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PHAI Joins Center for Science in the Public Interest in Filing Lawsuit Against Coca-Cola for Deceptive Marketing

Wednesday, January 4th, 2017

BOSTON – Two non-profits that use litigation as a public health strategy have joined forces in a lawsuit accusing the Coca-Cola Company (“Coke”) along with the American Beverage Association (“ABA”) of misleading the public about the science that links heart disease, obesity, and diabetes to consumption of sugary beverages. For years, the Public Health Advocacy Institute at Northeastern University School of Law in Boston and the Center for Science in the Public Interest in Washington, DC relied on civil litigation as a tool to achieve policy change to benefit public health.

Download the Complaint here.

The lawsuit was filed today in federal court in the Northern District of California on behalf of a California non-profit, the Praxis Project, which has had to devote resources to correcting the misleading messages that Coke and the ABA have disseminated. These include spreading the notion that the main cause of obesity is lack of exercise or that “a calorie is a calorie,” regardless of whether it comes from Coke or from kale. The science, in fact, shows that sugary drinks such as Coca-Cola have been found to play a real role in the obesity crisis and that calorie intake is more significant than calorie expenditure in terms of the problems of obesity and overweight. The lawsuit also accuses Coke of failing to comply with its pledge to not market to children.  The action alleges violations of California’s Business and Professional Code as well as negligent and intentional breaches of a special duty to protect the consuming public.

The plaintiffs seek a court order to enjoin Coke and ABA from denying the link between sugary drinks and obesity, diabetes, and cardiovascular disease and to stop any marketing to children.  They also seek a court order for defendants to disclose and publish all research they have directly or indirectly conducted on the impact of sugary beverages on health and the impact of exercise on obesity vs sugary drink consumption.  Furthermore, the plaintiff asks the court to order the defendants to fund a corrective public education campaign and place prominent warnings on their internet sites that consumption of sugary beverages can lead to obesity, diabetes, and cardiovascular disease.

The attorneys for the plaintiff include Maia C. Kats, litigation director of the nonprofit Center for Science in the Public Interest; Andrew Rainer, litigation director of the nonprofit Public Health Advocacy Institute; and Michael R. Reese of the law firm Reese LLP.

PHAI attorney Andrew Rainer considers this lawsuit to be about defending science from manipulation by those who seek to increase profit at the expense of public health. Rainer says, “the Public Health Advocacy Institute has joined in this complaint in an effort to prevent the distortion of science for corporate gain. Just as the tobacco industry manipulated and distorted science for decades to deny the dangers and addictiveness of cigarettes, and the oil industry works to systematically distort science to deny climate change, Coca Cola and the American Beverage Association are engaged in a campaign to deny the established science linking sugar-sweetened beverages to obesity and diabetes.”

Mark Gottlieb, executive director of the Public Health Advocacy Institute, characterizes this filing as, “the tip of the iceberg when it comes to purveyors of sugar-added products seeking to shift all responsibility for health harms to their consumers. Coke pays dietitians to tell consumers things like drinking coke can be a healthy snack and pays scientists to deny that sugary drinks are linked to obesity and then suggests that the main cause of obesity and related disease is lack of exercise. The hypocrisy of suggesting to consumers that burning calories through laughing can offset the harmful effects of drinking soda is no laughing matter. And, yes, Coke really suggested that.”

PHAI’s partner, the Center for Science in the Public Interest included the following bullet points from the complaint in its press release.

The Public Health Advocacy Institute set up its Center for Public Health Litigation in 2014 in order to hold responsible corporate interests that harm public health and defend policies that protect public health.



Northeastern University School of Law to Host Conference Examining Individual Choice and Public Health

Friday, February 26th, 2016

nulsconf

Are individuals responsible for their own health?

Or does the health of individuals depend upon the health of their communities? And, can we have healthy communities without restricting individual choice? Conflicts between individual choice and collective action underlie many of the most contested and challenging debates relating to health and health care, from the very existence of Obamacare to government responses to the obesity and tobacco epidemics.

