COPY OF EMAIL SENT
TO MAJOR SCHOOL BOARD ASSOCIATIONS, SCHOOL BOARDS, AND THEIR ATTORNEYS
TO: School Boards, Board Members, and Attorneys / / PLEASE FORWARD AS
APPROPRIATE
FROM: Prof. John F. Banzhaf III, Professor of Public Interest Law, GWU
Law School
RE: Imminent Class Action Law Suits Over Soft Drink Sales in School
Now that it has just been announced publicly, I write to formally
advise you of the imminent filing of massive class action law suits in
Massachusetts -- and subsequently in other states -- aimed at the sale
of sugary soft drinks in schools; to warn of your inevitable
involvement in these law suits as a named party or otherwise; and to
suggest steps you may wish to consider taking now regarding your
potential legal liability.
http://www.boston.com/news/nation/washington/articles/2005/12/02/lawyers_ready_suit_against_soft_drinks/
http://news.yahoo.com/s/afp/20051214/ts_alt_afp/afplifestyledrinkjustice_051214060145
TOBACCO LAW SUIT BACKGROUND:
As you may know, a campaign I helped start more than thirty years ago
to use legal action as a weapon against the public health problem of
smoking has been very successful. It has resulted in many multi-million
dollar and even billion dollar verdicts or settlements in law suits
initially regarded by many as "frivolous"; eliminated cigarette
commercials and billboards, killed off Joe Camel, and helped create a
massive drop in cigarette consumption, and a resulting decline in
unnecessary premature deaths, disabilities, and health care costs. See,
e.g., http://banzhaf.net AND http://ash.org/victories.html
FAT LAW SUIT BACKGROUND:
During the past several years, my colleagues and I have begun to
duplicate this effort by using innovative legal actions as a weapon
against the public health problem of obesity. So far, six fat law suits
have been successful. They have banned trans fat from Oreo cookies,
provided more accurate nutritional information, served as a catalyst
for banning sugary soft drinks in New York City, and forced McDonald's
to pay out $20 million. Another law suit against McDonald's for
contributing to the obesity of minors was recently reinstated by a
unanimous U.S. Court of Appeals and subsequently by the trial judge --
all four of whom upheld the novel legal theories which many initially
regarded as "frivolous." Moreover, as DISCUSSED
BELOW, even the threat of legal action against school board
members over school
soda sales has proven to be very effective.
See generally, http://banzhaf.net/obesitylinks
AND http://banzhaf.net/docs/sixwon
"COKE FOR
KICKBACKS" [pouring rights] CONTRACTS: As you are no doubt
aware, many school boards have contracts under which sugary soft drinks
are sold in schools. In return, the schools are compensated, usually in
the form of commissions or bounties ("kickbacks") for every sugary soft
drink sold to students. Because of the now-overwhelming evidence [SEE
BELOW] that making such beverages available at schools has a major role
in promoting pediatric obesity, these arrangements have been chosen as
the next major target by attorneys concerned about obesity-- many of
whom, like myself, were also successful in using legal action against
tobacco.
THE
IMMINENT LAW SUITS: As reported in the media, these massive
class action law suits will be brought initially in Massachusetts, and
subsequently in a number of other states. The background and legal
theories have been described in a number of news articles, SEE BELOW,
The suits will name bottlers as defendants, and argue that they were
negligent and violated consumer protection laws in establishing such
arrangements with school boards.
http://banzhaf.net/docs/americanlawyer AND
http://banzhaf.net/docs/washtimessoda
YOUR
POTENTIAL NON-PARTY INVOLVEMENT: Although current plans do not
call for school boards or school board members to be included as named
parties in the initial round of law suits, it is clear that school
boards, and probably individual school board members, will nevertheless
become involved in several ways. For example, even if they are never
brought in as parties in the law suits, their unique role in the
arrangements attacked by the law suits brought against bottlers will
inevitably involve them as targets of pre-trial discovery seeking
documents and their testimony under oath, requiring their testimony at
any trials, their involvement in settlement discussions, and possibly
-- if sought by the bottlers in actions for third-party contributions
[i.e., to share in the legal liability] -- to pay any penalties for
alleged breach of contract and/or other damages.
