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Soda Lawsuits to Be Filed:

The New York Times reports on pending consumer activist litigation against soda bottlers seeking the removal of soda machines from public schools.

In a lawsuit they plan to file in the next few months, Mr. [Stephen] Gardner [of the Center for Science in the Public Interest] and half a dozen other lawyers, several of them veterans of successful tobacco litigation, will seek to ban sales of sugary beverages in schools.

The lawsuit is to be filed in Massachusetts, which has strong consumer protection laws and happens to be where some of the lawyers are based, and will name Coca-Cola, PepsiCo and their local bottlers, the lawyers say. It will be the first of many such state lawsuits, they say. . . . .

The Massachusetts lawsuit will focus specifically on sales of what it terms unhealthy beverages (likely to mean full-calorie sodas, sports drinks, iced tea drinks and juice drinks without much juice) in high schools and will argue that such sales constitute unfair and deceptive marketing. The suit will also cite the ways in which the large illuminated Coke and Pepsi machines lining school halls and cafeterias are an "attractive nuisance."

"They're selling to a captive audience that isn't really in a position to fully evaluate all the health risks," said Andrew A. Ranier, a partner at McRoberts, Roberts & Ranier in Boston and one lawyer involved in the suit. "And they're not telling people about the risks."

Three tobacco litigation experts are also involved in the suit: Tim Howard, a Florida lawyer who helped the state win a $17 billion settlement against tobacco companies in 1997; Stephen A. Sheller, a partner at Sheller Ludwig & Badey in Philadelphia, who was involved in a successful $10 billion tobacco class action in Illinois state court that is currently under appeal; and Richard A. Daynard, an associate dean at the Northeastern University School of Law who has served as an adviser to many of the state tobacco lawsuits that led to a $246 billion settlement in 1998. . . .

One detail yet to be decided is whether the group will seek financial damages. Under Massachusetts's consumer protection law, successful plaintiffs are entitled to $25 per violation, which could mean $25 for every time a student has purchased a soda in a public high school in Massachusetts over the past four years.

Mr. Gardner said he and the other lawyers realize that damages could run into the billions. "We haven't decided about this yet," he said. "We don't want this to come off looking like a greedy-lawyer lawsuit."

UPDATE: I neglected to note Todd's post on this subject from last week.

Nobody Special:
So they finally found a fat kid to be the lead plaintiff?
12.7.2005 8:55am
NaG (mail):
"We don't want this to come off looking like a greedy-lawyer lawsuit."

Too late.
12.7.2005 9:07am
cathyf:
Back in 1980, the first time that they banned pop machines in school, my high school paper ran a cartoon where one student says to another, "What kind of country is it where I can get an abortion without my parents' consent or even knowledge, but I can't have a pepsi with my lunch even with my parents' full support?"

Pretty much sums it up, eh?

cathy :-)
12.7.2005 9:23am
Joshua (mail):
NaG: Not just too late, but never even possible in the first place. Like it or not, all class-action suits nowadays are tainted by the greedy-lawyer image.
12.7.2005 9:24am
Anon1ms (mail):
If members of school boards took the best interests of the students as their primary duty, lawsuits wouldn't be necessary -- the soda machines would never have been allowed in the schools.

The only reason they are there is the revenue stream they create. Who thinks drinking Mountain Dew and eating Cheetos for lunch is a good idea?
12.7.2005 9:26am
Cornellian (mail):
Coke, Pepsi, Mountain Dew and similar beverages are about the most unhealthy beverages one can drink and everyone knows this. That being the case, why are school boards or school principals (whoever is in charge of the issue at a particular school) not doing their jobs and refusing to allow soda vending machines in their schools?
12.7.2005 9:33am
John Thacker (mail):
The only reason they are there is the revenue stream they create. Who thinks drinking Mountain Dew and eating Cheetos for lunch is a good idea?

The only reason they create the revenue stream is because students buy from them, yes? So it seems that many teens actually believe that "drinking Mountain Dew and eating Cheetos" is a good idea, at least sometimes. Apparently the argument goes that they only think that because they're too stupid to know better.
12.7.2005 9:46am
Nobody Special:
"If members of school boards took the best interests of the students as their primary duty, lawsuits wouldn't be necessary -- the soda machines would never have been allowed in the schools."

