In a move that could out-MAHA MAHA, the City of San Francisco is suing Kraft Heinz, Coca Cola, Nestle, Kellogg, and six other producers of ultra-processed junk foods, claiming the companies have knowingly “engineered a public health crisis” by marketing highly addictive, nutrient-poor, sugar- and salt-laden foods linked to higher incidence of diabetes, fatty liver, cardiovascular disease, cancer, and depression.

The suit, filed on Dec 2 by San Francisco City Attorney David Chiu, contends that the ten named companies (Kraft Heinz, Coca Cola, Mondelez, Post, General Mills, PepsiCo, Nestle USA, Kellogg, Mars, and ConAgra) consistently use unfair and deceptive methods in the marketing of addictive, unhealthy processed foods, and that these practices violate California’s Unfair Competition regulation, as well as the state’s Public Nuisance statutes. The suit seeks financial restitution to offset the staggering public costs of healthcare and lost productivity due to diet-induced chronic metabolic diseases.

Allegations of “Addiction Science”

The 64-page text of the official complaint claims that the aforementioned corporations deliberately apply “addiction science” to boost sales, intentionally target children, Black and Hispanic communities and other vulnerable populations, and routinely utilize potentially harmful dyes and other chemicals in their products.

Chiu and the suit’s co-authors point out that processed food makers–many of which are or have been owned by major tobacco companies–have deployed the addiction marketing strategies perfected by Big Tobacco. And in many ways, the lawsuit echoes legal actions taken against the cigarette industry decades ago.

The complaint notes that beginning in the 1960s, tobacco companies including RJ Reynolds and Philip Morris acquired food and beverage brands, as packaged processed foods were on the upswing in the US.

“The tobacco companies integrated their food companies into their existing company structures rather than operating the food companies as independent entities. As a result, there was a transfer of people, information, and technology from Big Tobacco to the food and beverage industry. These companies capitalized on their understanding of the addictive qualities of cigarettes to design more addictive food products, and others in the ultra-processed food industry quickly followed suit.”

“Just like Big Tobacco, the ultra-processed food industry targeted children to increase their profits,” the authors add.

Intentionally Ignoring Harm

The lawsuit text points out that Big Food makers have been well aware of the detrimental health effects of their products for decades.

“On April 8, 1999, the CEOs of America’s largest food companies met in Minneapolis, Minnesota. The CTO of Pillsbury James Behnke and VP of Kraft Michael Mudd called the meeting to warn industry leaders that their companies had gone too far in engineering and marketing of ultra-processed foods for maximum consumption. Mudd explained to the industry leaders in attendance the devastating public health consequences of ultra-processed foods and warned that the industry’s conduct was costing the U.S. upwards of $100 billion a year and inflicting a public health toll rivaling that of tobacco. The presentation was not well received,” the authors note.

“San Francisco is leading the way in holding corporations accountable for engineering a public health crisis that has and continues to compromise the health of San Francisco’s children and adults,” said attorney Diandra Debrosse, of DiCello Levitt, one of three firms representing the City of San Francisco in the suit.

Jennie Lee Anderson, a partner at Andrus Anderson, another of the three law firms, adds: “By challenging these corporate practices, we’re helping to establish a legal framework that other cities can use to safeguard their communities.”

Ultra-processed foods (UPFs) have been a major focus of Robert Kennedy Jr’s MAHA movement. Under Kennedy, the Dept of Health & Human Services has made regulation of UPFs a priority–or at least a major talking point.

Pulling Ahead of MAHA

The Department’s MAHA Strategy Report: Make Our Children Health Again, issued last September, calls for new rules and state-level initiatives to make soda and UPFs ineligible for coverage under the federal Supplemental Nutrition Assistance Program (SNAP), aka food stamps, program. HHS has also issued a mandate to ban certain types of food dyes, and called for federal-level regulations requiring food makers to label UPFs as such.

The problem is that, despite widespread use of the term “ultra-processed” t in industry, in medicine, and among the general public, there’s never been a clear, authoritative definition of UPFs. People have a general sense that it means manufactured, chemically-laden comestibles of questionable nutritional value, but packed with sugar, salt, and toxic fats. And people default to the stance that “I know it when I see it.”

But for policy-making purposes, there’s never been a standard definition.

No Official Definition

Kennedy and company say they aim to change that. In the first MAHA report, issued in May, the committee tipped their collective hat to the the Nova food classification system’s definition: “industrially manufactured food products made up of several ingredients including sugar, oils, fats and salt, and food substances of no or rare culinary use.”

