Which lessons can we draw from the collective class actions against the tobacco companies in Quebec and what are their potential impacts for sugary drinks companies?

(This post constitutes a translation of the original post: http://foodlaw.ca/conference-blog/2017/10/12/quelles-leons-tirer-des-actions-collectives-contre-les-compagnies-de-tabac-au-qubec-et-quels-impacts-pour-les-compagnies-de-boissons-sucres-)

On May 27th 2015, following one of the longest trials in Canadian history, thousands of people won their battle in two class actions [Blais and Létourneau] against three Canadian tobacco companies: Imperial Tobacco, Rothmans, Benson & Hedges and JTI-Macdonald. The Superior Court of Quebec ruled that the three defendants committed certain wrongful acts, including false or misleading representations. The judge hereby declared that punitive and moral damages of more than $15 billion shall be awarded and distributed amongst nearly 100 000 smokers or ex-smokers suffering from emphysema, lung cancer or throat cancer in the province of Quebec. At the end of November 2016, more than a year later, five judges from the Court of Appeal of Quebec heard the three tobacco companies, who were trying to invalidate the previous judgments of the Superior Court, during six days. We are still currently waiting for the results of the appeal. Without digging into further constitutional details of the class actions, this post aims to compare the effects and implications of sugar and tobacco.

Nowadays, a lot of attention is given to a product massively consumed by a large number of people in our society: sugar. These little white crystals are in fact the target of numerous critiques and measures aiming at a decrease in its consumption. Many cities and countries across the globe have currently implemented or strongly considered implementing a tax on sugary drinks with the clear and direct intent to foster a reduction on the quantity bought and drank by their population.

We now know that tobacco has also been targeted by the public opinion as its effects were known to be detrimental, and that special taxes were imposed on tobacco products before class actions were filed. Hence, would it be possible that sugar be the next tobacco? Is it likely that, sooner than later, companies producing and selling sugary drinks will be involved in massive civil litigations which will last for years?

Different health problems are associated with cigarette consumption, one of the most important ones being lung cancer. In fact, there isn’t any positive impact on health associated with cigarette consumption and there isn’t any level or amount consumed deemed to be safe (McMenamin and Tiglio, 2006). However, sugar is different from tobacco on many points. Advocacy groups in favour of food considered to be detrimental for health loudly claim that every food consumed within reasonable quantities can be part of a healthy diet and a balanced lifestyle, and that conversely, excessive consumption of any food would result in health issues (McMenamin and Tiglio, 2006, at p. 457).

Further, tobacco is different from sugar in the way the body reacts to its consumption. Someone who eats too much sugar will almost instantly experience the consequences—indigestion for example. After some time, numbers on the scale will start increasing, pants will get tighter; different cues that the consumer can possibly correct the situation—taking into consideration that social justice issues may interfere with the ability that one has to change their eating habits—by eating differently and exercising regularly. On the other hand, tobacco affects health in insidious ways: lung cancer or emphysema can take years to develop, and their irreparable effects are often detected when it is already too late (McMenamin and Tiglio, 2006, p. 457).

On the other hand, if associating an individual's health problems, like obesity, to a unique cause is complex and arduous, it is even harder to prove that this condition is directly linked to one food product, like sugary drinks. In the framework of a collective class action, we are faced with an additional difficulty: that of finding an identifiable class. A class action will be rejected if each member of the class has to be analysed individually as to establish a causal link between a behaviour or a product and the alleged damages (Khoury, 2016, para. 7). In this case, we can anticipate that individualized analyses will be necessary to demonstrate the link between the consumption of a particular food product and the resulting physical condition.

Also, it is crucial to call to mind the use of the Tobacco-Related Damages and Health Care Costs Recovery Act for the collective class actions in Quebec. As its name evokes, this act only relates to tobacco-related damages, and not any other substance; there is no act, at least for the time being, on the recovery of sugar-related health care costs and damages. This particular Act allowed the class action claimants to testify whilst submitting in proof an epidemiologist’s testimony. It would be perilous to blindly apply the Court’s conclusions in this case to other non-tobacco related public health disputes.

Despite these numerous differences, a prosecution has been filed in the United States against Coca-Cola and the American Beverage Association. The plaintiffs claim that the defendants’ advertising practices have deceived the public as to attempt to conceal the connections between the consumption of sugary drinks and health conditions like obesity, type 2 diabetes and cardiovascular diseases by blaming, rather, a lack of physical activity.

In Canada, many authors consider that Canadian courts seem increasingly ready to address and resolve disputes relating to issues of public interest in an innovative manner (Jones, 2015, p. 12). Furthermore, if courts adopt a collectivist conception of class actions (Khoury, 2016, para. 30), it may be possible to observe a progressive acceptance of expert evidence, even in the absence of claimants’ individual testimonies.

It will surely be interesting to witness the legal and judicial developments related to public health as concerns our consumption of damaging food products in the years to come.

References:

Craig Jones, Theory of Class Actions (Irwin Law, 2015).

Lara Khoury, “Le futur des actions collectives comme outils de réduction des risques posés à la santé publique : leçons québécoises en matière de tabagisme”, (2016) 47 :2 Ottawa Law Review 391.

Joseph P McMenamin et Andrea D Tiglio, “Not the Next Tobacco: Defenses to Obesity Claims” (2006) 61 Food and Drug Law Journal 445.

Josiane Rioux Collin is completing her Master's Degree and is a Lecturer at the Faculty of Law of the University of Sherbrooke.