CSPI's litigation department was created in 2004, when consumer protection at the federal level by the FDA, FTC, and USDA was at a shameful low point, to fill the void left by the inactive government agencies by using state and federal courts to help correct corporate misbehavior. CSPI's legal filings have produced binding settlements resulting in more honest labeling of artificial ingredients and halting deceptive marketing. Litigation, or the threat of litigation, has spurred several companies to remove artificial trans fats from their foods and is reducing the marketing of junk foods to kids. Although the federal agencies under the new Administration are very much revived and active, CSPI’s litigation efforts will continue, to assist and supplement federal and state attorney general enforcement.
CURRENT DOCKET
MCDONALD'S. On June 22, 2010, CSPI notified McDonald’s that if the company continues to use toys to promote Happy Meals, CSPI will file suit to stop that practice.
Using toys to lure small children into McDonald’s is unfair and deceptive marketing, which is illegal under various state consumer protection laws.
“McDonald’s is the stranger in the playground handing out candy to children,” said CSPI litigation director Stephen Gardner. “McDonald’s use of toys undercuts parental authority and exploits young children’s developmental immaturity—all this to induce children to prefer foods that may harm their health. It’s a creepy and predatory practice that warrants an injunction.”
Of the 24 possible Happy Meal combinations on the McDonald’s Web site, all exceed 430 calories (430 is one-third of the 1,300- calorie recommended daily intake for children 4 to 8 years old). A Happy Meal of a cheeseburger, French fries, and Sprite has half a day’s calories and saturated fat (640 and 7 grams, respectively), about 940 milligrams of sodium, and about two days’ worth of sugar (35 grams). And even that meal might have come with a toy related to Star Wars, iCarly, How to Train Your Dragon, Night at the Museum, or, of course, Shrek. Getting children accustomed to eating burgers, fries, and soda puts them at greater risk of becoming obese and developing diabetes or other diet-related diseases, according to CSPI.
"But regardless of the nutritional quality of what’s being sold, the practice of tempting kids with toys is inherently deceptive,” said CSPI executive director Michael F. Jacobson. “I’m sure that industry’s defenders will blame parents for not saying ‘no’ to their children. Parents do bear much of the responsibility, but multi-billion-dollar corporations make parents’ job nearly impossible by giving away toys and bombarding kids with slick advertising.”
The practice of using toy promotions to promote fast food to children is under scrutiny elsewhere, too. In May, the Santa Clara County, Calif., Board of Supervisors passed an ordinance preventing McDonald’s and other restaurants from including toys or other kid-oriented incentives with the purchase of unhealthy meals. And the Federal Trade Commission may have something to say about toy promotions when it releases a set of voluntary standards for food marketers later this year. According to a 2008 report from the FTC, food companies spend more than $350 million on toy giveaways each year.
This is the first time that CSPI has planned to take McDonald’s to court.
SAFEWAY. The sale of tainted food products to consumers who have no way of knowing the risk is one of the greatest food safety problems in the country today. Many chain stores — including Costco, Giant, Harris Teeter, Price Chopper, Sam’s Club, ShopRite, and Wegman’s — use their customer card programs (or membership cards) to contact people who bought contaminated food.
Even though it collects phone numbers and email addresses from its Club Card members, Safeway doesn’t do the same thing. In 2009, as thousands of peanut-containing products tainted with deadly Salmonella bacteria were being recalled, many other chains sent letters or automated phone calls out to people who bought those foods. Safeway did nothing during that recall or many other recalls.
On May 6, 2010, CSPI notified Safeway that CSPI will file a lawsuit against the grocery chain if it fails to adopt a policy to notify Club Card members who purchased contaminated food subject to recalls.
In response to that letter, instead of making any commitment to notify shoppers, Safeway instead threatened to sue CSPI for libel. CSPI has advised Safeway that, as a policy matter, we will not discuss resolution of a libel threat.