YOUR
POTENTIAL INVOLVEMENT AS A PARTY: For more serious is the real
possibility that school boards -- and possibly even individual school
board members -- will become involved as named parties to these law
suits. This could happen in several ways.
FIRST, the bottler defendants
could seek to bring the school boards in as necessary parties. They
presumably would argue that it is the school boards -- entities charged
with the primary responsibility for protecting the health of the
children -- which made the final decision to provide students with
sugary soft drinks during school, and that the school boards are
therefore an essential part of any resolution of the problem.
SECOND, perhaps as the result
of pre-trial discovery of previously unknown facts -- e.g., secret
memos or minutes of school board meetings, "wining and dining" of
school board members or other benefits to them, etc. -- the pleading by
the initial plaintiffs could be amended to
include new parties such as school board members.
THIRD, other parents who
believe that the school board and its members are at least equally at
fault -- including some who might wish to run for school board
membership and/or have other agendas they wish to promote -- may bring
new law suits against the school board and/or its members, and then
probably seek to have these new law suits consolidated with the
existing law suits (i.e., those by the initial plaintiffs
against the bottlers).
YOUR
POTENTIAL LEGAL LIABILITY: School boards -- and in some cases
even individual school board members -- could be sued and potentially
held liable under a variety of legal theories ("causes of action").
Some of
the major ones are discussed very briefly below.
NEGLIGENCE:
School boards -- and perhaps even individual school board members --
could be sued for breaching their duty to protect the students who
attend the school. It could be alleged that, in view of the
overwhelming body of scientific and medical evidence that the
availability of sugary soft drinks at schools is a major factor in
causing obesity -- not only because of the unnecessary calories
actually consumed in school, but also by the impact such at-school
consumption has on children's eating and drinking habits outside of the
school venue -- the school board was negligent (did not exercise
reasonable care) in providing these sugary soft drinks to students.
After all, if a court can conclude, in view of supposedly widely
recognized dangers of dodge ball, that it was negligent for a school to
permit young children to play the game at school, it can even more
easily conclude that, in view of the more clearly known dangers of
sugary soft drinks, it is negligent to serve them in schools. See
Lindaman v. Vestal Cent. Sch. Dist., 785
N.Y.S.2d 549 (N.Y. App. Div. 2004).
DEFENSES: The defense that the
arrangement was only done to bring in money may well be both
counterproductive and ineffective: COUNTERPRODUCTIVE
because such a defense virtually acknowledges the wrongfulness and
health harm of providing the drinks by claiming that such unhealthy
action would not have been taken but for the payments; and INEFFECTIVE because it is unlikely
that doing anything which significantly endangers the health of even a
few children can ever be fully justified by crass financial
considerations. The traditional negligence defenses of comparative
negligence and assumption of risk would appear to be very limited and
possibly inapplicable to young children who can hardly be expected to
fully understand and appreciate the dangers of eating sugary soft
drinks, and/or to parents who can't effectively control what their
children drink within the confines of a school.
INTENTIONAL
TORTS: It could also be argued, in the alternative, that given
the well-known dangers of providing sugary soft drinks in schools, the
actions of the school board were intentional rather than merely
negligent in the sense that they knew with "substantial certainty" that
the decision would result in some health harm to at least some of the
children (even if that was not their purpose). For example, in an early
successful fat law suit, my law students argued that McDonald's had
committed the intentional tort of battery by merely failing to warn
customers that their french fries contained beef fat; i.e., that they
acted with the intent ("substantially certain knowledge" rather than
purpose) of causing customers to suffer a harmful or offensive bodily
contact by eating beef. Although originally ridiculed at "frivolous,"
McDonald's ultimately paid over $12 million to settle the law suit.
EFFECT ON IMMUNITY: One of the
consequences of bringing a cause of action based upon an intentional
tort is that it may abrogate the traditional defense of sovereign or
charitable immunity, See, e.g., Hardwicke v. Am. Boychoir Sch., 368
N.J. Super. 71, 75 (N.J. Super. Ct.
2004). It also opens the door to punitive damages.
