Case against soft drinks nearly ready

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 news reports of the pending lawsuit proliferate, the beverage industry is shoring up its defenses. Thursday, the American Beverage Association released a study 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-schoolers drank the equivalent of one 12-ounce can of such soda a week, while younger students drank less.

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 attorneys suing tobacco companies.

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 -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, which 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 explicit 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 suit’s legal basis will be tied to the concept of “attractive nuisance,” said Daynard. “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 that while the legal theory is ready, the challenge is finding the right set of parents to sign on as plaintiffs for the class-action case. “It’s taking us longer than we expected,” he said.