schools.

Critics say the rules, which still allow for sugary soft drinks to be sold in high school vending machines, don't go far enough.

After the industry policy was announced, California Gov. Arnold Schwarzenegger signed a bill banning soft drinks altogether in public schools in his state. Earlier this month, the Miami-Dade County public school board passed a similar ban.

The ABA is now working on a paid advertising campaign that would tout its policy and paint the industry as committed to working on the obesity problem. Neely said final decisions are being made on the content of the television commercials, and the campaign could start as soon as January.

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