Developed by Brazilian public health researcher Carlos Monteiro and colleagues, the Nova system defines four general categories of foods, based on the degree of processing:

Group 1: Unprocessed or minimally processed foods (raw fruits & vegetables, whole grains, foods that have undergone little processing other than removal of inedible parts, roasting, freezing, drying, crushing, or pasteurization).

Group 2: Foods processed solely with ingredients used in traditional culinary practices, and produced by simple culinary processes.

Group 3: Foods prepared or processed by combinations of components from Groups 1 and 2 (some types of cheese, smoked fish or mean, preserved fruits, pickles, fresh-baked bread).

Group 4 Ultra-processed foods industrially-produced, and utilizing “food substances never or rarely used in kitchens, or classes of additives whose function is to make the final product palatable or more appealing.” These products are usually based on commodity ingredients from high-yield plants (corn, wheat) or from animals (dairy, beef, pork, dairy, etc).

Any official HHS definition of UPF will likely contain a lot of Nova’s conceptual DNA. But the formal definition has been slow in coming. Last July, HHS in partnership with the FDA and the USDA, issued a Request for Information to guide the definition. Nothing else has happened since.

Official definitions may seem like semantics, but they’re very important for clarifying the intent of rule-making and for shaping industry actions.

For example, there are many “healthy” foods that are in fact, highly processed, and definitely not produced by “traditional culinary practices.” Vegan milk-free cheeses and plant-based meat alternatives are among the examples. And can one really make the case that a cookie made from organic flour and cane sugar is any healthier than an Oreo? If mass-market cookie makers face legal wrath for allegedly causing the diabetes epidemic, by what principle are other treat-mongers let off the hook?

Burden of Proof

The San Francisco city attorney’s office is not waiting around for formal definitions or the working-out of food industry nuances. David Chiu and colleagues seem confident they know exactly who’s to blame for chronic disease in this country, and how the problem can be rectified.

It remains to be seen whether their complaints hold up in court, and whether their arguments can withstand scientific scrutiny.

One of the big challenges in proving public health harm is that while the epidemiological trends seem very clear–increased public consumption of packaged, processed foods correlates strongly with increased rates of many diseases–it is very difficult to prove that any specific food causes disease. Given that any processed food contains numerous ingredients, who’s to say that a particular food itself is harmful; it could simply be one of the constituents.

A food maker could easily argue that when consumed in moderation, its products are not harmful, which puts a burden of proof on the prosecutors to show that because UPFs are formulated to be addictive, moderation is practically impossible.

Back in the 1960s, in the run-up to federal requirements for warning labels on cigarettes, regulators and public health advocates were indeed able to prove that nicotine was addictive, that tobacco companies used flavorings and additives to increase appeal, and that smoking played a causal role in lung cancer, emphysema, and heart disease.

But tobacco was a relatively simple variable. Given the variety and complexity of UPFs, this type of proof will be a lot harder. Since there are no clear harm thresholds established for many chemicals used in food, it would be very difficult to definitively prove disease causation, or intentional corporate violation of established safety guidelines.

The companies named in the San Francisco suit have yet to comment on it, though FoxBusiness cites a fairly generic statement from the Consumer Brands Association, a food industry trade group, stressing that there is “currently no agreed upon scientific definition of ultraprocessed foods and attempting to classify foods as unhealthy simply because they are processed, or demonizing food by ignoring its full nutrient content, misleads consumers and exacerbates health disparities.”

A Patchwork Approach

If the San Francisco Supreme Court rules in favor of the plaintiffs–and assuming the decision is not reversed in an appeals court–it would set a bold precedent, one that could be emulated by other cities.

But municipal or state-level actions like this–especially in the absence of clear federal guidance–beg major questions. How are food manufacturers to respond to multiple, potentially divergent local level rulings? Why are certain companies sued, while others selling equally questionable products, are not? Is the nation’s public health well-served by a patchwork of different state or municipal requirements, labeling guidelines, and penalties?

Like it or not, the processed food industry is a major factor in the US economy. The ten companies named in the San Francisco suit employ roughly half a million Americans. Combined they generate upwards of $400 billion in annual revenue, representing approximately 1.4% of the US total GDP. Any move–federal, state, or local–that forces major changes in food industry business models could have unintended social and economic consequences. That’s not a reason to simply uphold status quo, but it’s important to keep in mind.

The intention behind the San Francisco lawsuit are noble, and it certainly reflects the widespread public desire to improve our food and reduce the ghastly burden of chronic illness. No doubt the suit will amplify public awareness of the UPF issue, and the move won’t go unnoticed by RFK Jr’s MAHA committee. The question is, whether such a move will achieve its broader aims, and whether this is the best way to go about it.