"It shocks the conscience that a major retailer would sit on its hands, even though it has easy access to the emails, addresses, and phone numbers of those who have purchased food that might be contaminated," said CSPI litigation director Steve Gardner. "Perhaps Safeway saves a few pennies by remaining silent. But why would you knowingly risk letting your customers fall ill, or worse, die?"
DENNY'S. CSPI joined a class-action lawsuit filed in Superior Court of New Jersey in Middlesex County to compel Denny’s to disclose sodium levels on its menus and include warnings for high sodium content. According to the Centers for Disease Control and Prevention, most Americans should consume no more than 1,500 mg of sodium per day, but some Denny's meals provide 4,000 or 5,000 mg—more than most adults should eat in three days. Diets high in sodium are a major cause of high blood pressure, which in turn cause heart disease and stroke, the first and third leading cause of death in the United States. Many health experts consider high dietary sodium levels to be one of the nation's top health threats, and reducing the sodium content of packaged and restaurant foods by half would save at least 150,000 lives per year.
BAYER. CSPI notified Bayer Healthcare of its intent to sue the company over claims that the selenium in two One A Day men’s multivitamins reduces the risk of prostate cancer because recent studies show otherwise. In fact, a new study published the Journal of Clinical Oncology revealed that selenium may actually promote more aggressive cases of prostate cancer. With the support of leading prostate-cancer researchers, CSPI urged the Federal Trade Commission (FTC) to stop these deceptive claims immediately.
Following a complaint to the FTC, CSPI filed a separate complaint with the Food and Drug Administration in response to One A Day’s misleading and deceptive labeling. Bayer’s claims that its Men’s Health Formula reduces the risk of prostate cancer and its 50+ Advantage variety “supports prostate health” are illegal due to a lack of scientific evidence. According to news reports, the company may be retracting the claim that selenium reduces the risk of prostate cancer but has not agreed to remove the more general deceptive claims regarding “prostate health.”
After CSPI notified Bayer that it was acting illegally, Bayer took some steps to remove cancer-prevention claims from its labels and ads. However, Bayer refused to commit to CSPI that it would not resume the same illegal behavior in the future, and in fact threatened to sue CSPI for libel for what CSPI had said about Bayer. Rather than give in to Bayer’s threats, CSPI sued Bayer in California. That lawsuit is pending.
RED BULL. Red Bull, Inc. markets its Red Bull energy drink as a mixer for alcohol, and consumers frequently drink Red Bull in cocktails mixed at home, restaurants and bars. However, Red Bull is not a safe mixer in alcoholic drinks. In fact, it is potentially fatal. Research shows that, compared to drinkers who consume alcohol alone, drinkers who mix energy drinks such as Red Bull with alcohol are twice as likely to require hospitalization, to drive drunk, to ride with a drunk driver, to assault someone sexually, or to be a victim of a sexual assault.
If you have suffered a negative experience because of consuming Red Bull mixed with alcohol, we would appreciate your completing this simple form. It will only take a few minutes. Your report will be very helpful in understanding the extent of the problems caused by mixing Red Bull with alcohol and in protecting other consumers.
VITAMINWATER. CSPI’s litigation department is serving as co-counsel in this class action lawsuit, now pending in United States District Court for the Eastern District of New York. Under the name Glaceau, Coca-Cola markets VitaminWater as a healthful alternative to soda by labeling its several flavors with such health buzz words as "defense," "rescue," "energy," and "endurance." The company makes a wide range of dramatic claims, including that its drinks reduce the risk of chronic disease, reduce the risk of eye disease, promote healthy joints, and support optimal immune function. In fact, the 33 grams of sugar in each bottle of VitaminWater do more to promote obesity, diabetes, and other health problems than the vitamins in the drinks do to perform the advertised benefits listed on the bottles. Despite the full names of the drinks, such as "endurance peach mango" and "focus kiwi strawberry,” VitaminWater contains between zero and one percent juice.
