• encourages teens to engage in dangerous behavior;
• sequences historical events to falsely enhance the role of Gatorade in Mr. Jordan’s game-winning athletic performance; and
• contains deceptive product imagery.

The “Win from Within” ad series is designed to target teens, and the campaign is intended to deliver sports nutrition information to teens. PepsiCo’s media buys for the Gatorade Jordan Ad also appear to target teens. The average U.S. teen (12-17 years) saw 1.85 of these ads during the first quarter of 2012, 22% more ads than adults saw. More than half of this exposure occurred on teen-targeted cable networks, including Adult Swim, Teen Nick, ABC Family, and MTV.

PepsiCo has put itself in the position of being a messenger of sports nutrition and health information to its core Gatorade product demographic of teens. There is already enormous pressure on teen athletes to win at all costs by practicing during extreme heat and playing through injuries. The Jordan Ad creates the distinct impression that so long as you are drinking Gatorade you should not sit out a game or stay home when you are seriously ill with a fever. This message contravenes the medical recommendations for people suffering from flu-like symptoms and fever and puts teens in danger. The FTC should order PepsiCo to engage in corrective advertising that advises teens to not engage in physical activity when they have the flu or are suffering from a fever, describes the dangers of competing in sports when ill, and clearly states that Gatorade is not intended to be used to enhance the athletic performance of teens who are suffering from the flu or a fever.

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Contact:  Edward L. Sweda 617-373-8462

Tobacco companies face the prospect of having to pay billions of dollars in liability to Florida smokers after the U.S. Supreme Court today denied Reynolds American’s petition for certiorari in the case of R.J. Reynolds Tobacco Co. v. Mathilde Martin, No. 11-754.

The company had appealed a $28.3 million judgment against Reynolds for the death of Benny Ray Martin, the husband of Mathilde Martin. Her case is one of thousands of “Engle Progeny” lawsuits in Florida, cases that followed the landmark 2006 ruling by the Florida Supreme court in Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006).

Edward L. Sweda, Jr., Senior Attorney for the Tobacco Products Liability Project (a project of the Public Health Advocacy Institute based at Northeastern University School of Law in Boston) was ecstatic to learn of the denial of Reynolds’ cert petition. “At long last, Reynolds and the other major tobacco companies will be held accountable for their massive and reprehensible misconduct that harmed thousands of Florida smokers. As Reynolds’ own lawyers have concluded, denial of its cert petition is a very big deal indeed,” Sweda said.

In arguing in December 2011 that its petition should be granted, Reynolds’ attorneys (Paul D. Clement of Bancroft PLLC, Gregory G. Katsas of Jones Day and Eric E. Murphy of Jones Day) claimed that in “their conduct of Engle progeny litigation, the Florida state courts are engaged in serial due-process violations that threaten the defendants with literally billions of dollars of liability.” (emphasis added) Moreover, “the massive liability imposed on the Engle defendants – which currently stands at over $375 million in adverse judgments – will… steadily increase as Engle progeny trials continue with no end in sight.” (emphasis added).

TPLP Director, Mark Gottlieb, noted that, “while cigarette companies’ statements are often thought to be disingenuous, in the case of Reynold’s Petition to the Court, it is absolutely true that the Engle cases create ‘massive liability’ with ‘no end in sight.’” Gottlieb added: “But the industry’s liability is not limited to these cases.  Verdicts like the Evans case in Boston ($81 million) and Schwarz in Oregon ($25 million) can and should become more commonplace beyond the Sunshine State.”

Currently, of the 61 Engle Progeny cases that have reached a verdict (not counting mistrials), 41 have been plaintiff verdicts (one of which was overturned on appeal on statute of limitations grounds and is being further appealed) and 20 have been defense verdicts, with thousands of cases awaiting trial. “Today is a great day for thousands of Florida residents who turned to the American judicial system to seek justice,” Sweda concluded.

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In the Letourneau case, the plaintiffs demand a payment of $5000 to each addicted Quebec smoker as compensation for his or her addiction, while the plaintiffs in the Blais case demand $100,000 in compensation for each Quebec smoker who has suffered from lung cancer, emphysema, larynx cancer or throat cancer.   The estimate for the total amount sought in these two cases is $27 billion (Can).

The cases were certified as class actions in 2005.  Three years later, each of the tobacco company defendants brought in the federal government as third party defendants.

Rob Cunningham, senior policy analysts for the Canadian Cancer Society, told the Montreal Gazette that the trial is “a chance to find out what the industry knew, when they knew it and how they used the information.”   A daily blog is available for updates on the trial, which is expected to last at least two years, at http://tobaccotrial.blogspot.com

-Edward Sweda

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Contact: Edward L. Sweda, Jr. (617) 373-8462

A Florida state jury today assessed $25 million in punitive damages against Lorillard Tobacco Co. for its reprehensible misconduct involving the lung cancer death of Coleman Alexander.  His widow Dorothy, a retired nurse who brought a wrongful death lawsuit against the company, was awarded $20 million in compensatory damages last week.

