RFK Jr.’s ultra-processed foods definition gives trial lawyers a leg up

The scourge of “ultra-processed foods” is a headline topic and concern in MAHA America, but it suffers from a simple deficiency: no one knows how to define them.

Foods containing processed seed oils are at the top of HHS Secretary Robert F. Kennedy Jr.’s enemies list. Processed foods with chemical additives, he says, are “driving our chronic disease epidemic”. At last count, the government says that could include up to 70% of all packaged grocery items.

But such a broad definition of ultra-processed also captures various workout supplements and protein additives that now make up an increasing percentage of supermarket shelf offerings. Are fitness influencers, including noted workout-in-jeans enthusiast RFK, pushing UPFs on their followers?

In August, the FDA submitted a proposed definition of UPFs: what food labels should say about them, and what manufacturers should be required to claim or disclose, but that has still not been released to the public.

But trial attorneys, however, are paying attention. One high-profile lawsuit has targeted the makers of Froot Loops, Oreos, and Coca-Cola for allegedly contributing to the obesity crisis by selling “ultra-processed foods,” using a broad definition that would mean any food with chemical additives. Judges have sent that case back to state courts until a federal definition is found.

Another case in Philadelphia against Heinz Ketchup was dismissed for a similar reason. Could RFK’s push to define UPFs bail them out and ignite a lawsuit race that will end up costing consumers more at the grocery store?

This matters because trial attorneys are eager to sue food manufacturers, and a broad federal definition would give them the latitude they need. RFK’s former injury law firm, Morgan & Morgan, is one of the main legal teams hired by San Francisco to try its case, and it also led on the case in Philadelphia. It has pledged to continue on.

RFK has claimed he’ll only want foodmakers to make changes to their formulas voluntarily. But if federal health authorities, whom RFK oversees, are able to deliver a legal definition on ultra-processed foods that strays beyond scientific consensus, they’ll be able to give a boost to trial attorneys in the courts and impose massive costs on food production going forward.

That will empower juries in civil trials to decide on the future of food rules, rather than a democratic process followed by Congress or even our regulatory agencies. That spells poor results for Americans across the country already facing higher food costs and an affordability crisis.

Efficiencies in food processing have overwhelmingly made food more affordable, accessible, and available to consumers. The increased options in frozen vegetables, canned foods, and fortified meats have been a boon to consumers, as have the options in infant formula for new mothers. All of these, according to the latest proposals, would be classified as “ultra-processed.”

There are plenty of questions to ask about obesity rates, physical activity, and how diets impact our health. But the market delivers choice at every corner shop and grocery store in the country to solve this for us. Consumers are empowered to make their own decisions, but only because they can afford to do so.

Handing the future of food affordability to lawyers intent on suing food companies won’t make us healthier and it won’t make our food any cheaper.