This conference will bring together legal and public health scholars and practitioners from across the country to discuss and chart the role of individual choice and public action in response to these —- and many more —-public health debates.

Keynote Speaker
Jon Hanson
Alfred Smart Professor of Law
Director, Project on Law and Mind Sciences
Harvard Law School

Eden Wells
Chief Medical Executive
Michigan Department of Health and Human Services

Conference Details and Registration Info

Friday, April 15, 2016
8:00 am – 4:30 pm

Raytheon Amphitheater
Egan Research Center
Northeastern University
Boston, MA 02115



PHAI Finds Online Fantasy Sports Gambling Operators in “Clear” Violation of Massachusetts Law

Monday, October 26th, 2015

A review by a prominent public interest law organization based in Boston revealed that online sports gambling operators like DraftKings are in “clear” violation of Massachusetts law.

The findings were included in an October 16th legal memo to Attorney General Maura Healey’s office that was prepared by the Public Health Advocacy Institute (PHAI) at Northeastern University.

PHAI, led by Northeastern University Distinguished Professor of Law Richard Daynard, is nationally-recognized for its effective legal advocacy combating the epidemics caused by tobacco and obesity.

In contrast, Attorney General Healey, has publicly said the law regarding online fantasy sports gambling is “unclear.”

“The lack of any action to stop the illegal business of online fantasy sports gambling and look the other way or wait until some future legislative action allows it sends the wrong message: that it is acceptable to engage in an illegal business now and, if it generates enough revenue, wait until lobbyists and corporate interests change its legal status,” said Mark Gottlieb, Executive Director of PHAI.

PHAI conducted its review after being contacted by Stop Predatory Gambling, a national government reform group against state-sponsored gambling operations.

The findings of PHAI’s review include:

“The internet gambling operations run by DraftKings and FanDuel are predatory, deceptive, illegal and coming at the expense of everyday citizens,” said Les Bernal, National Director of Stop Predatory Gambling.

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After Settlement, PHAI Continues Commitment to Ending Youth Access to MA Lottery Ticket Vending Machines

Tuesday, October 6th, 2015

FOR IMMEDIATE RELEASE
Contact:  Mark Gottlieb at (617) 373-2206

-Boston

As part of its mission to end youth access to lottery ticket vending machines in Massachusetts, the Public Health Advocacy Institute (PHAI) announced today that it has settled a lawsuit with Star Markets.

In March, PHAI, a non-profit organization based at Northeastern University, brought suit against the supermarket chain in the Massachusetts Superior Court on behalf of the Stop Predatory lotteryGambling Foundation and Cambridge City Councilor Craig Kelley, who alleged that his teenage son had been able to use lottery ticket vending machines at two Star Market stores.

Under the settlement, Star Markets commits to using an age verification device that the Massachusetts Lottery Commission recently installed on all lottery ticket vending machines in Star Markets’ Massachusetts stores.  The device prohibits a person from using the vending machine until a driver’s license or government-issued identification card demonstrating that the user is at least 18-years-old is scanned.

Plaintiff Councilor Kelley observed, “My son and I are very happy to have been part of this effort to protect children in Cambridge and throughout Massachusetts.”

Andrew Rainer, Litigation Director of PHAI, applauded Star Markets for ensuring that the vending machines in its stores are not used by children.  “Unfortunately,” he noted, “there are still almost 1,200 older lottery ticket machines in the state that don’t yet have the age-verification technology,” He continued by noting that “some of those machines are located in kid-friendly locations, like bowling alleys and convenience stores.”

 



Top Boston Firms Join Forces with Public Health Advocacy Institute

Monday, September 21st, 2015

FOR IMMEDIATE RELEASE
Contact:  Mark Gottlieb or Andrew Rainer  617-373-2026

In March, the non-profit Public Health Advocacy Institute (“PHAI”) announced that it had formed a center to bring important public health litigation, and had hired a former Assistant Attorney General to oversee this litigation in the Massachusetts courts.  Today, PHAI, which is based at Northeastern University, announced the filing of its latest suit, and also the formation of a strategic alliance with a group of prominent Boston lawyers to pursue important public health cases, including cases against the tobacco industry on behalf of the families of former smokers who have suffered devastating disease from cigarettes.

