In Brief:
- Highly processed foods make up more than two-thirds of packaged food sold in the U.S.
- National and international public health organizations have issued warnings about their negative effects on health, warnings echoed by the “Make America Healthy Again” movement.
- A lawsuit from the city of San Francisco aims to end deceptive marketing of these foods, and seeks civil penalties to offset the damage it has caused. City Attorney David Chiu explains the case.
Liberal San Francisco might be an unlikely leader in the “Make America Healthy Again” (MAHA) movement, but a lawsuit it filed against 11 major food companies that market ultra-processed foods is reverberating across party lines.
“Ultra-processed foods are driving our chronic disease epidemic,” Health and Human Services (HHS) Secretary Robert F. Kennedy Jr. said in a July announcement of a multi-agency effort to establish a federally recognized definition for these foods.
The MAHA strategy names diet as one of four factors driving the rise in chronic disease among children. Highly processed foods are to blame, it says, causing both higher calorie intake and nutrient depletion — contributing to obesity, diabetes and other chronic illnesses.
The term “ultra processed” isn’t new. It’s been around since the 1980s, but gained traction when a 2009 commentary in a public health journal argued that heavily processed foods were an overlooked contributor to poor health.
Food “processing” can be as simple as washing or refrigeration. But ultra processing is different — whole foods are treated with industrial techniques and combined with additives such as sugar, salt or chemicals to enhance their flavor and appearance. (Potato vs. sour cream onion potato chip; fresh poultry vs. spicy breaded chicken nugget.)
Heavy processing alters the structure of whole foods in ways that affect how they are metabolized. Sugar and fat in them is absorbed more quickly, causing spikes in blood glucose. Low fiber content disrupts the balance of microorganisms in the digestive tract. The stage is set for other body processes to go out of kilter.
As much as 70 percent of packaged food in the U.S. is ultra processed. These foods supply more than 60 percent of the caloric intake of children.
These foods are engineered to be appealing, and they’re also often less expensive and more convenient than whole foods. Food makers have argued that the affordability crisis families now face will only get worse if states step in to regulate ultra-processed foods.
The lawsuit San Francisco filed in December against major producers of ultra-processed foods, naming defendants including Kraft, Kellog, General Mills and Coca-Cola is the first of its kind. It seeks an end to marketing practices that mislead consumers about their health risks, and asks for an award of financial penalties (no amount specified) to “abate the public nuisance” created by these practices.
A complaint weighted with nearly 250 references makes the case that food companies have long been aware of the potential for ultra-processed products to harm health, risks that have been confirmed by a growing body of research.
(HHS)
The National Association of Manufacturers (NAM) dismissed these accusations on the basis that their products meet federal guidelines. “Allegations of public nuisance against food and beverage manufacturers that fully comply with FDA safety and nutrition standards are an abuse of the legal system,” NAM Chief Legal Officer and Corporate Secretary Linda Kelly said in a statement from the group.
In a conversation with Governing, San Francisco City Attorney David Chiu talked about why the city filed its complaint and what it hopes to achieve. The interview has been edited for length and clarity.
What’s the reason for this lawsuit?
Our case is about companies that designed foods to be addictive and marketed them to maximize profits.
Like the tobacco industry, they knew their products made people very sick, but hid the truth from the public, made untold billions, and have left taxpayers, patients and public health systems to clean up the mess.
Why a lawsuit from a government entity?
This [marketing of ultra-processed foods] has resulted in a public health crisis, with skyrocketing costs that are borne by patients and taxpayers.
Local and state governments have borne enormous health-care costs from chronic diseases due to ultra-processed foods. We need to hold this industry accountable.
Why is San Francisco taking the lead, and not Rob Bonta, the California state attorney general?
You’d have to chat with him about that. What I would say is that over the years, our San Francisco city attorney’s office has successfully held industries accountable that profited enormously from products they knew harmed the health of millions.
We were early in the litigation against the tobacco industry, the lead paint industry and the opioids industry. This is the next fight. This is just what our office does.
Why is this the right time for this?
In recent years and months significant research has come out, which took years to compile, that confirms what we know: Ultra-processed foods are making us sick, plain and simple.
All of these recent studies, and massive data sets, confirm the link between ultra-processed foods and chronic diseases, from Type 2 diabetes and obesity to fatty liver disease, heart disease, kidney disease and even depression.
What kind of response have you had from supporters of the Make America Healthy Again agenda?
I’ve been very heartened by the support for our litigation, from people of all political backgrounds. Americans across the political spectrum don’t want to be forced to eat food that is making us sick.
Because of the tipping point in the science, and the undeniability of the science, it’s not a surprise that the head of HHS cares about this and is looking into it.
Have your earlier consumer protection suits provided any clues about how a fight like this might play out?
One of the things that we are trying to emphasize about this lawsuit is that the ultra-processed industry is not just like the tobacco industry — it is Big Tobacco.
The history of the industry is part of what got me so interested in this topic. In our complaint, we lay out how in the 1960s, Big Tobacco bought food companies. R.J. Reynolds purchased Nabisco and Del Monte. Philip Morris purchased General Foods and Kraft. Big Tobacco transferred its people, ideas and technologies around addiction sciences into this ultra-processed food industry. They used the Big Tobacco playbook to research, design and market addictive products.
What we have seen over the years is that the industry has attempted to deny the science, deceive the public. I don’t expect anything different this time.
What do you hope to achieve?
We are not asking for products to be banned. With our lawsuit, we’re simply saying that the industry needs to stop with unfair and deceptive [marketing] practices. It needs to pay restitution: civil penalties to offset health-care costs that all of the rest of us have borne.
I think what we’re asking for is measured. We welcome others into the discussion, including RFK Jr. and his colleagues.