Do you have any idea what a cash cow those machines are for the schools, or how useful their funds are to the many woefully underfunded schools across the country? Consider whether that the "best interests of the students" should refer solely to the school's programs that receive a decent portion of funds from vending machines, or whether the public school should truly be in loco parentis.
12.7.2005 10:01am
Houston Lawyer:
This whole debate is amazing to me. Does anyone truly believe that soft drinks are the primary reason for childhood obesity? I'm sure that in these same schools they sell ice cream, cheese burgers and french fries to students. Why? Because that's what they eat at home and that's what they want.

If schools want to slim down their students, an hour-a-day of vigorous exercise would do the trick. We used to call it PE.
12.7.2005 10:18am
Hank:
It is not relevant whether soft drinks are the "primary" reason for childhood obesity. Schools act in loco parentis, and ought to take account of students' health in the food they sell. PE is no substitute for that. This is not to express an opinion on any lawsuit.
12.7.2005 10:38am
Medis:
As I see it, schools are willing to take the child's cash despite the bad consequences for the child's health (and, of course, this includes not just these machines, but also unhealthy-but-popular food in the cafeteria) because the social burden associated with the child's future health problems will be someone else's problem.

I'm not sure litigation is the right answer, but this does seem like a serious issue.
12.7.2005 10:40am
Tam:
Mountain Dew, at least, is high in caffeine. I drink Mt Dew (diet) by day, coffee by night to keep my attention level up on long-distance drives. Maybe students want to keep their attention level up in classes.
12.7.2005 10:41am
Medis:
Tam,

Or maybe to reduce the liver damage caused by their obesity.
12.7.2005 10:50am
JoeW:
Coke, Pepsi, Mountain Dew and similar beverages are about the most unhealthy beverages one can drink and everyone knows this.

This is a classic example of common knowledge being just plain false. The only way such drinks become unhealthy is if they are consumed in massive quantities, which is true of ALL beverages. From a purely caloric standpoint, these drinks actually fair much better than most fruit juices and even milk.
12.7.2005 11:10am
LisaMarie (mail):
There shouldn't be soda machines in high schools? Thanks to the government, I already know that 21 is the age at which people suddenly and magically become responsible enough to handle drinking alcohol. At what age do you undergo the transformation that makes you able to choose to drink a coke?
12.7.2005 11:19am
Georgia Tom:
Just adding a thought in: Buying a 12 oz soda and a 1 oz bag of snacks is not going to make anyone fat by itself. We're talking 400 calories or so (empty calories yes but you're other 1600 can be vitamin packed if you like). The only issue here is advertising and there is a definite cost/benefit question involved.
12.7.2005 11:21am
Robert Schwartz (mail):
"We don't want this to come off looking like a greedy-lawyer lawsuit."

Satire is no longer possible.
12.7.2005 11:36am
Cornellian (mail):
Coke, Pepsi, Mountain Dew and similar beverages are about the most unhealthy beverages one can drink and everyone knows this.

This is a classic example of common knowledge being just plain false. The only way such drinks become unhealthy is if they are consumed in massive quantities, which is true of ALL beverages. From a purely caloric standpoint, these drinks actually fair much better than most fruit juices and even milk.


Soda is water + sugar with zero nutritional value. It's not just a matter of how many calories are involved. I didn't say fruit juices or milk were great choices either.
12.7.2005 11:38am
Kristian (mail) (www):

From a purely caloric standpoint, these drinks actually fair much better than most fruit juices and even milk.


However, nutrition is more than calories. There is carbs/fat/protein, vitamins, minerals, et al to consider. A glass of water with 2 Tbsp of sugar is lower in calories than Milk, but does anyone think it is really heatlhier?

That aside, isn't this a public choice problem? The vending machinces fund the schools to the ALLEGED detriment of the students health, but removing the vending machines MAY hurt the students educational advancement and help (how, exactly?) the students help.