“We are so pleased to be working with this outstanding group of lawyers to help some of tobacco’s victims in Massachusetts,” said Andrew Rainer, PHAI’s Litigation Director and Director of the Center for Public Health Litigation.  Working together with PHAI will be:

PHAI’s latest suit, filed today in Middlesex Superior Court in Woburn together with Perkins and Brody, Hardoon, Perkins & Kesten, LLC, is brought on behalf of Linda Troupe and her husband Carleton against R.J. Reynolds Tobacco Company of Winston-Salem, North Carolina, and Donelan’s Supermarkets, Inc. of Littleton, Massachusetts.  Mrs. Troupe, who smoked Winston and Kool cigarettes for over 35 years, was diagnosed in 2013 with throat cancer.  The suit alleges that, in order to treat Mrs. Troupe’s cancer, doctors had to remove her larynx, and she has lost most of her ability to speak with her four children and eleven grandchildren.

Arrowood, Peters, DeWick and Leifer will be working with PHAI on two cases previously filed in the Middlesex Court — the first brought for the family of James Flavin, Jr., a former executive of Filene’s and Staples, who died of lung cancer in 2012 after smoking Newport cigarettes for over 40 years, and the second brought for Patricia Greene, a Newton realtor, who was diagnosed with lung cancer in 2013, even though she had stopped smoking Marlboro cigarettes 25 years earlier.

Arrowood is the current President of the Boston Bar Association, and a fellow of the American College of Trial Lawyers.  Perkins is a founding partner of Brody, Hardoon, Perkins & Kesten, and a previous Lawyer of the Year.  Leifer, a former partner of Thornton & Naumes (now the Thornton firm), represented the Commonwealth of Massachusetts in its successful litigation against the tobacco industry to recover the health care costs incurred by the state in caring for residents harmed by smoking.  Boyle and Yarashus are past Presidents of the Massachusetts Bar Association.  Boyle also served as President of the Association of Trial Lawyers of America (now the American Association for Justice), and is a fellow of the American College of Trial Lawyers.

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Stop & Shop Responds to PHAI’s Demands to Prevent Sales of Scratch Tickets to Kids

Wednesday, August 5th, 2015

In 2014 and 2015, the Public Health Advocacy Institute (PHAI) conducted testing to determine whether kids could purchase lottery tickets from the vending machines located in a number of area supermarkets.  At markets in Cambridge, Somerville, and Arlington, Massachusetts, a teenage tester was easily able to purchase lottery tickets in every attempt.

Massachusetts law expressly prohibits the sale of lottery tickets to “any person under age eighteen.” Yet the Massachusetts Council on Compulsive Gambling reports that over two-thirds of teenage boys (aged 14-17) have gambled in the past year, and over half of teenage girls have done so. About a third of these children gambled by playing lottery games.

somerville stop and shop 8-1-15

Stop & Shop lottery vending machine with scanner in Somerville, MA

On March 10, 2015, PHAI sent Stop & Shop a legal demand under Massachusetts’ consumer protection law, on behalf of the father of the teenage purchaser, Cambridge City Councilor Craig Kelley, and on behalf of the national non-profit Stop Predatory Gambling Foundation, seeking steps to prevent children from using the lottery ticket vending machines in the company’s stores. According to the demand letter, selling the tickets to minors is an unfair and deceptive sales practice prohibited by law.

The action drew media attention and led to an editorial in the Boston Globe urging that the problem be addressed.  Representatives from Stop & Shop responded by working with the Massachusetts Lottery Commission to activate drivers’ license scanners in the lottery ticket machines, which operate to confirm that a lottery ticket purchaser is at least 18 years old before the machine will vend a ticket.  Stop & Shop informed PHAI last week that all of its lottery ticket vending machines would have these protections in place by the end of July, 2015.

PHAI staff spot checked Stop & Shop machines in 3 counties and found that its machines will, in fact, not operate without first scanning an adult driver’s license.