Coca-Cola filed a motion to dismiss the case, but the request was denied. The judge ruled that the company’s use of the word “healthy” violates the Food and Drug Administration’s regulations on vitamin-fortified foods. The FDA’s so-called “Jelly Bean” rule prohibits companies from making health claims on junk foods that only meet various nutrient thresholds via fortification.
The judge also said the FDA discourages names of products that mention some ingredients but exclude more prominent ingredients such as, in the case of vitaminwater, added sugar. The names of the drinks, along with other statements on the label, “have the potential to reinforce a consumer’s mistaken belief that the product is comprised of only vitamins and water,” the judge wrote.
MILLERCOORS BREWING CO. Although Anheuser-Busch settled with CSPI and several state Attorneys General, MillerCoors refused to talk after CSPI wrote both MillerCoors and Anheuser-Busch, and continued to market Sparks—an alcoholic energy drink that contained stimulant additives that are not approved for use in alcoholic drinks, including caffeine, taurine, ginseng, and guarana. Dubbed "alcospeed," Sparks had more alcohol than beer. No studies support the safety of consuming those stimulants and alcohol together, but new research does indicate young consumers of these type of drinks are more likely to binge drink, become injured, ride with an intoxicated driver, or be taken advantage of sexually than drinkers of conventional alcoholic drinks. The viral marketing campaigns behind the drinks are clearly designed to appeal to young, and often underage, drinkers, according to CSPI. After MillerCoors spurned CSPI’s offer to talk before suit, CSPI sued MillerCoors. After the lawsuit was filed, state Attorneys General reached agreement with MillerCoors to stop selling alcoholic beverages with stimulants, and MillerCoors confirmed to CSPI that it would stop this practice nationwide, not just in the states the Attorneys General represent. CSPI has agreed to dismiss its lawsuit because this outcome is relief enough. Now that MillerCoors has joined Anheuser-Busch in removing alcospeed beverages, the risks are much reduced.
AIRBORNE. CSPI joined a lawsuit in California state court against the makers of Airborne, the best-selling cold "remedy" in the country. There is no evidence that Airborne works, aside from the slight possible benefit from Vitamin C in the product. Airborne is completely ineffective in preventing colds, as the company claimed for years. The company agreed to settle the lawsuit by refunding money to defrauded consumers out of a settlement fund of $23.3 million. Separately, the Federal Trade Commission and state Attorneys General settled with Airborne on the same claims.
In July 2010, the federal district court ordered distribution of more than $7,000,000 that remained in the settlement fund after all claims by class members had been paid. The payments are directed (in varying amounts) to eight organizations that had submitted proposals for projects "intended to prevent or cure the common cold, flu, or other illness; research and other efforts to raise consumer awareness of and/or educating consumers about the safety and efficacy of dietary supplements; research and other efforts to ensure the safety and efficacy of dietary supplements intended to prevent or cure the common cold, flu, or other illness; research and other efforts to raise consumer awareness of and/or educating consumers about the safety and efficacy of dietary supplements; research and other efforts to ensure the safety and efficacy of dietary supplements." These organizations' proposals were awarded by the court:
- ALS Association of Greater Los Angeles
- California Primary Care Association
- Children's Hospital Corporation-Boston
- Consumers Union of U.S., Inc.
- Harvard School of Public Health
- National Multiple Sclerosis Society, Southern California Chapter
- Public Citizen Foundation, Inc.
- Public Justice Foundation
AURORA DAIRY. In 2007, CSPI joined a lawsuit in California against Aurora Dairy, the second-largest organic milk company. Aurora produced non-organic dairy products that it sold as "organic." Consumers pay premium prices for organic products, but in this case—due to the illegal behavior of Aurora—they were ripped off. Aurora's practices violated both federal and California consumer protection and organic laws. However, a federal judge has ruled that these consumers’ rights are “preempted” by federal law — that is, that the defendants did not have to comply with state consumer protection laws. An appeal is pending.