OTOH (yeah, were on hand #3), school cafeteria food is hardly of the highest quality and even if it meets USDA Recommended Daily Allowances of x Nutrients, remember the RDA is political, and when enough kids don't get it, they lower the RDA...
12.7.2005 11:39am
Cornellian (mail):
There shouldn't be soda machines in high schools? Thanks to the government, I already know that 21 is the age at which people suddenly and magically become responsible enough to handle drinking alcohol. At what age do you undergo the transformation that makes you able to choose to drink a coke?

Personally I think having the drinking age set at 21 is both puritanical and hypocritical as everyone knows young people start drinking earlier than that but we're all expected to pretend that they don't. I'd rather see it set at 18.

You are free to drink soda at any age, at least to the extent that your parents don't try to hinder you from doing so. That's not the same thing as saying that schools should be selling it to you.
12.7.2005 11:41am
NYU Jew (mail):
Wow- this post looks a lot like SODA SUITS by Zywicki. How about linking to it?
12.7.2005 11:50am
James Stephenson (mail):
NaG you beat me to it.

Well what do you expect from the nanny staters. Can not get enough to people to quit smoking by having it printed on the pack, these things will kill you. So they just make it illegal to smoke in public.

I remember when I was a kid they had a smoking area where kids, who were almost adults can smoke. I went back last year for something, that was no longer there.

The end result will be an attempt to make these soda's illegal. Because we can not blame the people drinking or smoking. Heck, it's the company's fault.

Personally, if they took machines out of my school, as a kid, if there were a market, I would take me a backpack cooler to school. Stick it in my locker and sell them for 1.50.

Heck when I was in Junior High, I sold bubble gum for .25 a piece. Back then the pack was .50 so I was making a killing.
12.7.2005 12:07pm
JoeW:
Soda is water + sugar with zero nutritional value.

Wrong. Sugar is a nutrient.

It is also incorrect to say one food is "healthier" than another. A person living solely on a diet of milk will suffer a wide range of maladies as will a person living on just green vegetables.

I'm curious; if the school drops soda machines, should they also get rid of the ever present coffee machine in the teacher's lounge?

One issue not brought up is the impact on school funding by lawsuits such as this. This goes beyond revenue from vending machines; it will affect state budgets EVEN IF THE STATES WIN. Point being is that the net effect of such lawsuits is bad for educational funding regardless of the outcome.

(I also wonder what these lawyers ate at lunch in high school. My kids have a wider range of choices for school lunches, but I doubt they eat any better or worse than I did in high school, or even college for that matter.)
12.7.2005 12:11pm
Dave! (mail) (www):
"Apparently the argument goes that they only think that because they're too stupid to know better."

Which is a demonstratively false premise, because it is a universally accepted fact that teenagers, do, in fact, know everything. :)
12.7.2005 12:20pm
therut (mail):
Remember that old show with John Travolta-----------"Child in a bubble" or somthing close to that title. That is what the lawyers and government will force all children to live in someday for their safety of coarse. Everthing a person eats gets broken down to glucose or amino acids in a starvation situation. This lawsuit is bogus but who cares so are most social enginering and lawyer enriching schemes.
12.7.2005 12:33pm
JB:
>The only reason they are there is the revenue stream they create. Who thinks drinking Mountain Dew and eating Cheetos for lunch is a good idea?

It speaks volumes about the health of our education system that the answer is likely, "Pretty much every kid."
12.7.2005 12:44pm
The Original TS (mail):
The Massachusetts lawsuit will focus specifically on sales . . . in high schools and will argue that such sales constitute unfair and deceptive marketing. The suit will also cite the ways in which the large illuminated Coke and Pepsi machines lining school halls and cafeterias are an "attractive nuisance."

Let's break this down. First, if the Coke and Pepsi ads are "unfair and deceptive," why is the location of any particular ad relevant? They either are or they aren't. Maybe their claim is that Coke actually subtracts life.

Second -- and I raised this point in a previous thread -- an attractive nuisance claim can only be asserted against the school district since they are the ones who control the property on which the nuisance is located. Is MA law somehow different on this point? I'm assuming the attorneys bringing this suit are overly-creative rather than completely stupid so how are they getting around this?