Cambridge City Councilor Kelley said he was pleased to see some progress made. “It’s a real problem,” Kelley said. “As a father and as a city councilor, I was truly shocked at how easy it was for a kid to buy tickets from these machines.”

Mark Gottlieb, executive director of PHAI, noted that “While Stop & Shop’s efforts to quickly address the problem are laudable, the vast majority of lottery ticket vending machines in the state don’t have driver’s license scanners. This includes many places like bowling alleys and convenience stores that are frequented by kids.” Gottlieb added that “we will continue to work to prevent sales of scratch tickets to kids through vending machines as a public health policy measure.”



PHAI Takes Cigarette Companies to Court

Thursday, March 26th, 2015

For Immediate Release
Contact:  Mark Gottlieb  –  
617-373-2026

       The Public Health Advocacy Institute (“PHAI”) announced today that its newly formed Center for Public Health Litigation has filed lawsuits against two major tobacco companies and several local distributors on behalf of the families of two former smokers who suffered devastating disease from smoking cigarettes.

“This is the first time a non-profit organization has directly taken on the tobacco industry in court,” said Richard Daynard, University Distinguished Professor at Northeastern University School of Law and the President of PHAI.  “Big Tobacco kills more than 50% of the people who buy its products, and it has for years tried to deny its legal responsibility for this public health calamity. The Center for Public Health Litigation is going to ask the Massachusetts courts to hold the tobacco companies accountable in these two cases, and in more cases to be filed soon.”

The two cases were filed yesterday afternoon in the Middlesex Superior Court in Woburn. The first was brought for the family of James E. Flavin, Jr., a former executive of Filene’s and Staples, who died of lung cancer in 2012 after smoking Newport cigarettes for over 40 years.  Mr. Flavin had tried repeatedly to quit smoking, using almost every method he could find, including

James E. Flavin, Jr.

James E. Flavin, Jr.

nicotine patches, hypnosis, and numerous other cessation products.  The companies named as defendants in Mr. Flavin’s case are Lorillard Tobacco Company, manufacturer of Newport cigarettes, and two local distributors, Garber Bros, Inc. of Stoughton and Albert H. Notini & Sons, Inc. of Lowell.

The second case was brought for Patricia Greene, a Newton realtor, who was diagnosed with lung cancer in 2013, even though she had stopped smoking 25 years earlier.  Ms. Greene, like many others, had begun smoking as a result of being given free Marlboro cigarettes in downtown Boston when she was a teenager.  The companies named as defendants in Ms. Greene’s case are Philip Morris USA, Inc., manufacturer of Marlboro, and Star Markets Company, Inc. of West Bridgewater, owner of the store where Ms. Greene bought her cigarettes for years.

According to Andrew Rainer, the Director of the Center for Public Health Litigation, “Massachusetts is now the best state in the country in which to bring suit against the manufacturers and sellers of cigarettes, because of a 2013 ruling by the Massachusetts Supreme Judicial Court.”  In that 2013 case, Evans v. Lorillard Tobacco Co., the Court ruled that a manufacturer of cigarettes could be held responsible for the death of one of its customers, because it could have manufactured a cigarette that was safer and less addictive, but chose not to. The high Court’s decision also upheld an award of damages to the deceased customer’s family of $35 million plus interest. The case was later settled for $79 million.

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Download Flavin v. Lorillard complaint.
Download Green v. Philip Morris complaint.



PHAI Begins Legal Action against Star Markets Over Illegal Lottery Ticket Sales To Minors

Tuesday, September 30th, 2014

The Public Health Advocacy Institute (PHAI) today sent a demand letter to the Star Markets supermarket chain, charging the company with violating the Massachusetts Consumer Protection Act by illegally selling lottery tickets to minors.  The letter calls on Star Markets to remove lottery scratch ticket vending machines from its stores.

