Sean McBride is the founder of DSM Strategic Communications, former executive vice president of the Grocery Manufacturers Association (now the Consumer Brands Association). Opinions are the author's own.
Those who easily dismiss the City of San Francisco’s recent lawsuit against packaged food companies do so at their own risk. Until now, plaintiff’s lawyers seeking big bucks from “Big Food” have been held in check by the courts. To the dismay of class action lawyers, anticorporate activists and big government protagonists, judges have determined time and again that processed food is not addictive and does not cause obesity and related diseases.
The San Francisco lawsuit, and virtually every one that came before it, is loaded with meaningless, but highly emotional, descriptions of long-ago business connections between tobacco and food companies. That information is then surrounded with specious allegations of food addiction that have been consistently rejected by mental health experts.
Obesity legal cases against food companies have been dismissed for lack of evidence, but the recent switch in nomenclature from processed food to ultraprocessed food has breathed new life into food policy interventionists and their friends within the trial bar. Those food company antagonists may soon get an assist from the U.S. government.
How?
The U.S. Food & Drug Administration, spurred by Health and Human Services Secretary Robert F. Kennedy Jr. will soon issue its first-ever formal definition of ultraprocessed foods – one that carries the full weight and authority of the federal government. Never mind that the nutrition and public health community globally cannot agree on what UPF means. While we don’t know whether the UPF definition will tilt toward benign or ambitious, it seems likely that the FDA’s classification will throw hundreds or thousands of grocery SKUs into the UPF category.
Once final, the RFK Jr.-led federal government will likely use the definition as the backbone of a host of unwarranted policies that stigmatize those products – starting with discriminatory labeling schemes, advertising restrictions and bans from federal nutrition programs.
Then, more cities, states’ attorneys general, and class action lawyers, may use the FDA’s UPF definition as the basis to file sweeping lawsuits blaming food companies for obesity, diabetes and other public health problems – lawsuits that essentially carry the imprimatur of the U.S. government.
If this scenario unfolds, anti-food industry activists would be largely successful in attaching the tobacco litigation playbook to “Big Food.” That would be a breakthrough because in addition to the marketplace changes tobacco agreed to in its battle with the government, it has since paid more than $200 billion in penalties.
Moving beyond the headlines and politics of it all, the litigation landscape surrounding packaged food may hinge on the ability of plaintiffs to prove that food addiction is real. As I wrote extensively about, that is a tall order, because food addiction remains unproven and is not recognized by the Diagnostic and Statistical Manual of Mental Illnesses of the American Psychological Association.
If food addiction isn’t real the UPF litigation strategy starts to unravel fast and Kennedy’s food policy agenda may be vulnerable to litigation from the food entities FDA regulates.
We don’t know where all this is headed, but observers may want to grab some popcorn and soda in 2026, as the UPF landscape plays out. It’s going to be interesting.
