Focus has intensified on ultra-processed foods. A US lawsuit alleges major food companies, including Nestlé USA, Mondelēz International and Kraft Heinz, are responsible for intentionally developing addictive UPFs and targeting them at children. This is leading to chronic diseases in consumers, the lawsuit claims.
If successful, the lawsuit, filed by Morgan & Morgan in the Philadelphia Court of Common Pleas, could lead to follow-on claims or class actions citing the same harms, suggests Katrina Anderson, principal associate at law firm Mills & Reeve.
However, European and US food labelling and advertising laws are different, she explains. Individuals or groups legally pursuing company malpractice in Europe are also less common than in the US
Can EU food companies face UPF lawsuits?
“In the UK and Europe, we have structured our enforcement regimes in a different way. Mainly enforcement is done by regulators. So, regulators act on behalf of consumers.”
This doesn’t mean that individual claims are not possible, but, Anderson points out, they are a lot less likely.
Following the ‘dieselgate’ scandal, in which German car manufacturer Volkswagen was revealed to have bypassed emissions tests mandated by the US Environmental Protection Agency (EPA), the EU announced law changes to shift power away from regulators.
The recent Representative Actions Directive, which came into force last year, aims to facilitate lawsuits by consumers against companies for harm to them. As of the end of 2024, not all member states have transposed the directive.
Regulators, suggests Anderson, are generally more interested in preventing harm than providing consumers compensation for said harm, and more interested in present actions than redressing past wrongs. The Representative Actions Directive, on the other hand, will help consumers not only to address wrongs in the past, but also to achieve compensation.
However, Anderson suggests, the EU does not want to create a US-style system and so while the directive may give consumers more power to file such cases, they must do so in partnership with a consumer organisation or public body. These organisations would handle much of the case on behalf of consumers.
“These organisations would be allowed to bring these representative actions on behalf of a class or a group of consumers,” she explains.
What defence do EU food companies have against UPF lawsuits?
Such representative groups can be pan-EU, so in theory, she points out, it could be of a similar size to a ‘class’ from a class action lawsuit in the US.
Nevertheless, “because of this need to have a body that fronts it, it means that you’ve got to have a somewhat reputable organisation who is willing to put their name to it, so it’s trying to prevent individuals who might bring quite spurious claims from doing that”.
The directive makes lawsuits by consumers more likely to happen than in the previous context of EU law. “It is not designed to make it easy, but it’s designed to make it easier,” Anderson states.
Many of the allegations in the Morgan & Morgan lawsuit, such as fraud and negligence, exist in EU law and in some form in the law of member states, Anderson explains. So in theory, similar lawsuits could be brought forward in the future.
However, there are other complexities involved. For example, ‘ultra-processed food’ does not have a legal definition in Europe, which could act as a barrier for future lawsuits. The most commonly accepted definition of ultra-processed food, which stems from the Nova classification, is not enshrined in EU law.
