On December 2, 2025, the San Francisco City Attorney brought an ultra-processed foods (UPF) lawsuit, the first brought by a government body. The Defendants are Coca-Cola, PepsiCo, General Mills, Kellogg, Post, Nestlé, Kraft Heinz, ConAgra, Mondelēz, and Mars. Even though the lawsuit is in its early stages, it prompts two considerations—whether other municipalities or states will sue, and whether other companies will be named as Defendants. Both considerations should be regarded as affirmative, necessitating defense and proactive strategies.
The lawsuit was brought under California’s Unfair Competition Law and public nuisance statutes. The former is cited in support of allegations of unfair and deceptive marketing methods. The latter is cited in support of allegations of a burden on the city, i.e., UPFs are linked to health-care costs for chronic conditions, such as obesity, diabetes, and cancer.
The legal theory of the San Franciso lawsuit differs from that of UPF lawsuits that have been brought by individual citizens, which are under the theory of product liability/personal injury. There, it needs to be proven that the product was defective; the defect caused the injury; the product had been used as intended or as reasonably foreseen; and, there are measurable damages that can be awarded.
The difference in legal theory aside, a company’s defense strategy must attack causation. A defendant predictably will argue that there is no scientific proof that the alleged UPF is the lone, direct cause of an illness. The argument will be that causation is multifactorial, involving, for example, genetics, lifestyle, and overall caloric consumption. Various product liability and personal injury lawsuits have been dismissed or otherwise defeated because causation was not convincingly established. The San Franciso case will have to overcome that legal hurdle.
A defense strategy should cite that there is no legal definition for UPF. If a lawsuit is brought, say, after the issuance of a definition, a defendant can argue that the definition is arbitrary or give a convincing reason why the definition should not apply to its products. In the interim, regarding lawsuits brought by a municipality or by a state, a defendant can argue that its products comply with federal regulations, which preempt lower regulations.
Another component of a defense strategy should be to debunk any analogy to Big Tobacco. The analogy is that “hyper-palatable” UPFs are formulated to be additive, much the way that tobacco products were formulated to be addictive. A plausible counter, therefore, is to argue, scientifically, that the human response to fat, salt, and sugar is not like an addiction to nicotine.
While the preceding discussions are useful in the wake of a filing, the advantages of avoiding lawsuits are considerable. Lawsuits involve time and expenses, in addition to the potential for negative publicity. It behooves a food company to devise a proactive strategy, to reduce exposure, and to increase readiness.
Being proactive is part of risk management. It does not require a company to concede that its practices are deceptive and unethical. It does, however, require a willingness to objectively audit its practices, mindful of how those practices might be cited against the company in lawsuits.
Marketing audits should evaluate health-related claims, such as those made in online and print media, in addition to those made on the packaging and on the labeling. Has the company been loose with its health-related claims? A general rule is that the more artificial colors, additives, emulsifiers, and heavy amounts of salt, sugar, and fats a product contains, the greater the potential exposure to allegations of deceptive claims. An additional focus should be applied when the product is marketed to children who are described in lawsuits as vulnerable. As a result of a marketing audit, the company should revamp its claims, as needed, without unduly decreasing the product’s marketability.
Formulation audits should be tasked with the removal and/or replacement of ingredients that either have come under scrutiny by regulators and by advocates or have the potential of coming under such scrutiny. The list of controversial ingredients is growing, but a poster-example is Red Dye No. 3. Innovative reformulation can counter allegations of public nuisance and a failure to warn, both cited in the San Francisco lawsuit.
A company’s proactive strategy should recognize other stakeholders and devise ways of cooperation. Memberships in trade organizations and encouraging their aggressive lobbying are important. On a related note, a UPF lawsuit can be brought against members of a food company’s supply chain, including retailers. It’s wise to keep the retail industry apprised of the food company’s proactive strategy and to explore opportunities in advancement of mutual interests.
Defense and proactive strategies related to the UPF debate in general, and specifically its lawsuits, involve such disciplines as marketing, product formulation, processing, legal, and, yes, packaging. It’s packaging that makes processed foods (ultra or not) possible. Food packaging is heavily regulated. It’s not being advocated herein that packaging professionals should have the knowledge expected of lawyers. But packaging professionals still should understand that lawyers must rely on the expertise of others in building a defense. Packaging professionals need to know how lawsuits are triggered and defended, to be able to fulfill their role in legal proceedings.
Sterling Anthony, CPP, consults in packaging, marketing, logistics, and human-factors. A former faculty member at the Michigan State University School of Packaging, his contact info is:100 Renaissance Center, Box-176, Detroit, MI 48243; 313/531-1875; [email protected]