QUORN. CSPI filed suit in Connecticut on behalf of a consumer who bought Quorn Naked Cutlets at a Connecticut store, accusing Quorn Foods of not disclosing on labels the fact that some people have serious allergic reactions to the main ingredient in its Quorn line of meat substitutes. That ingredient happens to be a fungus—mold, actually—discovered in the 1960s in a British dirt sample. The company grows the fungus in vats and processes it into a fibrous, proteinaceous paste. But more than a thousand people have reported to the Center for Science in the Public Interest that they have suffered adverse reactions, including nausea, violent vomiting, uncontrollable diarrhea, and even life-threatening anaphylactic reactions after eating the patties, cutlets, tenders and other products made with Quorn's fungus.
The plaintiff ate Quorn’s Chik’n Patties on three separate occasions in 2008. Each time, within two hours of eating the product, she became violently ill. Thinking she had had a stomach virus, she didn’t realize that she was reacting to the Quorn until the third time she ate one of the patties, after which she vomited seven or eight times within two hours. "I felt like the soles of my feet were going to come out of my mouth, I was vomiting so hard," she said.
The lawsuit is pending.
BURGER KING. The third largest U.S. restaurant chain lagged far behind competitors in removing partially-hydrogenated oil, the deadly trans-fat-laden ingredient, from its fried foods, which placed Burger King's customers at a higher risk of heart disease. After Burger King refused to remove trans fats voluntarily, CSPI filed suit asking the District of Columbia Superior Court to order the restaurant chain to stop using trans fat, or at least to require prominent warning notices on Burger King's menu boards. Burger King tried to move the case to federal court in DC, but the federal court completely rejected Burger King's arguments and sent the case back to DC Superior Court. In late 2008, Burger King became the last of the big fast-food chains to stop using trans fats, and shortly after that, the Superior Court dismissed CSPI's lawsuit, holding that CSPI could not sue under DC's consumer protection law to protect DC citizens. CSPI strongly disagrees with this holding and has appealed.
CLOSED CASES
ENVIGA. Coca-Cola makes Enviga, an artificially sweetened green tea soda. It claims that the drink has "negative calories" and labels it as "the calorie burner" on cans. But according to CSPI scientists who reviewed the studies cited by Coke, Enviga is just a highly caffeinated and overpriced diet soda. In December 2006, CSPI formally notified Coke of plans to sue if it continued using unsubstantiated calorie-burning and weight-loss claims. After Coke indicated that it had no plans to change the claims, CSPI filed suit in U.S. District Court in New Jersey, part of the region where the beverage was first sold. The trial judge ruled in favor of Coke, and the case is now on appeal.
CSPI will not appeal a federal appeals court decision blocking a New Jersey woman’s lawsuit over false weight-loss claims made by Coca-Cola for Enviga. Under a February 2009 settlement agreement reached with 27 states and the District of Columbia, Coca-Cola agreed to pay $650,000 and to stop making overt weight-loss claims for Enviga. Coke (and partner Nestlé) agreed to add language to labels and marketing materials stating that the product will not promote weight loss without diet and exercise. Since then, sales have plummeted and Enviga has faded into obscurity.
GERBER. Gerber marketed its Graduates for Toddlers Fruit Juice Snacks in a very deceptive manner—decorating the package with pictures of oranges, cherries and strawberries when the leading ingredients are corn syrup and sugar. In 2005, CSPI criticized this product as part of its round-up of deceptive marketing claims. "You can guess why Gerber doesn't call these things Corn Syrup Snacks-no parent would buy them," said CSPI Director of Legal Affairs Bruce Silverglade. This is candy, not fruit juice."
A private plaintiff filed a lawsuit about these claims, which were initially dismissed but later reinstated by the United States Court of Appeals for the Ninth Circuit on December 22, 2008.
