A Second Bite at the (Candied) Apple: The Latest Litigation Threat Targeting UPFs

On December 2, 2025, the San Francisco City Attorney, acting on behalf of the People of the State of California, filed a first-of-its-kind lawsuit in California state court against major food companies, alleging they have long known of the adverse health effects caused by ultra-processed foods (UPFs).¹ This type of case — brought by a government actor — poses a far greater risk to food companies than personal injury litigation, which requires the plaintiffs to show that a particular product specifically caused their claimed injury. Government cases, by contrast, can proceed without specific causation showings and carry the potential for enormous per-violation penalties. UPFs in particular are an increasingly attractive target for the plaintiffs’ bar, as both the federal government and state legislatures are targeting unhealthy foods, and as activist states and cities view consumer protection litigation as a mechanism to extract large settlements from corporate defendants. The filing of Kraft Heinz marks “a rare issue on which the liberal leaders in San Francisco City Hall are fully aligned with the Trump administration, which has targeted UPF as part of its Make America Healthy Again mantra.”²

Given that the San Francisco case may be the harbinger for a wave of UPF litigation brought by cities and states, this Advisory analyzes the similarities and differences between personal injury and government cases and takes a deeper dive into the particular risks that the latter poses.

Martinez: The First Personal Injury Case

The first UPF lawsuit targeting major food companies, Martinez v. Kraft Heinz, et al., is a personal injury suit pending in the Eastern District of Pennsylvania. Martinez alleges that the defendants implemented addiction science techniques and predatory marketing campaigns, and concealed health risks from consumers, to ensure that UPF products dominate the marketplace. Martinez asserts that, as a result, he developed type 2 diabetes and non-alcoholic fatty liver disease at age 16.

The Martinez case was dismissed in August 2025 because the complaint failed to allege specific causation, including how often Martinez consumed defendants’ products, what amounts he consumed and when, and the specific products he consumed. Martinez filed a motion to amend his complaint in late November 2025, which is pending.

Kraft Heinz: The First Government Case

Nearly a year after Martinez, the City of San Francisco filed the first UPF lawsuit brought by a government actor. The complaint alleges that the defendants have engaged in deliberate efforts to make UPFs addictive, minimized or omitted the dangers of UPFs, and targeted vulnerable consumer populations, and asserts violations of California’s Unfair Competition Law (UCL) and public nuisance.

Notwithstanding the nominally different legal theories, both Kraft Heinz and Martinez allege fraud/misrepresentations and resemble each other in other important aspects. As we often see in significant product liability litigations, the same plaintiffs’ lawyers are involved in both suits. The law firm Morgan & Morgan P.A., which is counsel for the plaintiff in Martinez, also represents the City of San Francisco in Kraft Heinz. Both complaints rely heavily on the tobacco industry’s ties to the food industry beginning in the early 1960s to weave a story that food companies followed the “Big Tobacco Playbook,” for example, through aggressive marketing to children and biochemical and biobehavioral research to enhance addictiveness. Further, both cases argue that UPFs are addictive under the same criteria used by the U.S. Surgeon General for tobacco, cite largely the same scientific literature, and use the same broad definition of UPFs as “industrially produced edible substances that are imitations of food,” assembled from fractionated ingredients and additives via industrial processes, with long ingredient lists. Finally, both devote large sections to marketing practices targeting children (and, in Kraft Heinz, Black and Latine/x communities).

The Growing Litigation Threat

Despite the similarities between Martinez and Kraft Heinz, cases brought by states, cities, and municipalities pose a far greater risk to food companies than personal injury cases due to a number of factors.

First, government plaintiffs need not show specific causation, which was the primary shortcoming that the court found in granting the motion to dismiss in Martinez. Instead, merely showing general causation — that consumption of UPFs can contribute to negative health consequences — is likely sufficient.

Second, under many states’ consumer protection laws, including California’s UCL, government plaintiffs do not need to establish any actual harm suffered or the materiality of the fraudulent claims or omissions. All that the government needs to show is that the claims were misleading in that they would deceive a reasonable consumer.

Third, government cases can amass huge penalties based on per-violation civil penalties and the possibility of doubled or trebled damages. Under California’s UCL, for example, per-violation penalties can reach up to $2,500. This can quickly amount to hundreds of millions in penalties for products with significant sales, if every sale of a product is deemed a violation.

Finally, outside counsel frequently bring cases on behalf of government actors, as in Kraft Heinz, on a contingency fee basis. In doing so, outside counsel acts with the imprimatur of the state. And there is no downside to governments joining the litigation, as it comes with no cost to themselves.

The Changing Legal Framework

State legislation targeting UPFs, food ingredients, or additives may encourage additional UPF litigation. Just months before Kraft Heinz was filed, Governor Newsom signed California A.B. 1264 into law, which provides a statutory definition of UPFs and requires the removal of UPFs from school meals.³ Kraft Heinz expressly cites California A.B. 1264, noting its consistency with the NOVA Classification System that the plaintiff in Martinez used to establish a broad definition of UPF products.

There are an increasing number of similar statutes being passed or proposed, including:

• An Arizona law sets forth a definition of UPF and prohibits public schools from selling UPFs on campus (H.B. 2164).⁴
• A West Virginia law bans certain food additives (H.B. 2354).
• Louisiana and Texas have passed laws (S.B. 14 and S.B. 25, respectively) requiring on-package warnings for certain ingredients.
• Wisconsin has proposed legislation (A.B. 550) like that of Louisiana and Texas requiring on-package warnings.
• Florida proposed a bill (A.B. 1826) modeled after Arizona’s H.B. 2164, but withdrew this bill from consideration in May.

States in which the legislature is active in this space may also have activist attorneys general. Texas Attorney General Ken Paxton, in particular, has filed numerous consumer protection lawsuits over the past several years and has secured large settlements, including a recent $1.375 billion settlement with Google and $1.4 billion settlement with Meta over privacy claims.

This government litigation could also encourage consumer class action litigation. Individual plaintiffs may attempt to sue for fraud or misrepresentation and allege economic injury, even if they did not suffer a physical harm.

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Arnold & Porter has been tracking these developments and counseling clients on compliance and strategies to mitigate risk. Our team is here to help with any questions you may have.

© Arnold & Porter Kaye Scholer LLP 2025 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.