They're going to have a lot of fun proving up cause, as well, let alone damages. What are they going to do, calculate what percentage of calories came from drinking Pepsis bought on campus and then calculate how many extra pounds that translates into? I'll bet that's the real reason they haven't decided whether to go for damages!
12.7.2005 1:00pm
Cornellian (mail):
Soda is water + sugar with zero nutritional value.

Wrong. Sugar is a nutrient.


You cannot avoid getting all the sugar you need from eating virtually any grain, fruit or vegetable. Soda adds absolutely nothing and high fructose corn syrup is considerably worse than the type of sugar you'd get from eatings beets, corn or any number of other things.
12.7.2005 1:42pm
AppSocRes (mail):
Dick the Butcher may have been on to something!
12.7.2005 2:10pm
Aaron:
Original TS:

"Maybe their claim is that Coke actually subtracts life."

Theme of plaintiff's summation.
12.7.2005 3:01pm
David M. Nieporent (www):
NaG: Not just too late, but never even possible in the first place. Like it or not, all class-action suits nowadays are tainted by the greedy-lawyer image.
If this were only about greed, it wouldn't bother me so much. It's actually an attempt to use the courts to do the job of the legislature. To the extent soda belongs or doesn't belong in school, that's a policy question, not a legal one, regardless of whether one can shoehorn it into an amorphous concept like "unfair business practice" or "nuisance."

The only reason they are there is the revenue stream they create. Who thinks drinking Mountain Dew and eating Cheetos for lunch is a good idea?
Uh, the people who do it? Who thinks it's the court's business, or for that matter the school's business, what anybody eats for lunch?

There is a huge difference, contra to what some of the commenters above have implied, between "these drinks have little nutritional value" and "these drinks are harmful to children."
12.7.2005 3:48pm
abayrat:
First I want to state for the record I am not a lawyer or a law student, but I do enjoy reading the posts I find on this site.

As for this lawsuit, as a lawyer in this type of suit would you not want to be associated with a group with impeccable credentials? I have been browsing the web sit of Center for Science in the Public Interest (CSPI) along with a number of sites that oppose it. I suggest anyone interested can check the following links for starters.

http://www.cspinet.org/
www.cspiscam.com


I found some interesting facts including they are the organization behind the acrylamide lawsuit in California. This group once published a study call "Liquid Candy" in 1998 which overstated the results by 100%, it had to be revised a week later, and is using this report to justify banning soft drinks from schools

One site listed 143 "victims of CSPI's questionable "scientific" studies and political attacks."
12.7.2005 4:35pm
Brett Bellmore (mail):

ou cannot avoid getting all the sugar you need from eating virtually any grain, fruit or vegetable. Soda adds absolutely nothing and high fructose corn syrup is considerably worse than the type of sugar you'd get from eatings beets, corn or any number of other things.


In as much as the average American diet contains far more protien than is nutritionally required, you could make an equally valid argument if the vending machines were selling beef jerky. In fact, given the frequency of obesity in this country, about the only things the vending machines could sell that wouldn't be subject to such reasoning would be distilled water and perhaps multi-vitamin pills.

The product isn't actively toxic, and people aren't forced to buy it. That's sufficient to render the lawsuit frivolous by any standard except those of our warped tort system.
12.7.2005 7:43pm
Conrad (mail):
First, it's bad enough when elected legislatures stick their noses into matters of personal choice. At least we have the opportunity to vote those busy-bodies out of office. However, I don't recall anyone in the plaintiff's bar ever coming to me and asking for cy consent for them to regulate my life and, if I'm not pleased with their performance, how exactly am I supposed to remove them form their self-selected position?

Second, Cornillian writes:

Coke, Pepsi, Mountain Dew and similar beverages are about the most unhealthy beverages one can drink and everyone knows this.


Well, assuming that the drinks are unhealthy and that fact is known to everyone then, ipso facto, the purpose of this lawsuit is not to protect consumers from deecpetion (I can't be deceived if I know the actual facts) but rather to prevent informed consumers, who want sodas despite their unhealthyness, from acting on their preference.