The Court of Appeals relied heavily on Friend of the Court briefs filed by CSPI and the California Attorney General. The court agreed the claims should proceed in federal district court, confirming the right of consumers to rely on claims made on the front of a box rather than assuming the company was lying and scouring the rest of the label to find the truth.
SARA LEE. CSPI notified Sara Lee of its intent to sue based on misleading claims on labels for the company’s "Soft & Smooth Made With Whole Grain White Bread." As part of a settlement agreement with CSPI, Sara Lee agreed to change its labels to make it clear the product contains only 30 percent whole grains rather than claiming the product is nutritionally equivalent to 100 percent whole wheat bread. The new labels will also state two slices of bread contain 10 grams of whole grains, and the government recommends consuming 48 grams per day.
ANHEUSER-BUSCH. The Center for Science in the Public Interest notified Anheuser-Busch and Miller Brewing Company of its intent to sue the companies over caffeinated alcoholic drinks such as Anheuser-Busch's Bud Extra and Tilt, and Miller's Sparks. The drinks, dubbed "alcospeed" by CSPI, have more alcohol than beer and contain stimulant additives that are not officially approved for use in alcoholic drinks, including caffeine, taurine, ginseng, or guarana. No studies are available to support the safety of consuming those stimulants and alcohol together—but new research does indicate that the young consumers of these type of drinks are more likely to binge drink, become injured, ride with an intoxicated driver, or be taken advantage of sexually than drinkers of conventional alcoholic drinks. The viral marketing campaigns behind the drinks are clearly designed to appeal to young, and often underage, drinkers, according to CSPI. Unlike Miller, Anheuser-Busch agreed to talk and CSPI was able to reach a settlement without needing to file suit. As part of the settlement with CSPI, Anheuser-Busch will remove the caffeine, guarana, and ginseng from its alcoholic beverages Tilt and Bud Extra. The company, which also settled with 11 state Attorneys General, agreed to remove the Tilt and Bud Extra web sites until those drinks are reformulated without the stimulants, and the company will urge competitors to cease production of their caffeinated alcoholic drinks.
SPLENDA. Splenda is an artificial sweetener, but its makers (McNeil-PPC, Inc. and McNeil Nutritionals, LLC) promote Splenda in a way that misleads consumers into believing that Splenda is a simply natural form of sugar without the calories: "Made From Sugar, Tastes Like Sugar." CSPI's consumer research surveys showed that consumers think that Splenda as "natural" or "not an artificial product." In truth, Splenda is a synthetic chemical that contains chlorine and is not natural. The Sugar Association sued McNeil on behalf of its members, to stop this deceptive practice. McNeil moved to dismiss the suit, claiming in part that the Sugar Association had waited too long to sue. CSPI filed an amicus curiae ("friend of the court") brief, advising the court that it is in the public's interest to stop fraudulent and misleading marketing at any point – even four years after the start of the deceptive Splenda campaign. The court agreed with CSPI's position, and denied the motion to dismiss.
KELLOGG. In a landmark legal settlement with CSPI, The Campaign for a Commercial-Free Childhood, and two Massachusetts parents, Kellogg Company agreed to adopt nutrition standards for the foods it advertises to young children. Foods advertised on children's media—such as Nickelodeon and other TV, radio, print, and third-party Web sites that have an audience of 50 percent or more children under age 12—will have to meet Kellogg's new nutrition standards. Also, it will not use licensed characters, such as SpongeBob, in advertising and on packages unless those foods meet the nutrition standards. For all products, Kellogg agreed to stop sponsoring product placements in children's media and to stop advertising in preschools and elementary schools.
QUAKER OATS. CSPI contacted Quaker about label and ad claims that significantly exaggerated the minimal effect oatmeal might have on lowering cholesterol. The company agreed to modify its claims. CSPI also previously negotiated with Quaker to revise labels for several varieties of instant oatmeal and grits so that consumers would know that the products did not contain any real fruit, real butter, or real meats (ham, bacon), as the labels imply.
