Law 3010 Comments
Soft drinks and schools
CONSIDER the question whether it is appropriate to allow persons
to bring legal action against school boards, and possibly soft drinks
companies, to force them to remove soft drinks from schools. Two
questions are (a) Is there ever going to be a limit to such law suits;
and (b) Can’t people choose what is right and wrong for themselves.
With respect to (a), there are of course limits on who can sue. The
parties suing must establish that they have legal standing in the
matter, that is, that he or she (or it) has been injured by the action
of the defendant(s) or may be injured if the actions continue. Also,
if a law suit is frivolous or vexatious, the plaintiff may find himself
or herself stuck with a fine and liable to bear the legal costs of the
other party as well as his/her own. So not just anyone can sue
another just because he doesn’t like what the other person is doing
or saying. He must have a recognized legal interest in the matter.
Some may object to such law suits and this raises a valid question
of the public interest. Naturally, individual freedom is an important
social value and we might consider that each person is responsible
for his or her choices. No one forces a child to drink Coke or eat
food that contributes to obesity. Yet the law often treats children
differently from adults. When a child goes to school (even to a
post-secondary institution), the institution is in loco parentis. That
is, in matters affecting the child the school has a duty of reasonable
care not to cause the child injury. The standard of care goes
beyond that of the reasonable person to the standard of a prudent
parent. That is, extra care for the well being of the child must be
taken by the school and teachers.
As noted in the Oulette case (page 131 of the Yates textbook),
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even an occupier of premises must foresee consequences of a
child’s conduct or action that the occupier would not have to
foresee with respect to an adult. Children are viewed as more
vulnerable than adults to harm caused by the acts or omissions of
others.
So what about soft drinks sold in schools? Is there evidence that
such drinks contribute to obesity? If so, is obesity harmful to
children while they are children or in adulthood? Does a school
owe a duty of care to a child not to cause the child harm by its act
or omission with respect to the availability of soft drinks in the
school? Is there a reasonably foreseeable risk that some children
may become obese because of the easy access to such drinks and
the apparent tacit approval of the school?
If there is such a foreseeable risk, and some reasonable steps that
the school can take to prevent or alleviate the risk, is there an
“Anns” argument that, as a matter of public policy, the school
owes no duty of care to the children in such matters as access to
allegedly harmful soft drinks?
If there is a duty of care on the part of schools with respect to
children in such circumstances, is there a risk of harm to some
children arising from easy access to such soft drinks? If so, how
likely is it that the risk will materialize and how serious may the
consequences be if the risk does materialize? If there is a risk of
harm, is there anything the school can reasonably do to diminish
the risk of harm to the child? If yes, is such action too onerous for
the school in light of the measure of the risk? If it were too onerous
the school would not have to take action to avoid the risk.
If there is a risk to the children that outweighs the burden placed
on the school, can a causal link be established between the school’s
act of permitting (and arguably promoting) soft drinks in the
school and consequential damage to the children?
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If the plaintiff (for example an obese child) could establish these
arguments, what would be an appropriate remedy? Damages for
harm caused by the obesity? An injunction imposed by the court
requiring the school to remove the potentially harmful soft drinks?
Could a law suit be brought against a school board by a public
health authority (as in the case of tobacco) for costs incurred due to
the health problems created by obesity caused (at least in part) by
access to high sugar soft drinks? Could the schools prevent liability
by putting a disclaimer beside the machines? Would Coke or Pepsi
enter such a deal if the school had such a disclaimer?
With regard to the question of people choosing right and wrong for
themselves, clearly we want to avoid having decisions imposed on
us by others. Yet, most of our decisions are based on knowledge,
information and advice that we receive from others. As far as soft
drinks are concerned, we receive very little information from
manufacturers, retailers, schools, universities, restaurants as to the
contents and the health risks of consuming them. They are
enormously high in sugar content but we are never told this other
than in some article buried in a newspaper we never read.
The information gap can sometimes be bridged by a law suit –
such as with tobacco- where evidence can be brought in by experts
is made vividly available to the public by the media. Sometimes
interested parties can join in with the law suit by having amicus
curiae status (the right to testify but not receive any remedy from
the court) and advancing evidence through experts or individual
witnesses harmed in some way.
It is not clear to me that a law suit would be successful but the
threat of it might cause education boards in the USA and Canada to
consider negotiating settlements out of court, such as keeping soft
drinks out of elementary schools, posting health warnings in other
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schools and lobbying governments for sufficient funding that they
don’t need to build the basketball court on the funds donated by the
soft drinks company.
Do you have any thoughts on these matters? If so, let me have
them (as part of class participation) and I will post them on the
website (anonymously if you prefer).
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