It has become a common practice in recent years for academic
historians (and others moonlighting as such) to mine troves of consumer
product industry documents in search of "bad" corporate
behavior. Perhaps most notably, Dr. Robert Proctor, a Stanford
University historian of science, dove deeply into the tobacco industry's
documents and published several articles and books over recent years
regarding alleged misbehavior by cigarette companies; Dr. David Egilman of
Brown University has done the same with regard to the asbestos
industry. These same historians also have appeared as experts for
plaintiffs in product liability litigation against tobacco and asbestos
defendants, and have been rewarded millions in fees for doing so. So
it is no surprise that still more historians have gone fishing for
something titillating in corporate documents from yet another
long-established industry --
this time, sugar.
Recently, Dr. Stanton Glantz, the corresponding author from the UCSF Center
for Tobacco Control Research, along with two colleagues, published the
article "Sugar Industry and Coronary Heart Disease Research-Historical
Analysis of Internal Industry Documents" in the journal JAMA Internal
Medicine. The article asserts that the sugar industry, led by the
Sugar Association, the industry's Washington, D.C.-based trade association,
has improperly denied that a relationship exists between added sugar
consumption and cardiovascular disease ("CHD"). The article
also criticizes the sugar industry for allegedly attempting to influence
the scientific debate over the dietary causes of CHD in the 1950s and 1960s
by paying scientists to publish favorable articles without disclosing the
sugar industry's funding or role in their creation.
Dr. Glantz and his co-authors appear to be taking a page from the tobacco
playbook, where very similar allegations have been made by historians
regarding the tobacco companies and their public relations and lobbying
arms. And if the history of tobacco litigation is any guide, Dr.
Glantz's article could prompt similar claims against the sugar industry for
fraud and nondisclosure, among other personal and pecuniary injury claims,
and of course, could position Dr. Glantz and his colleagues to serve as
While we are aware of no cases brought directly against the sugar industry
to date for personal injuries or mislabeling related to pure sugar
products, analogous cases have been litigated in recent years against the
food industry. For example, in 2013, a 14-year-old girl filed suit in
the District Court for the Western District of New York alleging that
consuming high fructose corn syrup ("HCFS") caused her to develop
type 2 diabetes . The suit attempted to hold
strictly liable the manufacturers of HCFS for creating an unreasonably
dangerous product without warning consumers of the product's potential
health risks; for negligently marketing, distributing, and testing its
product; and for negligently warning and instructing its consumers.
The plaintiff sought $5 million in damages. The court ultimately
dismissed the plaintiff's claims in this case, citing the limited facts
that the plaintiff offered to demonstrate that her consumption of HCFS was
a substantial factor in causing her type 2 diabetes.
Similarly, food manufacturers have also recently seen an uptick in
lawsuits against them, often in the form of class actions, based on alleged
mislabeling of food products, either with regard to product ingredients or
product warnings. In these suits, consumers do not seek recovery for
alleged personal injuries; instead, they simply "want their money
back." In the case of popular products, these refunds can total
millions of dollars. Earlier this year, for example, Walmart was sued
for deceptive business practices relating to its marketing of Great Value
brand parmesan cheese as "100% Grated Parmesan Cheese" and
selling it at a premium price; testing allegedly revealed that the product
contained seven to 10 percent cellulose, a product derived from wood chips.
Likewise, the Greek yogurt manufacturer Chobani was sued for using the
terms "evaporated cane juice" and "only natural
ingredients" in the labels of its products; the plaintiffs argued not
only that "evaporated cane juice" is simply sugar by another
name, but also that the product contained unnatural color additives. This
suit has been stayed pending the Food and Drug Administration's review of
the use of the terms "natural" and "evaporated cane
juice" on food product labels. Over the past several years, food
manufacturers such as Ocean Spray, Ben & Jerrys, POM Wonderful, J.M.
Smucker Co., and Skinnygirl, among others, have faced similar lawsuits over
alleged mislabeling or deceptive labeling of their products.
If claims for cardiovascular disease or other personal injuries are
ultimately advanced against sugar manufacturers, however, plaintiffs face
substantial challenges. Most notably, as seen in the case against producers
of HFCS, plaintiffs face a major hurdle proving both general and specific
causation. A plaintiff must show that either misuse or overuse of
sugar is the cause-in-fact of her cardiovascular injury, and that it was
not caused by one of the many other identified causes of cardiovascular
diseases and conditions. Given this challenge, the sugar industry is
more likely to confront "money back" claims -- alleging consumer fraud -- in which plaintiffs do not claim
personal injuries, and thus need not satisfy the same burden of proving
causation. Instead, a plaintiff must only allege that, had she known
the risks associated with a particular product, she would not have bought
or used the product as she did. And although many of the recent
consumer fraud cases against food manufacturers have been dismissed at the
class certification stage, the litigation trend has not dissipated.
Given the potential threat of litigation in the sugar industry based on Dr.
Glantz's recent article, Hughes Hubbard's long experience in defending
tobacco and other product manufacturers against similar claims suggests
that companies in the sugar industry should consider undertaking at least
the following three strategic measures:
First, consider auditing current product labeling and other statements made
on the official company websites, all of which plaintiffs' attorneys will
study carefully for alleged "admissions against interest" and
false or unsupported statements. Note also that statements made by
health authorities or statements included in third-party sources of
information, to which your company provides links on the company website,
may be characterized by plaintiffs in litigation as "adoptive
admissions" by the defendant company. Review carefully all such
third-party content and consider whether you are linking to information
that, in a plaintiff's hands, may be injurious.
Second, the alleged improper behavior described in Dr. Glantz's article
extends back decades, and many of the individuals who allegedly were
involved at the time may be deceased or otherwise unavailable to testify or
assist in a sugar company's defense. Working with your counsel and
human resources department, consider undertaking an effort to identify the
existence and whereabouts of company officials and employees from that era,
who may be able to provide context and other information relevant to your
defense. This is critical; plaintiffs' attorneys will be searching
for the same people, and your company should get a head start and make the
Finally, if litigation is filed, there will be a race with plaintiffs'
attorneys to identify the field's top medical and scientific experts.
Sugar companies might also consider identifying their own historians to
attempt to rebut the allegations made by Dr. Glantz and his colleagues.
Consider working with your counsel to identify and compile the resumes of
leading candidates before any cases are filed. These precautionary
steps need not be costly and will position a company to hit the ground
running in the event class action or other litigation is filed.