2013-01-16 16:29:34 - WASHINGTON, D.C. (January 16, 2013): Despite media speculation that Coca-Cola's new ad campaign is aimed in part at shielding it from obesity legal actions, the ads may in fact trigger new fat law suits by providing a new basis for activist lawyers concerned about obesity, says the man behind the ten fat law suits which have already been successful, including one targeting the sale of what has been called "liquid candy."
Coke’s new campaign states that "all calories count, no matter where they come from," and suggests that the calories from its sugary soft drinks have no greater tendency to contribute to obesity in children and others than calories from other sources.
But there is a growing body of evidence, and perhaps a consensus among impartial experts, that the calories found in sugary soft drinks are substantially more likely to contribute to obesity, says a law professor who has been called "a Major Crusader Against Big Tobacco and Now Among Those Targeting the Food Industry."
One reason is that calories in solid foods like burgers or fries cause sharp drops in levels of Ghrelin – a hormone which tells the
body that it's time to consume more food – thereby curbing the urge to eat again, but even the same or even many more calories in liquids like sodas don't have the same effect.
Thus calories in soda don't satisfy the urge to eat as calories in many other foods do. "We're finding your hunger does not go down as far when you consume a beverage, as when you consume a solid," reported Wayne Campbell, a professor in the Department of Foods and Nutrition at Purdue University
Also, the sugar in sodas suddenly dumps a large number of calories into the body where they are very quickly absorbed, triggering a vicious appetite cycle by raising blood sugar and forcing the body to release large amounts of insulin into the blood to break it down. But then the body overcompensates, forcing blood sugar to drop below the fasting level, and inducing the body to demand even more food.
There also appear to be very important differences between the calories in high-fructose corn syrup [HFCS], and calories ingested in other forms. As FORBES has reported:
"Is the stuff that makes soda sweet as bad for you as the nicotine in a cigarette? No one has scientifically proven that high-fructose corn syrup--the cheap and supersweet concoction that has all but replaced sugar in most leading brands of soda and other foods--is the primary cause of the so-called obesity epidemic in the United States.
But that hasn't stopped a cottage industry of self-appointed consumer advocates, reporters and plaintiffs' attorneys from fingering corn syrup as the sinister source of the nation's widening waistline.
'High-fructose corn syrup is one the of many things we are looking into,' intones plaintiffs' attorney and George Washington University law school professor John F. Banzhaf III, better known for the blizzard of lawsuits he's filed against cigarette companies. 'The changes in the kinds of sugars we have seem to be a significant factor in why we have this epidemic of obesity"
Another article termed HFCS "A Coronary on the Cob," while another asks "Is Sugar the Next Tobacco?"
Even if "all calories count" is technically correct in the sense that they can contribute one way or another to obesity, an advertisement can still violate consumer protection statutes if it fails to provide relevant information, says Professor Banzhaf, who has been called "the Ralph Nader of Junk Food," and "The Man Who Is Taking Fat to Court." This, he notes, has been termed misrepresentation by failure to disclose, and occurs when a technically true but misleading statement is made; one which would not be misleading if other facts were also stated.
For example, when McDonald's said truthfully that its french fries were "cooked in 100% pure vegetable oil Banzhaf and his law students brought a class action against the fast food giant for failing to disclose that the fries were also pre-cooked in beef fat. McDonald's, which originally ridiculed the law suit, was forced to pay over $12 million to settle it, and it was required to disclose in future ads that its fries, as served, did contain at least minute amounts of fat
Similarly, even if all calories technically count in some way towards obesity, a failure to disclose that the calories in sugary soft drinks are more likely to cause obesity – and that calories from HFCS are treated differently in the body than other sources of calories – could provide a new basis for legal liability in class action law suits, says Banzhaf, "The Man Big Tobacco and Now Fast Food Love to Hate."
One law suit based upon this legal theory has already been filed, although the defendants are producers of HFCS rather than soft drink makers. In the suit, sugar producers charge that the defendants engaged in a campaign of false advertising by claiming that the liquid sweetener is "nutritionally the same as table sugar" and claiming that "your body can't tell the difference."
The plaintiffs are prepared to present strong evidence that these claims are false and misleading, and that high-fructose corn syrup is far less healthy than regular sugar in many ways.
In short, the plaintiffs are likely to be able to show that all calories don’t count equally, thereby providing the evidence needed to hold Coca-Cola liable for making the same misleading claims.
Banzhaf notes that there have been at least two other legal actions directed against “liquid candy” which have been successful, although they were based upon other legal theories.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
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