050: Trans-Frivolous Lawsuit

Stella Case No. 050, Originally Published: 29 May 2003

After reading several articles about “trans fatty acids,” which are a product of the partially hydrogenated oils used in many foods, San Francisco attorney Stephen Joseph became concerned. The articles, among the 3,000 articles that have been printed in various publications since 1993, said that trans fats are “hidden” in many snack foods. Trans fats are thought to increase cholesterol and cause other health problems. The National Academy of Sciences’ Institute of Medicine recently linked trans fats with heart disease, and said that they cannot be consumed safely in any amount; clearly, then, they are a reasonable cause for alarm.

Based on these growing concerns, the U.S. Food and Drug Administration ruled that food manufacturers must list trans fats on the standard nutritional information labels. But because food manufacturers are fighting the rule, it was still pending as attorney Joseph was getting more and more upset.

One of the many thousands of products that contain trans fats: Oreo cookies — the best-selling cookies in the United States. Joseph decided that Oreo cookies were so dangerous he filed a lawsuit in Superior Court in Marin County, Calif., seeking an injunction forbidding Kraft Foods, owner of Oreo maker Nabisco, from selling the snack to children in California.

The lawsuit, based on a California law that holds manufacturers liable for unsafe products if it’s not “common knowledge” that the product is unsafe, didn’t target any other foods, even though about 40 percent of all foods include trans fats, including cookies, crackers, and other processed foods.

“Tobacco is well known as an unsafe product. Trans fat is not the same thing at all. Very few people know about it,” Joseph said after filing his suit. “That’s why [my] trans fat [lawsuit] is a far stronger case than tobacco or [cases against] McDonald’s,” he reasons, “because people know those are dangerous.”

In addition to his suit, Joseph has started a non-profit group whose goal it is to ban trans fats, and printed t-shirts that say “Don’t Partially Hydrogenate Me.” The group’s web site recorded record traffic after articles about Joseph’s lawsuit hit the newspapers.

“Anything that brings people’s attention to how dangerous and unhealthy trans fat can be is probably a good idea,” says Calif. State Sen. Debra Bowen, who is known for nutrition-reform legislation. Anything, Sen. Bowen? Be careful what you ask for. The publicity resulting from Joseph’s lawsuit was intense: articles about “suing Oreos” ran all over the world. In fact, Joseph says, he got so much publicity for his cause and web site that — surprise, surprise — he dropped his lawsuit just 13 days after he filed it.

“You’ve got to recognize when you’ve scored a home run,” Joseph said. “We have raised the awareness of trans fat to the top of the mountain. What more success do I want? To force Kraft to crawl? Kraft is going to have to deal with the fact that the public is now aware of what it puts in Oreos.”

Sen. Bowen was unhappy with Joseph dropping the suit. “To see someone file a suit, then drop it after they’ve decided they’ve gotten enough media attention for it, is pretty disappointing,” she said. “A stunt like this does more harm than good because people will walk away from it thinking since the suit was a joke, then any claims about trans fat being dangerously unhealthy for them must be a joke, too.”

Meanwhile, Kraft Foods said it only got 277 calls or e-mails about Oreos after the suit hit, and about half of those supported the company. Only 15 percent were “critical” of the company. The rest merely wanted more information.

Still, Joseph considers the suit a success. “At the time the lawsuit was filed nobody knew about trans fat. Now everybody knows,” he says.

A spokesman for Kraft Foods said the company “doesn’t believe that the courts are the place to make nutrition policy. That’s best handled by nutrition professionals and regulatory agencies.” He noted that the company was never served with the suit.

Is that the function of the civil courts in the U.S.? To drive publicity for special interest groups? To say “nobody knew” that trans fats ignores the 3,000 articles that have been printed in the last decade, and ignores the fact that the FDA is already working to increase public awareness of the issue on nutrition labels. If awareness is at “the top of the mountain,” the “mountain” must be made of the thousands of articles and regulatory actions that preceded Joseph’s suit. And if the public was “not aware” of trans fats after 10 years of articles, how does a couple of weeks of publicity about a frivolous lawsuit help? Obviously, it doesn’t — but it does serve to drive traffic to Joseph’s web site, though only at the cost of further clogging up the courts so action on real issues is further delayed.

Food manufacturers have a duty to ensure consumers are informed of relevant aspects of nutritional values so they can make intelligent decisions about what they buy and eat. That’s exactly what the FDA is working toward, if slowly, and it’s not to the manufacturers’ credit that they’re fighting the FDA’s action to require trans fat labeling. But that doesn’t make the issue worthy of court time.

