Lawyers Ready Suit Over Soda

A soft-drink industry guideline advocates limiting soft drinks to half of the choices in high school vending machines.
A soft-drink industry guideline advocates limiting soft drinks to half of the choices in high school vending machines. (By George Ruhe -- Bloomberg News)
By Caroline E. Mayer
Washington Post Staff Writer
Friday, December 2, 2005

The fight against sugary soft drinks is beginning to foam over.

A coalition of lawyers who have actively and successfully sued tobacco companies says it is close to filing a class-action lawsuit against soft-drink makers for selling sugared sodas in schools. The lawyers, who have been trying to develop a case against the soft-drink makers for more than two years, say a lawsuit could be filed within the next few weeks, probably in Massachusetts, which has one of the nation's most plaintiff-friendly consumer-protection laws.

As news reports of the pending lawsuit proliferate, the beverage industry is shoring up its defenses. Yesterday, the American Beverage Association released a study that showed a 24 percent drop in purchases of full-calorie carbonated soft drinks at schools from 2002 to 2004. In 2004, the study showed, high-schoolers drank the equivalent of one 12-ounce can of such soda a week, while younger students drank less.

The reduction in soft-drink consumption in schools "started long before there were trial lawyers looking for an industry to sue," said Susan Neely, president of the beverage association. "Litigation isn't the answer to a complex social problem like childhood obesity," she added.

The beverage association's study showing the decline "reflects the overall trend of the industry," said John Sicher, editor and publisher of Beverage Digest. "Carbonated soft drinks are down across the board; water and sports-drink consumption is up."

Leading the litigation effort is Richard A. Daynard, an associate dean at Northeastern University School of Law in Boston, who is also president of the Tobacco Control Resource Center and chairman of the Tobacco Products Liability Project, both of which have provided legal support to attorneys suing tobacco companies. Daynard was involved in many of the state cases against the tobacco firms that led to the landmark $246 billion settlement in 1998.

Joining Daynard is Stephen A. Sheller, a Philadelphia lawyer who came up with the legal theory that tobacco firms deceived consumers into thinking their low-tar and -nicotine cigarettes were safer to smoke than regular cigarettes. That theory helped lead to a $10 billion consumer-fraud verdict against Philip Morris USA in an Illinois state court two years ago, which is under appeal.

Also involved in the prospective lawsuit is the Center for Science in the Public Interest, a consumer advocacy group that has aggressively pressed for more explicit food labels and less fat and sodium in all kinds of food. Earlier this year, the group called for federally mandated health warnings similar to those on cigarettes.

"The idea is to get soda machines out of schools because they are clearly making a substantial contribution to the obesity epidemic," Daynard said yesterday in an interview. "This is an unfair practice under state consumer-protection laws," he said. The suit's legal basis will be tied to the concept of "attractive nuisance: If somebody has something on his land like a swimming pool that he knows is attractive to kids and dangerous, then he has some obligation to keep the kids away from it," Daynard said. "You want to keep kids away from dangerous objects, and a soda machine is demonstrated to be a dangerous object for kids."

Daynard said that while the legal theory is ready, the challenge is finding the right set of parents to sign on as plaintiffs for the class-action case. "It's taking us longer than we expected," he said.

Victor E. Schwartz, a Washington lawyer who has advised many major companies on product-liability policies, said the case "would require a radical modification of traditional liability laws with an expansion of statutory consumer-protection claims." However, he noted, Massachusetts is one of the few states in the country where plaintiffs do not have to demonstrate actual damage in a consumer-protection case -- just that a violation occurred.

The lawsuit is just part of an ongoing campaign to get soda machines out of schools. At the urging of parents, many public school systems have already imposed restrictions, including Montgomery, Fairfax and Arlington counties and the District. In September, California enacted a law banning soft drinks in all state public schools.

That ban went further than the beverage association's voluntary industry guidelines, announced in August, which seek to limit soft-drink sales to no more than 50 percent of a high school vending machine's options.

Fizzy Facts
Volume of beverage purchases at elementary, middle and high schools, 2002-04
Fizzy Facts
SOURCE: American Beverage Association | GRAPHIC: The Washington Post - Dec. 2, 2005
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