First smokes, now Cokes

WALTER OLSON is a senior fellow of the Manhattan Institute. This article is adapted from the Winter 2006 issue of City Journal.

GET READY for the next mass-tort crusade: protecting our kids from the ravages of Big Cola. According to news reports, a group of lawyers is gearing up to file lawsuits that will seek to blame Coke, Pepsi and others for obesity, tooth decay and other childhood health ailments. An article in the Boston Globe Magazine has called it part of a “national legal movement to make soft drinks the next tobacco.” Instead of tar and nicotine, we’ll be hearing about corn sweeteners and caffeine; maybe Dr. Pepper can stand in as the new Joe Camel.

Ridiculous? More like inevitable. For some time, a noisy campaign has been underway to portray the food and beverage industry as the villain in the nation’s ongoing battle with the waistline. Without the snack hucksters’ machinations, it seems, we’d all eat raw bell peppers and be reed thin.

Backed by “progressive” foundations, nutrition advocates are demanding a national obesity policy aimed at changing our collective diet, by force of law if necessary -- or quite possibly by force of litigation. As one advocate, Michael Jacobson of the Center for Science in the Public Interest, put it: “If someone is saying that a 64-ounce soda at 7-Eleven contributed to obesity, that person should have his day in court.”


That brings us to Northeastern University law professor and associate dean Richard Daynard, point man in the forthcoming courtroom onslaught against fizzy drinks. Long quoted in the media as a cheerleader for tobacco lawsuits, Daynard has now set out to assemble a legal strike force to file obesity actions. He wants to duplicate the success of the tobacco campaign, whose strategies included invoking “the children” and launching scores of suits on novel legal theories in hopes that one would stick. The litigation culminated in the 1998 settlement in which cigarette makers agreed to alter marketing practices, pay oodles to state governments (financed by hiking cigarette prices) and -- not incidentally -- fork over upward of $10 billion to the lawyers who had organized the suits.

The first of the new soft-drink suits -- set for filing in Massachusetts over the sale of soda in school vending machines -- has been delayed, for a comical reason. Daynard says that it has taken longer than expected to line up the right Bay State family to serve as client, even though his allies have placed newspaper ads asking parents to step forward. (Shouldn’t he be pretending, at least, that aggrieved victims of Big Cola are pounding on his door, eager to sue?)

But at some point, a plump plaintiff will be onboard, and it’ll be off to court. So should we laugh at these lawsuits? After all, Round One -- the suits by obese customers against McDonald’s and other burger chains -- drew derision from the general public, an overwhelming 89% of whom in a 2003 Gallup poll opposed letting people sue over fattening foodstuffs.

This time around, though, the lawyers have selected targets more shrewdly. Restricting soda sales in schools has proved popular with the general public. California has a statewide ban in its public schools.

It’s worth noting, though, that the bans might not make much difference in the problem of childhood obesity. Most soda (99%) is sold outside schools, according to an industry analyst. And fruit juice (a typical replacement) is hardly slenderizing, especially compared with the diet soft drinks popular among teens.

Still, the lawyers might well coax a settlement out of the soft-drink firms. The real leverage that this kind of litigation affords often lies in the threat of obtaining, under court order, reams of internal documents from the opponents’ files and making them public. The two companies that dominate the soft-drink industry are extremely sensitive to negative publicity about their marketing practices.

Further, Coke and Pepsi wouldn’t necessarily be averse to granting some of their critics’ demands. In fact, a settlement that let them reduce the vast sums they spend on marketing might be in their interest, conferring a collusive benefit otherwise unobtainable without violating antitrust laws. Some economists believe that the curbs that the tobacco settlement placed on cigarette ads boosted tobacco firms’ profitability.

Daynard’s financial stake in all this is going to deserve reporters’ scrutiny too. Back in the heyday of tobacco litigation, news reports portrayed him as an academic well-wisher of the suits, with no mention of his monetary stake in them. After other tort kingpins brokered the $246-billion settlement with the states, however, Daynard claimed that he had an oral agreement with the lawyers that entitled him to 5% of their fee haul -- $150 million or more. The attorneys denied making such a promise, and the dispute was later settled. Who needs Coke and Pepsi to bring commercialism to the schools? It looks as if Daynard & Co. are already doing a decent job of that.