As officers of the court, attorneys are supposed to be gatekeepers to keep frivolous lawsuits out of the system, not file them themselves for selfish reasons. That Kraft was never even served with the suit indicates Joseph had no intention to have the court issue rulings on the case — or to entertain Kraft’s legal response. Why wasn’t Joseph censured by the State Bar of California for his outrageous exploitation of the courts by using the legal process as a publicity tool for his own special interest group?

Sources

• “Lawsuit Seeks to Ban Sale of Oreos to Children in California,” San Francisco Chronicle, 12 May 2003
• “S.F. Lawyer Plans to Drop Oreo Suit,” San Francisco Chronicle, 15 May 2003
• “S.F. Lawyer Says He’s Dropping Suit Against Oreo Cookies,” Associated Press, 14 May 2003

Case Status

Withdrawn, as noted. The case was a “runner-up” for the Stella Award for the most frivolous case of 2003.

My 2020 Thoughts on the Case

Biochemist Fred Kummerow figured out that trans fats were a major problem in cardiovascular disease in the 1950s. He published those findings in 1957 in the journal Science. Nutritionists of the day scoffed: surely “everyone” knew it was the fats from red meat that was a problem, not trans fats. No, Kummerow, argued, moderate amounts of red meat and butter are fine in a diet. The debate raged for decades.

To prove his contention, Kummerow was able to get trans fats included in the Nurses’ Health Study, which started in 1976 and tracked 116,000 nurses to assess their diets, exercise, and disease risk factors. The study took more years, but by 1993 it conclusively showed the link between trans fats and coronary artery disease, and other scientists estimated that trans fats caused about 90,000 premature deaths — per year.

Kummerow then turned his fight to the U.S. Food and Drug Administration, trying to get them to ban trans fats. The FDA dragged its feet, even after the Center for Science in the Public Interest jumped on board, petitioning in 1994 that the FDA at least require trans fats to be mentioned on food labels. The FDA didn’t even grant that petition until 2006. The American Heart Association had started warning about the dangers of trans fats in 2004. Still the FDA did little — until 2013, when Kummerow sued the government over its inaction …when he was 98 years old! The FDA finally backed down and ordered food manufacturers to get trans fats out of food within three years.

That deadline was June 18, 2018. It took 58 years from his initial discovery, but “Science won out,” Dr. Kummerow declared. He died in in 2017, at 102. He never gave up eating red meat, and eggs scrambled with butter.

So, what are my 2020 thoughts on the case? My opinion of attorney Stephen Joseph being a slimy publicity seeker has not changed one bit. The hero of saving 90,000 lives/year from trans fats is Fred Kummerow, who spent 58 years trying to get people to listen, rather than giving up after 13 days.

Letters

One last follow-up on the lawsuit-happy valedictorian:

Alden in New York: “I was really impressed by the thoughtful scholarship, if you will, of all the comments on Blair’s notoriety. While not everyone agreed, each comment was presented with exceptional eloquence and considered reasoning. These comments speak volumes on the quality of your readership.”

I do think that comments from readers add a lot to TSA, and help bring up points that I either didn’t think of, or didn’t take the time or space to explore.

Regarding the last case of the high school student who committed millions of dollars’ worth of online investment fraud who sued for $50 million over being kicked off his baseball team:

David in Missouri, writes: “Cole Bartiromo states that by being unable to play baseball, he was denied the opportunity to make a favorable impression on college recruiters and professional scouts. A high school baseball season is usually 25 to 30 games long; most players also play in other leagues during the summer (American Legion, etc.) Cole couldn’t manage to find a team to take him? A baseball career (any professional sports career) is a ‘crap shoot’ at best; even the very best in high school often find themselves overmatched in college or the pros. He could be playing baseball in college if he was so good. Cole needs to get a grip and realize that he’s just another part of the bigger problem in this country — the feeling of entitlement.”

Amber in Illinois: “If Bartiromo is truly as good as he thinks, then he would easily make any college baseball team as a walk-on. Although he might have to pay [tuition] (like a commoner? Can’t have that, now can we?) for his first year, he would easily earn a scholarship for his sophomore thru senior years. Some great athletes have done it before. If Bartiromo is as good as he thinks, he could do it too.”

But not everyone agreed:

Douglas in Washington D.C.: “The criterion for getting on the baseball team should be nothing other than the boy’s ability to play — and for a reason that has nothing to do with Internet fraud.”

Since when has participation in extracurricular school activities been based solely on ability? For the most obvious example, think of all the high school jocks — and college jocks, for that matter — who have been declared “ineligible” to play because of poor grades. Certainly a school should have the right to limit participation by those who present a poor role model, say by committing multiple felonies. But even if the school did wrong by keeping him from playing, it is still not reasonable to assume it destroyed some sort of fantasy pro sports career, thus entitling him to $50 million in “lost earnings.”

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