PHAI sent the letter on behalf of Craig Kelley, the father of a 14-year old boy who purchased lottery tickets from vending machines at two Star Market locations, and also on behalf of the Stop Predatory Gambling Foundation.  The Foundation is a national non-profit organization with an office in Massachusetts, whose mission is to end the unfairness and inequality created by government-sponsored gambling.

ckfrenzy

According to the letter, Massachusetts law expressly prohibits the sale of lottery tickets to “any person under age eighteen” (G.L. c. 10, sec. 29).  Yet, the Massachusetts Council on Compulsive Gambling reports that over two-thirds of teenage boys (aged 14-17) have gambled in the past year, and over half of teenage girls have done so.  About a third of these children gambled by playing lottery games.

The boy’s father, Craig Kelley, said, “Both my son and I were amazed at how easily a 14 year-old boy could walk into a major supermarket and buy lottery tickets from a vending machine.  This easy access to gambling simply does not give our children the safe environment that we owe them, and we need to stop it.”

The boy purchased the lottery tickets on the evening of September 24 at the Star Market stores in Porter Square in Cambridge, and on Beacon Street in Somerville.  He was able to get access to the machines and purchase Mega Millions and $500 Frenzy game tickets without any difficulty, and without being asked to provide any proof of age.

“The future of lotteries and casinos hinges on luring kids to develop a gambling habit,” said Stop Predatory Gambling’s National Director Les Bernal of Lawrence. “Our state government appears to be training kids with these free-standing lottery machines and their addictive scratch tickets – training them for slot machines in casinos.”

Northeastern University Professor Richard Daynard, President of PHAI, also addressed the implications for casinos:  “If a basic protection like age restrictions on the sale of state lottery tickets is not being enforced, what can we expect if casinos and slot parlors are actually allowed to open in Massachusetts?”

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Florida jury holds Philip Morris USA accountable for its actions in Federal Court

Thursday, September 25th, 2014

On September 16, 2014, a jury in the U.S. District Court for the Middle District of Florida returned a verdict of $27,010,000.14 against Philip Morris USA on behalf of Judith Berger, who started smoking in 1958 at the age of 14.  Clearly outraged by evidence of Philip Morris’ conduct in targeting children, the jury awarded over $20 million in punitive damages and added fourteen cents to the total.  Judith Berger, as did her now-deceased twin sister, developed severe chronic obstructive pulmonary disease (COPD) from smoking.

Kenny Byrd, the lead trial counsel for Lieff Cabraser, which represented the plaintiff, was delighted with the verdict.  “We are pleased that the jury held Philip Morris accountable for their calculated choice to target children, such as Mrs. Berger, to take up smoking.  The addition of the 14 cents is just as meaningful as the $20 million before it.  The jury understood our society should protect 14-year-olds, not target them for profits as the cigarette industry does.”

One of the pieces of evidence presented to the jury was a Philip Morris memo that said “today’s teenager is tomorrow’s regular customer.”

This case in federal court is one of thousands of “Engle Progeny” lawsuits that were filed following the Supreme Court of Florida’s 2006 ruling in Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006).  The trials in these lawsuits, which began in February 2009, have resulted in plaintiff verdicts in approximately two-thirds of the 120 such trials that have reached a jury verdict.  While most of these cases are being tried it state court, it is encouraging to see plaintiff victories occurring in federal court as well.

Not surprisingly, Philip Morris relied on its well-worn “personal responsibility” defense as its main attempt to evade accountability.  Plaintiff co-counsel Lance Oliver of Motley Rice LLC, commented that, at trial, “Philip Morris attempted to lay all the blame on Mrs. Berger for choices she made as a kid.  Thankfully, the jury saw through this and held Philip Morris accountable for its choices.”

When juries learn the details of outrageous tobacco industry behavior, the end result will be more verdicts – including punitive damages – comparable in size and scope as the one in this case.  After the verdict, Mrs. Berger reacted as follows: “I am so grateful that the jury held Philip Morris accountable for its actions over the past 60 years.  Before this lawsuit, I had no idea that the tobacco industry deliberately designed cigarettes to make them addictive and then conspired to lie to the public about their deadly effects.  I fought this battle in part for my twin sister Josephine – may she rest in peace – who died from the same disease that will take my life in the next few years.  I encourage anyone whose rights are violated by Philip Morris – or any corporation – to stand up, fight for justice and hold them accountable for their actions.”

