Deceptive Marketing? How Food Companies Are Being Sued for UPF Tactics

Deceptive Marketing? How Food Companies Are Being Sued for UPF Tactics

The modern food landscape is dominated by ultra-processed foods (UPFs), engineered for maximum palatability and marketed aggressively. But is this marketing ethical? A growing number of lawsuits allege that food companies are engaging in deceptive practices, prioritizing profits over public health. In fact, San Francisco recently filed a first-of-its-kind lawsuit against major food manufacturers, claiming they knew their products were making people sick but continued to market them deceptively. This raises a critical question: Are food companies using deceptive marketing tactics when it comes to UPFs, and what are the legal implications?

What are Ultra-Processed Foods (UPFs)?

Ultra-processed foods are industrial formulations made from chemically manipulated, cheap ingredients with minimal whole food content. They often contain additives like flavors, colors, emulsifiers, and thickeners to enhance taste, texture, and shelf life. UPFs are designed to be hyperpalatable, combining calorie-dense ingredients like sugar and saturated fat in ways not found in nature. Examples include:

  • Sugary drinks
  • Packaged snacks (chips, cookies, candies)
  • Processed meats (hot dogs, sausages)
  • Ready-to-eat meals (frozen pizzas, TV dinners)
  • Breakfast cereals

These foods often dominate modern diets, with studies showing that UPFs account for a significant portion of daily calorie intake for adults in America.

The Rise of UPF Lawsuits: Following in Big Tobacco’s Footsteps?

The increasing consumption of UPFs is linked to a rise in chronic health conditions like obesity, type 2 diabetes, heart disease, and certain cancers. This has spurred a wave of litigation against UPF manufacturers, accusing them of misleading advertising and failing to adequately disclose health risks.

San Francisco’s lawsuit against food giants like Kraft Heinz, Coca-Cola, PepsiCo, and Nestle marks a turning point. The city alleges that these companies engaged in “unfair and deceptive acts” in marketing and selling their products, violating California’s Unfair Competition Law and public nuisance statute. The lawsuit seeks to:

  • Prohibit deceptive marketing practices
  • Require companies to correct or lessen the effects of their behavior
  • Provide monetary compensation to help local governments handle healthcare costs associated with UPF consumption

This legal action draws parallels to lawsuits against Big Tobacco in the 1990s, where states sought to recover healthcare costs associated with smoking-related illnesses. San Francisco City Attorney David Chiu noted that some of the same marketing tactics used to sell addictive cigarettes are now being used to sell unhealthy foods.

What Constitutes Deceptive Marketing?

The Federal Trade Commission (FTC) defines deceptive advertising as promotional practices that include false or misleading information about a product or service. An ad is deceptive if it contains a statement or omits information that is likely to mislead consumers acting reasonably under the circumstances and is important to a consumer’s decision to buy or use a product.

Common deceptive marketing tactics used by food companies may include:

  • False Nutrient Claims: Overstating nutritional benefits or making claims without credible evidence (e.g., “high in protein,” “supports heart health”).
  • Hiding Unhealthy Ingredients: Omitting or downplaying the presence of high levels of sugar, salt, or unhealthy fats.
  • Targeting Vulnerable Populations: Aggressively marketing unhealthy foods to children, low-income communities, and minorities.
  • Misleading Health Claims: Making grandiose health claims about a product without scientific backing.
  • “Health Halo” Marketing: Marketing unhealthy products as healthy by associating them with positive attributes like “natural” or “organic,” even if they are still high in processed ingredients.

The Legal Framework: FTC and State Laws

Several laws protect consumers from deceptive marketing practices.

  • Federal Trade Commission Act (FTCA): Prohibits “unfair or deceptive acts or practices” in commerce, including food labeling and advertising.
  • Food, Drug, and Cosmetic Act (FDCA): Regulates how food labels display ingredients, nutrition facts, and health-related statements.
  • State Unfair and Deceptive Acts and Practices (UDAP) laws: Provide consumers with additional avenues to sue over misleading food labeling and advertising.

To win a deceptive marketing lawsuit, plaintiffs typically need to show that:

  1. The statements in the advertising are untrue or misleading.
  2. The defendants knew or should have known that the statements were untrue or misleading.
  3. The deception is likely to affect consumers’ purchasing decisions.

The Impact on Children

Children are particularly vulnerable to deceptive food marketing tactics. Studies show that marketing unhealthy foods to children has a negative effect on their health and contributes to the rise in childhood obesity. UPFs are often marketed to children using bright colors, cartoon characters, and games/puzzles to capture their attention.

The FTC has been working with government agencies, consumer advocates, and industry to combat childhood obesity. However, some argue that the agency needs to take a more aggressive approach to regulating food marketing to children, particularly during children’s programming hours.

What Can Be Done?

Addressing deceptive marketing of UPFs requires a multi-faceted approach:

  • Increased Regulation: Stricter regulations on food labeling and advertising, particularly those targeting children.
  • Industry Self-Regulation: Encouraging food companies to adopt responsible marketing practices and reduce the amount of sugar, salt, and unhealthy fats in their products.
  • Consumer Education: Educating consumers about the health risks of UPFs and how to identify deceptive marketing tactics.
  • Legal Action: Holding food companies accountable for deceptive marketing practices through lawsuits and other legal means.

Advice

If you believe you’ve been a victim of deceptive marketing by a food company, here are some steps you can take:

  1. Document Everything: Keep records of the advertisements, product labels, and any health issues you believe are related to the product.
  2. Consult with an Attorney: A consumer protection attorney can evaluate your case and advise you on your legal options.
  3. File a Complaint: You can file a complaint with the FTC or your state’s Attorney General’s office.
  4. Join a Class Action Lawsuit: If others have been harmed by the same deceptive marketing practices, you may be able to join a class action lawsuit.

Conclusion

The lawsuits against food companies for deceptive marketing of UPFs represent a growing awareness of the impact of these products on public health. By holding companies accountable for their marketing practices, we can create a more transparent and ethical food system that prioritizes the health and well-being of consumers. Contact our firm today for a consultation.