OTHER DEFENSES: Since neither
negligence nor assumption of risk are defenses to an intentional tort,
the defendants would have to argue consent. But the legal effect of
consent by children to activities which can be harmful to them is
obviously very limited, particularly for young children. Moreover, for
any such consent to be effective, the children must have been fully
informed of the dangers -- something which schools can hardly claim is
true when they themselves are actively promoting the
sale of sodas to the students and profiting from it.
BREACH OF
FIDUCIARY DUTY: As an additional and apparently potentially very
powerful legal claim, it can be argued that school boards and their
members violated not only their duty to exercise ordinary care (as in
negligence), but their legal duty to exercise a much higher standard of
duty and care to the children and their parents in their role as
fiduciaries. The law imposes these much higher fiduciary duties where
there is a significant imbalance in knowledge and power between the
parties (e.g., doctor-patient, attorney-client, customer-banker, etc.),
and where, as a result, the weaker party justifiably relies on the more
knowledgeable party's guidance. Since exactly this relationship exists
between students (and their parents) and the school board, a strong
argument for the existence of this higher fiduciary duty can be made.
It will be further bolstered by the argument that the students in many
cases are a captive audience who, as a practical matter, cannot readily
obtain cold drinks during the school day except as provided by the
school itself. See, e.g., my threatening letter to the Seattle School
Board: http://banzhaf.net/docs/seattleltrs.html
BREACH
OF FIDUCIARY DUTY - SEATTLE: It may be important to note that
the "breach of fiduciary duty" argument was the basis of a law suit
which threatened to target the individual members of the Seattle School
Board if they did not substantially modify their Coke For Kickbacks
contract. Although only a threat was made, and no litigation actually
has to be commenced, the warning itself generated national as well as
world-wide publicity, support from the major area newspaper and from
attorneys, parents, and other groups. [SEE
LINKS BELOW] The result was a major change in the contract
terms, one remarkably similar to the American
Beverage Association's recent so-called voluntary policy [SEE BELOW].
IMMEDIATE
ACTION MAY BE REQUIRED: The initial law suits will be filed in
Massachusetts very shortly, and soon thereafter similar class action
law suits will be filed in a number of additional states. It therefore
would seem to be appropriate if not imperative that school boards and
their members take at least some preliminary actions at their earliest
convenience regarding their involvement and potential legal liability.
It is respectfully suggested that they, at the very least:
BE
KNOWLEDGEABLE: School board members should be fully aware of the
very serious health and medical dangers of the current and escalating
epidemic of obesity among children. Even more importantly, they should
be aware of the overwhelming evidence that having sugary soft drinks
available in schools contributes significantly (i.e., is a "substantial
factor") in causing these problems, including pediatric diabetes,
metabolic syndrome, etc. It is equally important to know that a growing
number of large as well as small school districts -- in some cases,
like California, including the entire state -- has discontinued
providing sugary soft drinks at schools, at that in many cases they
have done so with little loss of income by switching to healthier
beverages. Only by possessing such knowledge can school board members
hope to make intelligent and fair decisions as "reasonably prudent
persons" are required to do regarding this issue, and avoid arguments
by plaintiffs that they remained willfully ignorant or were negligent
in refusing to become informed. Ignorance of the law is no excuse, and
neither is ignorance of the facts upon which such vital health-related
decisions must be based.
BE PREPARED:
Rather than waiting for a call for comments, reaction, or underlying
facts from an administrator, reporter, politician, or angry parent once
a "Coke For Kickbacks" class action law suit has been filed in the
jurisdiction, and the risk that a hasty statement or a "no comment"
could have serious adverse consequences, it would be wise for school
board members, and school administrators and spokesman, to make sure
they have all the relevant facts [SEE ABOVE] and then begin to take
whatever steps may seem to be appropriate. These steps could range from
establishing a committee or other body to gather the facts and study
the issue, to scheduling a thorough review and even reconsideration of
the issue at the earliest possible opportunity. Decisions made even a
year ago probably should be reconsidered in the light of vastly changed
circumstances, including: new and more compelling scientific and
medical evidence, the growing number of school districts which has
stopped providing sugary soft drinks in schools, the growing number of
legislative measures aimed at this problem which have been introduced,
changes in public opinions as reflected in polls, etc. Considering all
that has happened recently, a statement by a school board that it
simply stands by a decision made years ago -- and is not even going to
reconsider it -- is not likely to be very smart litigation or public
relations strategy.