Edward L. Sweda, Jr., Senior Attorney for the Tobacco Products Liability Project (TPLP), of the Public Health Advocacy Institute (PHAI) which is based at Northeastern University School of Law in Boston, was delighted by the jury’s verdict.  “This jury was justifiably outraged by the reprehensible behavior of Lorillard, whose actions were found to be a legal cause of Mr. Alexander’s death from lung cancer,” Sweda said.  “The award is absolutely appropriate given the facts of what Lorillard has done,” he added.

Mark Gottlieb, who directs TPLP, noted that, “the liability shadow hanging over the cigarette industry won’t go away with thousands of more cases lined up for trial in Florida and beyond.”

Coleman Alexander died in 1995 from small cell lung cancer after having smoked for more than 40 years.  One of the brands he had smoked, Kent, was manufactured by Lorillard.  The jury last week found that Mr. Alexander was addicted to cigarettes containing nicotine and that his addiction was a legal cause of his death.

Since February 2009, verdicts (not counting mistrials) in Engle Progeny trials in Florida have been 41 for plaintiffs and 19 for the tobacco companies, for a winning percentage for the plaintiffs of 68.3%.  One of those 41 plaintiff verdicts has been overturned on appeal.

Dorothy Alexander is represented by Alex Alvarez of the Alvarez Law Firm, by Gary Paige of the Paige Law Firm and by Jordan Chaikin of Parker Waichman LLP.  The case is The Estate of Coleman Alexander v. Lorillard Tobacco Co., case number 2007-046830-CA-01.

The Tobacco Products Liability Project is a project of the Public Health Advocacy Institute (PHAI) at Northeastern University School of Law in Boston, MA. PHAI is an independent federally recognized non-profit charity.

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The FDA defines health claims to include “any claim made on the label or in labeling of a food…that expressly or by implication, including ‘third party’ references, written statements (e.g., a brand name including a term such as ‘heart’), symbols (e.g., a heart symbol), or vignettes, characterizes the relationship of any substance to a disease or health-related condition.” 21 CFR § 101.14 (a)(1). In its food labeling guidance the FDA states, “ health claims characterize a relationship between a substance (specific food component or a specific food) and a disease (e.g., lung cancer or heart disease) or health-related condition  (e.g., high blood pressure), and are supported by scientific evidence (see 21 CFR 101.1472).” FDA, Guidance for Industry: A Food Labeling Guide (April 2008), http://www.fda.gov.  The use of the heart symbol, the phrase “The Heart Truth” and the reference to a national health organization implies that Diet Coke consumption is beneficial to heart health. This claim is not supported by scientific evidence and is not otherwise allowed under FDA regulations.

This type of misbranding is especially damaging to the public because it unequivocally links the product to a desired health outcome through multiple uses of the word “heart” and the use of a heart symbol—expressly the type of symbols, third party references and words the FDA references in its regulations and guidance on health claims for the food industry. The FDA should act immediately to investigate The Coca-Cola Company’s unlawful use of this health claim, issue the appropriate warning letter and take enforcement action as necessary.

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Like a good mother, General Mills loves all of her “Big G” cereals the same. Consumers, however, should not. The company has chosen to market all of its Big G cereals as containing “More Whole Grain Than Any Other Ingredient*” (the asterisk takes you to the disclaimer “*as compared to any other single ingredient”). The side panel states “That’s why it’s first on the ingredient list” and tells consumers the USDA suggests looking for foods that list whole grains first. A recent report by the Environmental Working Group found that parents should be especially aware of sugar content when buying breakfast cereals for children.

Federally mandated weight-based cereal serving sizes, and the industry sponsored front-of-package Nutrition Keys labeling scheme has meant that when consumers compare calories most cereals look just about the same. The Big G cereals Wheaties, Kix, Lucky Charms, Cookie Crisp, and Cinnamon Burst Cheerios all have 100 or 110 calories per serving. But sugar content and serving size by volume varies widely. For example, Kix and Cinnamon Burst Cheerios both list 110 calories per serving, but Kix has just 3 grams of sugar per 1 ¼ cup serving while the pre-sweetened Cheerios product has 9 grams of sugar per 1 cup.

General Mills’ use of a uniform campaign for its Big G cereals is designed to make its entire portfolio of products look healthy by distracting attention from sugar content. Its website even features a page about sugar  comparing plain Cheerios (1 gram of sugar per serving) to Trix (10 grams of sugar per serving ) that asks: “From a calorie and nutrient standpoint, are both products a good breakfast choice?” The answer:  “Yes, they are. In fact, all General Mills cereals are lower calorie, nutrient dense choices.”

Perhaps this campaign is a sign that its sugary cereals are losing market share? If it is, General Mills should put its resources into developing breakfast products that are actually healthy for children instead of trying to prop up sugary cereal sales with claims about whole grain content.

