Lawsuits Over Mac and Cheese Could Be Hard for Courts to Swallow
ALM Media
Updated
A report finding hazardous chemicals in boxed macaroni and cheese may have alarmed fans of the inexpensive and convenient meal, but food safety lawyers say any litigation over the issue faces formidable challenges.
The envelope of powdered cheese flavoring in macaroni and cheese has high concentrations of phthalates, a class of chemicals that have been linked to health risks when consumed by pregnant women and young children, according to test results issued in June by a group called the Coalition for Safer Food Processing and Packaging. Phthalates are not added as an ingredient but are believed to migrate into food through contact with plastic processing equipment and packaging.
Exposure to phthalates in pregnant women appears to block production of testosterone in the developing male fetus, raising the risk of malformed reproductive organs as well as infertility, low sperm counts, and a heightened risk of testicular cancer, according to a July 12 New York Times article on the study. Exposure to phthalates in early childhood can cause aggression, hyperactivity and cognitive delays, the Times article said.
The personal injury firm of Eichen Crutchlow Zaslow & McElroy in Edison took note of the uproar over macaroni and cheese, posting a summary of the study's findings on its website and Facebook page. After outlining phthalates' potential link to birth defects, the law firm said, "If you suspect your child developed medical conditions or birth defects due to a toxic chemical, contact our New Jersey birth injury lawyers at Eichen Crutchlow Zaslow & McElroy," followed by the firm's phone number.
Daryl Zaslow of that firm concedes that establishing a causal link between any illness or birth defect and consumption of a particular product would be difficult. But a consumer fraud claim for failure to disclose the presence of phthalates on the list of ingredients might be viable, said Zaslow.
The firm's solicitation on the macaroni and cheese study "was not approved by any of the attorneys" at the firm before it was posted and will be taken down, said Zaslow.
Bringing a claim in connection with the report on macaroni and cheese would be difficult because of the difficulty of establishing causation, said William Marler, whose six-lawyer Seattle firm, Marler Clark, focuses on food safety issues. In addition, any harm resulting from the consumption of phthalates would take years to develop, said Marler.
"Courts are conservative when it comes to allowing for potential harm that hasn't manifested itself," said Marler. Although his six-lawyer firm has found success suing companies over tainted food, he looks for cases with a short link between the consumption of food and the injury.
"Ninety-nine percent of the cases I deal with are bacterial or viral cases where you consume a food and get sick within days or weeks. The causation component of those cases lend themselves to standard civil justice. Anytime you have a case involving an additive or contaminant that has this possibility of harm or shown in some sort of study to cause a problem that might occur 30 years from now, those are cases I normally don't take," said Marler.
Although a claim for injuries stemming from phthalates in macaroni and cheese would face high hurdles, a class action for medical monitoring might get a more welcoming reception from a judge, said Marler.
"Unfortunately, medical monitoring class actions are one of those class actions where the victims get a small pot of money and the lawyers do quite well, which is how class actions get a bad reputation," said Marler.
Causation is a formidable challenge for any litigation over phthalates in macaroni and cheese because a plaintiff would need to prove that the specific chemical that is present in the defendant's product is the cause of the complained-of health problems, as opposed to other types of phthalates or other chemicals, said Timothy Lytton, a professor of law at Georgia State University College of Law in Atlanta who focuses on food policy.
In addition, to recover under theories of negligence, failure to warn or a design defect, a plaintiff would have to prove that the defendant was aware of the contaminant in its food and aware of the risk it posed, said Lytton. Plaintiff lawyers will need to evaluate such cases very carefully before agreeing to proceed, he said.
But in spite of the hurdles facing plaintiff lawyers, plaintiffs enjoy certain advantages in litigation against food manufacturers, according to Lytton. Food companies exist on small margins, are highly competitive, and are very sensitive to reputational pressure, which prompts them to undertake careful calculation of the risks of such suits in hopes of keeping them from dragging on, Lytton said.
"The process of filing a suit, and press coverage that comes from that, could push the companies into settlement even without proof of specific causation. There's a kind of balancing act that goes on based on heightened reputational pressure," Lytton said. "Plaintiffs attorneys like to frame cases for courts that involve wrongdoing by big corporate entities and innocent victims who suffer tragic injuries. Those types of stories are tailor-made for news coverage, more than an FDA report," he said.
In addition, civil litigation over food safety can have a significant impact on the food regulatory system, Lytton said. The Food and Drug Administration, which "has a huge number of issues on its plate," has been the focus of a campaign seeking stricter regulation of phthalates, he said. If a suit over phthalates reaches the discovery stage, it pushes the issue higher on the agenda for policymakers, as Congress and the FDA take note of media coverage of such litigation, he said. In that respect, even if civil litigation fails, the filing of a suit might be "more important than the ultimate outcome," he said.
The Coalition for Safer Food Processing and Packaging, which commissioned the phthalates report from a lab in Belgium, tested other cheese products for phthalates but found the highest concentration in the cheese powder from boxed macaroni and cheese. The report tested 10 types of macaroni and cheese and found elevated phthalate levels in all 10. The brand names of products tested were redacted from the lab report, but the coalition's publicity has targeted Kraft, which CNN said has 76 percent of the market.
Kraft did not respond to requests for comment, but said in a statement reported in other media that it does not add phthalates to its products, and that "the trace amounts that were reported in this limited study are more than 1,000 times lower than levels that scientific authorities have identified as acceptable" and that "our products are safe for consumers to enjoy."
Another brand of boxed macaroni and cheese, Annie's Homegrown, said in a statement that it is "troubled by the recent report of phthalates found in macaroni and cheese." Annie's said the FDA has not set a threshold for levels of phthalates in food, but the level in its products is lower than a standard set by the European Food Safety Authority. The company added that the presence of phthalates in the food chain is " widespread and complex issue that affects products well beyond the food industry" and that it is "working with our trusted suppliers to understand where phthalates are coming into our supply chain and how we can evaluate and limit them."