BE
PRO-ACTIVE: If, in light of all these changed circumstances, it
appears that an existing policy of providing sugary soft drinks in
schools may no longer be appropriate, it is suggested that schools
boards and their individual members be pro-active rather than passive;
in other words, that they take action rather than waiting for law
suits. They can request that their staffs or other governmental
resources help provide them with all the latest information upon which
to make a decision, and then actively consider what their options may
be. Existing Coke for Kickbacks contracts may have provisions providing
for early cancellation and/or at least modifications. Even if they do
not, bottlers eager to avoid litigation and/or adverse publicity may be
willing to re-negotiate a contract or to permit the vending machines to
be turned off during the school day, to substitute healthy beverages
for sugary soft drinks, etc. -- especially in light of the American
Beverage
Association's new so-called voluntary policy:
See, e.g.,http://www.ameribev.org/pressroom/Sept2005OverwhelmingSupport.asp
INDUSTRY ACTIONS WHICH MAY AFFECT YOU:
Many recent articles have described how the beverage industry is taking
active steps to protect themselves from these coming law suits -- in
part by trying to deflect the blame to others, including school board
and school board members. For example, Coca Cola has adopted a policy
renouncing and denouncing Coke For Kickbacks contracts in an obvious
effort to place the onus of these arrangements on small local bottling
companies and the school boards; see, e.g.: http://banzhaf.net/docs/cokeno
THE
AMERICAN BEVERAGE ASSOCIATION, after for so long denying that
soft drinks sold in schools played any significant role in causing
obesity, now has very substantially modified its position to impliedly
concede this connection. The new voluntary policy would require
limiting the access of students to vending machines during the school
day, providing for healthier drinks, etc. As the media is reporting,
this is another effort by the industry to deflect blame, and it will
make it easier to argue that the beverage industry is doing its part,
and that it is the
school boards which are primarily to blame.
In closing, while I am primarily a legal activist who, like my
colleagues, is very concerned about pediatric obesity and willing to
use legal action as a weapon against it, I also have a great deal of
respect and concern for school boards and their members who will very
soon find themselves in the middle of this major legal onslaught. I
hope, therefore, that they will take whatever actions seem to them to
be most appropriate to protect their interests and the interests of the
schools and the school children. This, at a minimum, includes becoming
fully informed about all the facts, reconsidering policies regarding
"pouring rights" contracts in the light of new facts and developments,
then taking whatever action may be appropriate, and being prepared for
the law suits before they are actually filed, Failing to take any steps
whatsoever is the worst course of action, and will only heighten the
perceptions that schools and school boards are part of the obesity
problem, rather than a part of the solution.
PLEASE FORWARD THIS EMAIL TO OTHERS WHO MIGHT BE INTERESTED OR AFFECTED.
LINKS RELATED TO SEATTLE LAW SCHOOL "COKE FOR KICKBACKS" CONTRACT:
CNN Commentary: http://banzhaf.net/docs/toobin.html
SEATTLE NEWSPAPER ARTICLE: http://seattlepi.nwsource.com/local/129155_coke02.html
SEATTLE NEWSPAPER ARTICLE: http://seattlepi.nwsource.com/local/128553_soda27.html
SEATTLE TIMES ARTICLE: http://archives.seattletimes.nwsource.com/cgi-bin/texis.cgi/web/vortex/display?slug=fatsuit02m&date=20030702&query=banzhaf
WASHINGTON TIMES ARTICLE: http://www.washtimes.com/business/20030626-102218-3717r.htm
EDITORIAL: http://seattlepi.nwsource.com/opinion/129007_colaed.html
ANOTHER EDITORIAL: http://seattlepi.nwsource.com/opinion/129007_colaed.html
PROFESSOR JOHN F. BANZHAF III
Professor of Public Interest Law
George Washington University Law School
FAMRI Dr. William Cahan Distinguished Professor
2000 H Street, NW, Washington, DC 20006, USA
(202) 659-4312
http://banzhaf.net http://banzhaf.net/obesitylinks