Either that or to make a boat load of money and garner publicity.

Or both. After all, it's possible to be both greedy and tyranical at the same time.
12.7.2005 10:58pm
Wild Pegasus (mail) (www):
I knew soda was lousy for you when I was 10. It didn't stop me from drinking it, of course, but I had heard all my life that tons of sugar is bad for your health and rots your teeth. I can't fathom any teenager not knowing this.

- Josh
12.8.2005 12:52am
vic:
the is the most vile kind of pseudoscience possible

facts:

1. all foods barring none contain 3 basic nutrients
cabohydrates ( CHO) fats and protiens. CHO are either complex carbs ( bread rice)or simple carbs (glucose fructose, cane sugar( sucrose is in between as it is a chemical composite of 2 simple sugars glucose and fructose). when we ingest complex carbs, they are in their native state unabsorbable, ie without the action of gastrointestinal amylases etc they would pass out unchanged in the trial lawyers poop as would sucrose ( the sweetner in pop). Gastrointestinal amylases ( enzymes) convert the complex carbs into simple carbs ( prdominantly 6 carbon sugars like glucose and fructose), these simple carbs are absorbed. and are used by the body as its primary fuel. so whether you ingest carbs as bread or as soda. you geta rise in your blood glucose as a consequence. the only difference being that the rate of rise in blood sugar if a little different. simillar processes obtain for the digestion and absorbtion of fats and protiens. where the absorbed (breakdown molecules are free fatty acids and amino acidsrespectively. In addition the body maintains homeostasis by the process of intermediatory metbolism. what this means is that predominantly in the liver excess sugars get a NH3 added to it to make it into amino acids or fatty acids can get synthesized from 6 carbon sugars. the process can worl backwards and forwards. esentially the body reguilates the nutrients and channellises the manufacturing process very efficiently into what nutrient is required. SO at one level the single most important event is consumption of too many calories. not the mode or form that the calories are consumed ( BTW 1 gm of CHO and 1 gm of protien = 4 Cal; 1gm of fat = 9 cal).

2. In order to get unhealthy levels of obesity from consuming pop, one would have to consume very large quantities (i am guessing 10-15 cans per day). Unless high school teachers have started to allow pop consumption in class, i cannot understand how it is even physically possible to consume 10-15 cans of pop in a school day.

3. any nutrient consumed in excess quantities will lead to unhealthy consequences. carbs (in any form), fats , protiens, vitamins ( yes vitamins esp hypervitaminosis A and D can be much nastier than hyper-pepsi)and minerals.

4. in our practices we occasionaly encounter this morbidly obese 4 year old who has a litre bottle of pepsi and a family sized bag of potato chips for breakfast willingly given to him by his mom. the lunch snack and dinner menus are simillarly profound. for christ sakes mr lawyerman sue this mom. but what good would that do, she is most likely poor and latino or african american and has no deep pockets. unlike pepsico which does have deep pockets.

I guess the conclusion i have come to is that these greedy lawyers are the brigands of the postmodern age. using discovery and subpoenas and the threat of lawsuits instead of guns to steal. because let us be very clear , there is NO societal purpose for this crap other than to enrich lawyers.
and no amount of verbiage and selfserving justification of the type that some contributors to the previous related post put up can change the basic fact.

In todys society the trial layer has replaced the cosa nostra as the prime extortionis in society
12.8.2005 5:00pm
vic:
Sorry
I guess I should have edited the previous post
12.8.2005 8:46pm
Jeff Merrill (mail):
Now, as a freshman in high school, I see Pepsi machines and obese children on a daily basis. I am no scientist, however, so I am not in a position to objectively analyze any data pertaining to soda being a cause of childhood obesity.

I can say on a general level, though, that soda can be unhealthy when consumed in large quantities— I'll even grant that the bright lights and flashy colours of a Pepsi machine on campus feels a tad invasive. This does not, however, merit the seemingly knee-jerk reaction of a lawsuit. To me, it feels like the trial lawyers are pointing fingers and screaming for a lawsuit, diverting attention from teen issues that are much more pertinent (and far more touchy) than a soda machine.
12.9.2005 12:44am