Coke Next Item on Agenda for Anti-Tobacco Lawyers

According to articles in the Washington Post and Beverage World Online, a coalition of lawyers that was previously successful in suing Big Tobacco is now close to filing a class-action lawsuit against soft drink companies for selling sodas in schools.

The lawsuit will apparently rely on a number of potential legal arguments:

• "Part of the strategy is to claim that soft drink companies use caffeine, a mildly addictive substance, to hook children on a product that is dangerous because of its empty calories."
• Attorneys may also argue "that school vending machines are a nuisance because they give kids access to something that is both tempting and dangerous, the same argument that would be used in the case of a swimming pool without a fence."
• Another potential argument is that "it is unfair to offer kids soft drinks in an environment where parents have no control."
• And yet another potential argument is deceptive advertising - that "by putting vending machines in schools, companies are implicitly telling kids the drinks are good for them."

According to one of the lawyers involved in the case, placing soft drink machines in schools is "less egregious, but it is a little like having a cigarette machine in a school." Further, he argues: "If somebody has something on his land like a swimming pool that he knows is attractive to kids and dangerous, then he has some obligation to keep the kids away from it. You want to keep kids away from dangerous objects, and a soda machine is demonstrated to be a dangerous object for kids."

Another of the lawyers was said to suggest that "selling drinks in schools can hook kids on something that can eventually lead to diabetes." He was quoted as stating that the combination of caffeine and sugar in soft drinks is a "toxic cocktail that children cannot easily refuse."

The Rest of the Story

Not only do I fail to see any legal merit in this litigation, but I think it makes a mockery of public health in general, and of tobacco litigation in particular.

By putting Marlboro on the same plane as Coca-Cola, these attorneys are I think undermining the very litigation that they themselves helped establish.

The argument that caffeine is addictive and is used to hook children on soft drinks I think undermines the basic argument that is critical to almost every tobacco case out there: that nicotine is a highly addictive drug and that cigarette companies have intentionally manipulated levels of nicotine in order to addict their customers, but without their customers' knowledge.

In fact, this is an argument that cigarette company lawyers have repeatedly made in tobacco trials in an attempt to convince juries that nicotine is not addictive in any serious sense - it is only mildly addictive in the same way that soda or chocolate are addictive.

I vehemently disagree with the contention that caffeine has anything like the addictive power of nicotine, and I think there is simply no comparison. I spent years of my career trying to help patients overcome a nicotine addiction, but not once did I have a patient whose problem was not being able to stop drinking Coca-Cola. I've had a lot of patients who were chain smokers, but none who were "chain Cokers."

To suggest that soft drinks are a "toxic cocktail" is not only grossly inaccurate, but I think it does an injustice to legitimate public health attempts to protect the public from toxic substances - like tobacco. If the public is led to believe that any product that may possibly, if consumed in gross excess, lead to health problems is "toxic," then the public's appreciation of the very real risks of something like tobacco use will be greatly undermined. Eventually, I think the public is just going to get sick of listening to all this banter, and they will just give up.

Public health practitioners need to be consistent in their messages to the public, and telling the public that soft drinks are a toxic cocktail is simply not a message that is consistent with what I think the public health message should be.

In fact, soft drinks are not toxic. They are not even dangerous. It is only the over-consumption of soft drinks, combined with the under-consumption of other foods, that is a health risk. There is, after all, nothing inherently dangerous in drinking a Coke or a Pepsi. To call a soda machine a "dangerous object" makes a farce out of public health, in my opinion.

The legal theories make even less sense. If having a Coke machine in a school is akin to having a swimming pool on one's property without a fence, then doesn't that mean that any Coke machine in a public location must have a fence around it, or some other mechanism to keep kids out? Aren't store owners who sell Coke to kids liable for damages if Coke is really that dangerous and toxic a cocktail? And what about serving Coke to kids at parties? Shouldn't we have lawsuits against parents who serve Coke to their kids' friends without the consent of those kids' parents? After all, it may be less egregious than serving alcohol to kids, but it is still egregious, is it not?

And why leave the coffee makers out of this? Coffee often has a lot more caffeine in it than soda. Shouldn't Maxwell House be on the witness stand for selling caffeine-laden products to kids without requiring identification to prove that the kids were adults and capable of making a decision to ingest a toxic and dangerous substance on their own?

And what about chocolate makers? Chocolate is laden with caffeine, as many nursing mothers know after their first experience eating chocolate as an evening snack and then wondering why their baby is having trouble sleeping that night. Doesn't Hershey deserve a place on the defendant's bench along with Coke, Pepsi, and Maxwell House?

If it is unfair to offer kids soft drinks in an environment where parents have no control, then isn't it also unfair for teachers to give out chocolates to school children on Valentine's Day or other special occasions? Perhaps these irresponsible teachers should be marched into the courtroom for contributing to the addiction of kids to caffeine, the over-consumption of sugar, and raising the risk of children developing diabetes and obesity.

And don't even get me started on the high-fat foods that school cafeterias tend to serve: pizza, sloppy Joe's, meatloaf, Salisbury steak. Isn't that an injustice? Shouldn't the companies which manufacture those products be paraded into the courtroom as well for inflicting their toxic products on kids?

Don't get me wrong - I think childhood obesity is a major public health problem, food manufacturers and fast food companies and their advertising play a major role, and society needs to find solutions that involve these corporations - some of these solutions may involve legislation. But taking these companies to court is not only frivolous, but it makes a mockery of what public health is supposed to be about.

Ultimately, I think it undermines the public health practice of tobacco control to insist that Coke stand behind Marlboro in the line for plaintiffs lawyers to try to extract monetary gain. A Coke is not a Marlboro, and we shouldn't pretend that it is.