The next battlefield of mass tort litigation is taking shape – and this time, it’s aimed at America’s household pantries and bathroom cabinets. The safety of fluoride and artificial food dyes, long a subject of scientific debate, are quickly becoming legal flashpoints and driving headlines.
Earlier this month, Texas Attorney General Ken Paxton fired the opening salvo, announcing two high-profile consumer protection investigations targeting familiar household items that could easily trigger a national flood of lawsuits: fluoride in toothpaste and petroleum-based food dyes in processed snacks.
The allegations – that companies deceptively marketed fluoride-containing toothpaste as “safe” for children without disclosing potential health risks and misleadingly advertised ultra-processed foods as “healthy” – currently seem narrow and targeted in scope. Whether these fluoride and food dye claims have merit remains to be seen, however, without preventative measures we could be on the verge of witnessing a snowball effect of broader mass tort actions, both within Texas as well as in localities across the country.
The pattern is well-established. First, a few high-profile investigations catch the public eye. Soon after, law firms specializing in contingency-fee mass torts begin recruiting local governments to join a fast-growing line of plaintiffs seeking jackpots. What starts as a measured probe escalates into an all-out legal assault – uncoordinated, duplicative, and driven as much by financial opportunity as by principle.
Flashback to the opioid crisis. During the opioid litigation wave, over 3,000 lawsuits were filed by cities, counties, and states across the country. Many were based on the same theories and facts yet pursued in isolation. State and federal dockets were overwhelmed. Judges struggled to manage conflicting schedules and duplicative discovery requests. Meanwhile, the underlying public health crisis demanded swift and coordinated action. Instead, victims waited years while litigation dragged out in courts and competing lawsuits with different objectives curbed efforts to reach cohesive national or multistate settlements.
These legal entanglements weren’t the result of too much justice being pursued, rather the chaos was the product of compounding locality litigation.
The proliferation of contingency fee arrangements between private law firms and local governments is at the heart of this disarray. These law firms pitch their services as no-risk – offering to pursue large corporate targets in exchange for a share of any eventual settlement. To cash-strapped municipalities, it can look like a win-win. Unfortunately, the broader consequences tell a different story.
This model incentivizes speed and volume over substance. Localities are pressured to file quickly – regardless of whether the facts are fully known or if science is fully vetted. Complaints are often filed with minimal investigation, built from boilerplate templates rather than unique circumstances. Because these lawsuits often pop up across multiple jurisdictions, they create a fractured legal landscape where coordination becomes nearly impossible.
Public interest becomes a talking point, not a guiding principle. These cases are frequently driven less by the facts at hand and more by inflammatory headlines and political pressure. And because the firms behind them are paid only if they win or settle, their incentive is not always to resolve matters efficiently or equitably – but to extract the highest possible payout.
The concern lies with the process by which these types of cases have been litigated. There is a clear difference between a focused, strategic use of public authority and a scattered rush to sue from every city hall and county boardroom in the country.
There is a better approach – one that prioritizes order, legitimacy, and results for victims: mass tort actions with statewide impact should be led exclusively by state attorneys general when appropriate.
In many states, attorneys general possess the constitutional mandate but also the institutional capacity to manage large-scale litigation, however solidifying this power through legislation would go a long way to ensuring this is standardized. Their offices are staffed by career public servants trained in consumer protection and public health law which means that contingency fee arrangements with outside counsel could possibly be avoided altogether. When attorneys general lead, litigation efforts can be coordinated. Settlements can be structured for maximum public benefit, and courts can operate with clarity rather than congestion.
There are 50 state attorneys general in this country. There are tens of thousands of local government entities. The math alone makes the case for centralization and consolidation. Trying to impose ethics and strategy across a patchwork of thousands of lawsuits is a logistical nightmare. Keeping that responsibility with attorneys general, where oversight and transparency can be maintained, is the best path to fair and effective resolution.
Whether the claims about fluoride or food dyes turn into litigation remains to be seen. But the legal response they trigger is almost inevitable given the precedent that has been set when investigations are pursued. History teaches us the best lessons – and we must have the foresight to manage this new legal battlefield with integrity – or we’ll allow another uncontrolled legal surge to unfold.
We cannot afford another flood of lawsuits that overwhelms the system, delays justice, and turns public health into a commercial opportunity. What we need is a unified front, disciplined leadership, and a legal strategy rooted in the public good – not private gain.
Original article online at: https://www.thecentersquare.com/opinion/article_2db27806-f85e-4065-bb9c-7322599d65ef.html