New Big G Cereal Boxes

Big G Cereal Box Side Panel

Lucky Charms Box

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The passage of San Francisco’s Healthy Food Incentives Ordinance and McDonald’s recent decision to “comply” with the law by charging 10 cents in order to be able to include toys with meals that do not meet minimal nutritional criteria has engendered a lot of public debate. The following table summarizes information from a 2005 Massachusetts Appellate Tax Board decision with Happy Meal cost information from the period between 1999 and 2001:

Toy, Food, Condiment & Paper Costs to McDonald’s Restaraunts of Massachusetts (1999-2001) in US Dollars

For the periods covered, McDonald’s reported that it paid its toy supplier 43 cents per toy. The total cost to McDonald’s for the toy and packaging of the Happy Meals was greater than the cost of food for each Happy Meal type. McDonald’s included a toy with every Happy Meal and sold the toys separately for a retail price of $1.69. The company  noted that it had a dedicated key on its registers in order to process separate toy sales.

In an issue advertisement run by McDonald’s explaining its 10 cent Happy Meal toy plan, the company wrote: “we feel a responsibility to our customers – including parents…who would like to have the option of purchasing…[a toy] separately for their kids.” In reality, prior to the ordinance all customers, including parents, had the option to purchase a toy separate from a Happy Meal. To comply with the letter and the spirit of San Francisco’s ordinance, McDonald’s could have stopped putting toys in with Happy Meals that did not meet nutritional criteria. Customers wanting to buy a toy separately, including parents, would then be treated as they always have been—rung up using the dedicated register key and charged the retail price of the toy.

The good news is that, as Michele Simon points out, there is an easy legal fix to the 10 cent toy strategy. In the short term, McDonald’s response amounts to an incredible missed opportunity to break away from a business model whereby the inedible portion of its children’s meals cost more to produce than the edible portion. The cost spent on toys could be spent to improve the nutritional profile of its children’s menu. The result could have been less trash in the form of discarded toys, a boon to fruit and vegetable producers all over the United States who supply McDonald’s, and, most importantly, healthier kids.

FOR MORE INFORMATION ABOUT PESTER POWER MARKETING STRATEGIES PLEASE SEE OUR PESTER POWER ISSUE BRIEF.

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Deceptive and unfair marketing to promote high-calorie low-nutrient foods and beverages affect parent-consumer food purchasing decisions and induce demand among children for products that contribute to obesity and overweight. Such marketing campaigns can run afoul of an array of legal authorities that provide consumer protection from such practices.

PHAI conducted extensive 50-state research examining the provisions of state consumer protection laws of the United States that prohibit unfair, deceptive or unconscionable sales and marketing campaigns. Depending on the state, these consumer protection laws may be used by stakeholders in child health, including parents, as well as state attorneys general to stop unfair or deceptive marketing and advertising of unhealthy food and beverage products linked to overweight and obesity in children and adolescents.

The research focuses on the legal limits of: (1) direct marketing to children and teens in an effort to get them to use their own spending money to purchase food products for themselves; and (2) “pester power” marketing that targets children in an effort to get them to persuade their parents into buying products for them. To make it easy to find and compare state consumer protection laws, we have created an  interactive map linking to consumer protection law profiles of every state and the District of Columbia.

Key findings of our state consumer protection research also are summarized in a report and a legal issue brief:

• Major Findings from 50-State Survey of State Consumer Protection Law to Limit Junk Food Marketing to Children by Cara Wilking, JD and Mark Gottlieb, JD summarizes and contextualizes our research (pdf).
• Reining in Pester Power Food and Beverage Marketing by Cara Wilking, JD applies our research to food marketers who appeal to kids’ ability to nag adults to purchase unhealthy foods (pdf).

A clear understanding of consumer protection rights and the sources of their legal authority will provide guidance for policymakers and advocates for children’s health who seek to curb these practices without the need for new legislation and regulatory measures.

Click to vist our interactve consumer protection map

This research was supported by the Robert Wood Johnson Foundation’s Healthy Eating Research Program (#66968).

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U.S. District Court Judge Stefan R. Underhill on Friday denied R.J. Reynolds’ motion for a new trial or for judgment as a matter of law in the case of Izzarelli v. R.J. Reynolds Tobacco Co. Barbara Izzarelli smoked Salem King cigarettes for 25 years until she was diagnosed and treated for larynx cancer at the age of 36. On May 26, 2010, a Connecticut jury determined that RJR was 58% responsible for her injuries and that Ms. Izzarelli was 42% responsible for her injuries.

An amended judgment, which includes punitive damages ($3,970,289.87) and interest, amounted to $28,079,629.27. Ms. Izzarelli is represented by Silver, Golub & Teitell of Stamford, CT. The firm’s telephone is 203-325-4491.

Judge Underhill concluded his ruling as follows: “R.J. Reynolds’ motion for a new trial or for judgment as a matter of law raises a myriad of claims, issues and arguments. Many of the assertions made in support of its motion fail the straight-face test and rely on a wholly inaccurate description of the trial record. Although this ruling does not address every one of R.J. Reynolds’ arguments, I have considered them all and find them to be meritless. Accordingly, R.J. Reynolds’ motion for judgment as a matter of law, or in the alternative for a new trial, is denied.”

Edward L. Sweda, Jr., Senior Attorney for the Tobacco Products Liability Project (TPLP) based at Northeastern University School of Law in Boston, described Judge Underhill’s ruling as a “resounding repudiation of R.J. Reynolds’ legal arguments and distortions of the trial record.”

The ruling is available for download from tobacco-on-trial.com

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