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Lawyers ready suit against soft drinks

Sales in schools targeted by group

WASHINGTON -- The fight against sugary soft drinks is beginning to foam over.

A coalition of lawyers who have actively and successfully sued tobacco companies says it is close to filing a class-action lawsuit against soft-drink makers for selling sugared sodas in schools. The lawyers, who have been trying to develop a case against the soft-drink makers for more than two years, say a lawsuit could be filed within the next few weeks, probably in Massachusetts, which has one of the nation's most plaintiff-friendly consumer-protection laws.

As reports of the pending lawsuit proliferate, the beverage industry is shoring up its defenses. The American Beverage Association released a study yesterday that showed a 24 percent drop in purchases of full-calorie carbonated soft drinks at schools from 2002 to 2004. In 2004, the study showed, high-school students drank the equivalent of one 12-ounce can of such soda a week, while younger students drank less.

The reduction in soft-drink consumption in schools ''started long before there were trial lawyers looking for an industry to sue," said Susan Neely, president of the beverage association. ''Litigation isn't the answer to a complex social problem like childhood obesity," she added.

The beverage association's study showing the decline ''reflects the overall trend of the industry," said John Sicher, editor and publisher of Beverage Digest. ''Carbonated soft drinks are down across the board."

Leading the litigation effort is Richard Daynard, an associate dean at Northeastern University School of Law in Boston, who is also president of the Tobacco Control Resource Center and chairman of the Tobacco Products Liability Project, both of which have provided legal support to lawyers suing tobacco companies. Daynard was involved in many of the state cases against the tobacco firms that led to the landmark $246 billion settlement in 1998.

Joining Daynard is Stephen Sheller, a Philadelphia lawyer who came up with the legal theory that tobacco firms deceived consumers into thinking their low-tar and low-nicotine cigarettes were safer to smoke than regular cigarettes. That theory helped lead to a $10 billion consumer-fraud verdict against Philip Morris USA in an Illinois state court two years ago. That verdict is under appeal.

Also involved in the prospective lawsuit is the Center for Science in the Public Interest, a consumer advocacy group that has aggressively pressed for more detailed food labels and less fat and sodium in all kinds of food. Earlier this year, the group called for federally mandated health warnings similar to those on cigarettes.

''The idea is to get soda machines out of schools because they are clearly making a substantial contribution to the obesity epidemic," Daynard said yesterday in an interview. ''This is an unfair practice under state consumer-protection laws," he said.

The suit's legal basis will be tied to the concept of ''attractive nuisance: If somebody has something on his land like a swimming pool that he knows is attractive to kids and dangerous, then he has some obligation to keep the kids away from it," Daynard said. ''You want to keep kids away from dangerous objects, and a soda machine is demonstrated to be a dangerous object for kids."

Daynard said the challenge is finding the right set of parents to sign on as plaintiffs for the class-action case.

Victor Schwartz, a Washington lawyer who has advised companies on product-liability policies, said the case ''would require a radical modification of traditional liability laws with an expansion of statutory consumer-protection claims." However, he noted, Massachusetts is one of the few states in the country where plaintiffs do not have to demonstrate actual damage in a consumer-protection case -- just that a violation occurred.

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