CAPRI SUN. CSPI met with Kraft officials to obtain their agreement to stop calling Capri Sun drinks "natural" because they are sweetened with the very-unnatural high-fructose corn syrup (HFCS). Kraft initially refused but after CSPI filed suit against Kraft, the company announced that they were in the process of getting rid of the claim.
CADBURY SCHWEPPES. CSPI had also been in talks with Cadbury over its use of "natural" to describe 7-UP, also sweetened with HFCS. Within days of the suit against Kraft for Capri Sun, Cadbury agreed to drop the "natural" claim, and CSPI dropped a planned lawsuit against the company. Shortly after that, Cadbury agreed that it would remove "natural" from its Snapple brand as well.
STARBUCKS. After CSPI publicized the possibility of a lawsuit against Starbucks for the presence of trans fat in numerous pastry products, Starbucks met with CSPI in July 2006. This meeting may have expedited Starbucks' January 2, 2007 announcement that it was immediately eliminating trans fat in half of its U.S. stores (with the other half changing by the end of 2007).
KFC. The primary purpose of this lawsuit was to force KFC to stop using oils rich in trans fat for frying and other purposes, or at least make the chain warn customers of the risks of partially hydrogenated oil. Several months after the lawsuit was filed, KFC announced that it would switch to a healthier cooking oil for most of its products. Presumably, the lawsuit accelerated KFC's action. CSPI dropped out of the lawsuit, which was filed jointly by a Washington law firm, as soon as KFC made its announcement.
SCHOOL SOFT DRINKS. CSPI's negotiations with the major soft drink companies to get soft drinks out of public schools contributed to an agreement announced through the Clinton Foundation and the American Heart Association. Coca-Cola, PepsiCo, and Cadbury Schweppes agreed to phase-out sugary soft drinks from schools.
FRITO-LAY LIGHTS. After a petition by Procter & Gamble and Frito-Lay, the FDA reversed as prior decision and allowed the companies to omit the warning on packages of foods containing the fake fat olestra, which causes mild to severe diarrhea and abdominal cramps in some consumers. Frito-Lay then removed all references to olestra, except in the ingredients statements, so that consumers would not know what they were buying. Sales of the products increased significantly, as did the number of adverse-reaction reports filed on CSPI's Web site. CSPI negotiated an agreement with Frito-Lay to change the labels of its chips to make the presence of olestra clearer.
FAT FREE PRINGLES. As with Frito-Lay, CSPI negotiated with Procter & Gamble to change the labels of Fat Free Pringles (now Pringles Lights) to make the presence of olestra clearer.
BETTY CROCKER. After CSPI met with General Mills about their Super Moist Carrot Cake Mix, which has only a tiny amount of dehydrated carrots, General Mills put a front-label notice on the package to let consumers know that the product contains only carrot-flavored bits.
AUNT JEMIMA (frozen) BLUEBERRY WAFFLES. Pinnacle Foods, the manufacturer, agreed to revise labels to make it clear that there was no actual fruit in the waffles and that the so-called blueberries were artificial bits.
TROPICANA PEACH PAPAYA. At the request of a private attorney, CSPI joined in a lawsuit against PepsiCo based on the fact that Tropicana Peach Papaya juice drink (1) contains no peach, (2) contains no papaya, and (3) is not a juice. Shortly after CSPI joined the litigation, PepsiCo agreed to modify its labels for Tropicana Peach Papaya, Tropicana Strawberry Melon, and Tropicana Twisters (even though the last two were not included in the lawsuit) to make it clear to consumers that these are artificially flavored drinks with very little actual juice.
ARIZONA Rx TEAS. CSPI joined lawsuits brought by private plaintiffs after Arizona Beverages ignored an FDA warning that it was making illegal claims of disease prevention and treatment with its Rx line of drinks. The courts dismissed the claims, and FDA never took enforcement action. This is CSPI's only closed case that did not achieve the desired results.