San Francisco UPF Lawsuit: Blog #4: The 4 Hurdles to Prove
Now that we’ve established that the San Francisco lawsuit is a Public Nuisance case – the same “blueprint” that brought down Big Tobacco – the next question is…
What Does the City Have to Prove in Court to Win the UPF Case?
To win a public nuisance case in California, you don’t need a single “victim” with a perfect medical history. Instead, the city has to prove four major points. These aren’t just legal hurdles; they are the exact same pressure points that broke the tobacco industry thirty years ago.
1. Engineering Addiction: The Proof of Intentional Design
The first thing San Francisco must prove is that the “condition” (the chronic disease epidemic) was created by the defendants’ conduct. In the Tobacco Wars, the “smoking gun” was the discovery that companies weren’t just selling leaves; they were engineering nicotine delivery. Memos showed they used ammonia to “spike” cigarettes, ensuring nicotine hit the brain faster and harder.
- The SF Case: The city is arguing that “addictiveness is a feature, not a bug.” They are pointing to the Bliss Point – the hyper-precise engineering of salt, sugar, and fat designed to override the human “satiety” signal. The Bliss Point was pioneered in the late 1960s by Harvard scientist Howard Moskowitz and perfected throughout the 1970s. By the 1980s, it was the industry’s standard roadmap for making food addictive. The proof isn’t a secret memo this time; it’s the chemical reality of emulsifiers and flavor enhancers that make “passive overconsumption” inevitable.
2. Targeting the Vulnerable: The “Replacement Smoker” Strategy
To prove a nuisance is “unreasonable,” you often have to show that the industry targeted people who couldn’t protect themselves. Big Tobacco’s internal documents famously discussed “replacement smokers” – specifically targeting teenagers to ensure the business survived as older smokers died off.
- The SF Case: San Francisco is alleging a near-identical playbook. The suit claims these 10 giants specifically engineered products to be “cheap, colorful, and flavorful” to lure children. The industry has been devastatingly successful: U.S. youth obesity rates have increased four-fold in the last 40 years. Furthermore, the city argues the industry disproportionately targeted Black and Latino communities—groups that now bear the heaviest burden of chronic disease. By proving the industry specifically targeted those with the least ability to “choose” otherwise, the “Personal Responsibility” defense begins to crumble.
3. The Suppression of Science: Creating “Doubt” as a Product
A key element of public nuisance is showing that the industry interfered with the public’s right to be informed. Big Tobacco funded the “Council for Tobacco Research” for decades, not to find the truth, but to manufacture “doubt” and counter independent studies linking smoking to cancer.
- The SF Case: The city is taking aim at “deceptive marketing” and the suppression of the true nature of Ultra-Processed Foods (UPFs). They argue that by breaking down whole foods into chemical components and reassembling them with additives, the industry created products the human body doesn’t recognize, while simultaneously marketing them as “natural” or “healthy.” The “doubt” here is the industry’s insistence that “a calorie is just a calorie,” regardless of whether it comes from an apple or a neon-colored fruit snack. The suit alleges the industry is full of scientists and entities paid to protect the bottom line at the expense of public truth.
4. The Knowledge: They Knew the Harm and Did It Anyway
Perhaps the most damning thing a city can prove is knowledge. In the 90s, discovery revealed that tobacco CEOs knew nicotine was addictive as early as the 1960s, even as they testified before Congress that it wasn’t.
- The SF Case: San Francisco is arguing that these food giants – many of which were actually owned by tobacco companies like Philip Morris and R.J. Reynolds for decades – imported the tobacco “knowledge base” directly into the food lab. They didn’t just accidentally make food addictive; they used the same scientists and the same marketing firms to ensure consumers couldn’t stop eating. But even without the tobacco connection, the UPF industry’s addiction science has been hiding in plain sight for decades. Unlike tobacco, where the “knowledge” was hidden in vaults, the industry’s own research into hyper-palatability has been their primary selling point to shareholders. The knowledge of harm is already proven.
The cards are stacked. For forty years, the food industry has known exactly what they were doing to human metabolism. This won’t be a case of if the industry is responsible, it’s going to be a case of who in the industry is. Are the CPG manufacturers alone in this, or were the retailers who prioritize shelf-space for the most addictive products also a party to this epidemic?
WISEcode: Dedicated to Food Transparency
At WISEcode, we operate free from corporate influence to provide the tools needed to navigate this crisis. We are working diligently to solve the chronic disease caused by the UPF crisis by bringing knowledge to all through total food transparency.
We already offer a comprehensive suite of UPF tools for consumers, CPGs, and Retailers to identify and clean up their product offerings. The food industry might not be able to turn back the clock on the damage already done, but they can certainly clean up their act today. It might help with their ultimate liability, but more importantly, if they care about human health, it might be the right thing to do.