Before More Cities Copy San Francisco’s Food Lawsuit, States Must Act

The seasons are changing, but some things never change — like trial lawyers hunting for new ways to profit however they can. For years, the organized plaintiffs’ bar has hit food manufacturers with frivolous lawsuits over “fake” flavoring, “slack fill” in chip bags, and other bogus claims, but now it is refining its strategy.

Late last year, the city of San Francisco sued ten of the country’s largest food manufacturers under the state’s public nuisance and unfair competition laws, in partnership with private law firms — including the firm behind the first ultra-processed foods casein Philadelphia.

This suit will determine whether a city can leverage public nuisance law to set national industry standards, and whether a legal theory that failed as a personal injury case can succeed in a local government’s hands. Other cities are watching. So should state legislatures, which need to put up guardrails before the trial bar exports this model nationwide.

Where did this model come from? Interestingly, a case that was unsuccessful. The 2024 Philadelphia ultra-processed foods lawsuit was thrown outafter failing to identify which of the 179 products listed in the complaint caused the plaintiff’s illness. In June, the same judge refused to let the lawyers refile the case.

However, repackaged as a government claim, that defect largely disappears: a public entity alleging public nuisance need not trace a particular product to a particular person, only injury to the public at large. That’s why the theory is so enticing.

It also makes the pitch easy for a city attorney to accept. The firm fronts the costs and takes a percentage of whatever comes back, so the filing looks free. But cities still absorb staff time, discovery burden, and any political fallout. If a recovery ever arrives, the firm takes its cut first. The U.S. has roughly 33,000 local governments, and each one is a prospect.

Every month the trial bar gets more to work with. Investigations of food and beverage companies have seen an “unprecedented surge,” according to defense counsel, with Texas alone probing cereal and candy makers over synthetic dyes; baby food manufacturers over heavy metals; and an industry-wide inquiry into products made with avocado oil. Each investigation yields documents and sworn testimony. Each new state law adds another definition of what constitutes an “ultra-processed food”: Arizona uses an 11-ingredient list, California defines the term functionally, Texas and Louisiana do not define it, and there is no formal federal definition.  

Localities weighing this approach should look at how these claims are faring. In March, the Maryland Supreme Court held that the state has never recognized a government’s ability to recover damages through public nuisance theory, and that dispensing lawful, heavily regulated products is not actionable. Three other state high courts — Oklahoma, Ohio, and Maine — have reached the question, and all three rejected the expansion.

The opioid litigation is the other lesson. More than 3,000 local governments filed claims, a handful of holdouts could stall resolution for everyone, and outside firms took their percentage of what was eventually recovered. Cities did not get faster relief; they got years of litigation.

And if a locality does prevail on a claim like this, the remedy does not stop at the city line. The San Francisco defendants arguedthat the complaint would have the court “overhauling the majority of the country’s food supply by judicial fiat.” Should a county courtroom write rules for 50 states?

Having to rely on correction by appellate courts is slow and arrives only after years of expense. Legislatures must settle the question outright by codifying public nuisance law and excluding claims based on the design, manufacture, marketing, or sale of lawful products, as Montana did in 2025. A similar bill passed Ohio’s House and has sat in the Senate for more than a year. Lawmakers should go one step further and require state to sign-off before a locality files these suits or hires outside contingency counsel to do so. Litigation filed on behalf of an entire state’s residents belongs to officials accountable to all of them.

The real question is whether broader public policy is made through a process with a public record and officials who are accountable for the outcome, or through whichever courthouse a private firm and a willing city decide to file in. States that draw the boundaries of public nuisance now will answer that themselves. States that wait will have it answered for them.

Sherman “Tiger” Joyce is president of the American Tort Reform Association.