Achieving justice and holding powerful corporations accountable for their wrongdoing: that’s what the Engle Progeny litigation is all about.

-Ed Sweda



PHAI’s Gottlieb and Wilking Co-author study in JAMA Pediatrics Showing that Fast Food Giants Confuse and Deceive Kids

Monday, March 31st, 2014

 

Boston –

After much criticism and prodding, Fast food giants McDonald’s and Burger King agreed to depict healthier food options in advertising directed at children.  Researchers at the Norris Cotton Cancer Center at Dartmouth-Hitchcock, along with the Public Health Advocacy Institute (PHAI) at Northeastern University School of Law, found that attempts to honor these pledges by depicting healthier kids’ meals frequently go unnoticed by children ages 3 to 7 years-old.  In research published on March 31, 2014 in JAMA Pediatrics, these researchers found that one-half to one-third of children did not identify milk when shown McDonald’s and Burger King children’s advertising images depicting that product. Sliced apples in Burger King’s ads were identified as apples by only 10 percent of young viewers; instead most believed that the ads were depicting  french fries. 

Children in the study were confused by the images of food.  One typical participant said, “And I see some…are those apples slices?” 

The researcher replied, “I can’t tell you…you just have to say what you think they are.”

“I think they’re french fries,” the child responded.


Video of this and other responses from children participating in the study

“Burger King’s depiction of apple slices as ‘Fresh Apple Fries’ was misleading to children in the target age range,” said principal investigator James Sargent, MD, co-director Cancer Control Research Program at Norris Cotton Cancer Center. “The advertisement would be deceptive by industry standards, yet their self-regulation bodies took no action to address the misleading depiction.”

Mark Gottlieb, Executive Director of PHAI and an author of the study, observed that, “when young children believe they will be getting french fries with their meals because of deceptive or confusing advertising imagery, they may insist that the adult bringing them orders french fries instead of apple slices. Likewise, if advertising leads children to expect a sugary drink rather than milk, they may well end up getting the sugary drink. This has the effect of undermining the self-regulatory pledges that the companies made.”

Study author and PHAI Senior Staff Attorney Cara Wilking said she found it, “troubling that fast food giants would publicly make a self-regulatory pledge, fail to live up to the pledge, and receive no sanction from the relevant self-regulatory body. Such failures suggests that self-regulation is often more about public relations than about fulfilling the role of actual governmental regulation.”

Sargent and his colleagues studied fast food television ads aimed at children from July 2010 through June 2011. In this study researchers extracted “freeze frames” of Kids Meals shown in TV ads that appeared on Cartoon Network, Nickelodeon, and other children’s cable networks. Of the four healthy food depictions studied, only McDonald’s presentation of apple slices was recognized as an apple product by a large majority of the target audience, regardless of age. Researchers found that the other three presentations represented poor communication.

This study follows an earlier investigation conducted by Sargent and his colleagues, which found that McDonald’s and Burger King children’s advertising emphasized giveaways like toys or box office movie tie-ins to develop children’s brand awareness for fast food chains, despite self-imposed guidelines that discourage the practice.

While the Food and Drug Administration and the Federal Trade Commission play important regulatory roles in food labeling and marketing, the Better Business Bureau operates a self-regulatory system for children’s advertising. Two different programs offer guidelines to keep children’s advertising focused on the food, not toys, and, more specifically, on foods with nutritional value.

“The fast food industry spends somewhere between $100 to 200 million dollars a year on advertising to children, ads that aim to develop brand awareness and preferences in children who can’t even read or write, much less think critically about what is being presented.” said Sargent. 

Citation:

Bernhardt AM, Wilking C, Gottlieb M, Emond J, Sargent JD. Children’s Reaction to Depictions of Healthy Foods in Fast-Food Television Advertisements. JAMA Pediatr.2014;():. doi:10.1001/jamapediatrics.2014.140.

This study was funded by the Robert Wood Johnson Foundation’s Healthy Eating Research program.




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Northeastern University School of Law