So, this is a perfect example of the realities of this world and how state of the art can be distorted. The World Health Organization has indicated that processed foods, such as bacon, sausage and hot dogs are in the same category as smoking and asbestos in terms of their potential to cause cancer. The news reports that have come out in the last few days barely touch upon the science and medical aspects, yet here come the sound “bites” that processed food is deadly.
If this is really the new asbestos, can you just imagine the litigation twenty years from now. Can you identify that sausage patty by a brand name, trade name, and manufacturers name? Were you able to distinguish a Hebrew National hot dog from a Nathan’s hot dog based on taste alone? Did you read the warning on that package of bologna? (By the way, what exactly is bologna?) When did you first learn that bacon could cause your colon cancer? For those of us who litigate asbestos cases, you can see this train coming down the tracks when plaintiffs’ firms will start to troll for cases and develop liability experts who, twenty years from now, may argue that this WHO report placed manufacturers on notice that their products could cause cancer, yet they continued to sell it to the public. Should manufacturers now recall all processed meats and cease manufacturing them to avoid potential liability? Should insurers now start drafting bacon exclusions to insurance policies? Will we someday have the Beef Jerky Bankruptcy Trust? Is that really how science and state of the art in our legal system should work?
Stop the train and consider the following. The IARC Press Release states: “Processed meat was classified as carcinogenic to humans (Group 1), based on sufficient evidence in humans that the consumption of processed meat causes colorectal cancer.” IARC defines Group 1 as follows:
“This category is used when there is sufficient evidence of carcinogenicity in humans. In other words, there is convincing evidence that the agent causes cancer. The evaluation is usually based on epidemiological studies showing development of cancer in exposed humans. Agents can also be classified in Group 1 based on sufficient evidence of carcinogenicity in experimental animals supported by strong evidence in exposed humans that the agent has effects that are important for cancer development.”
Under this definition, alcoholic beverages and certain salted fish are Group 1 carcinogens along with processed meats, yet the media chose asbestos and smoking as the comparison. The interesting aspect of the press release is that it lacks any meaningful detail at this point. What dose increases the threat? Are some processed foods more dangerous than others? Are there other contributing factors? Were these epidemiology or animal studies? Are there contrary studies? These are important questions that need to be carefully considered before jumping to conclusions.
In asbestos litigation, plaintiffs’ experts point to early asbestos studies then — with the benefit of hindsight — expand their significance to argue that all asbestos was dangerous decades before the true science had actually developed. Will we see the same type of back filled science if this WHO pronouncement someday evolves into a better understanding of how processed foods can lead to injury? Who knows? In the meantime, manufacturers of processed meats should be contemplating warnings such as “The WHO has reported that that there is sufficient evidence that certain processed meats can cause colon cancer.”