In This Issue

 

Interview with Richard Daynard

 

Seeking Parents for Soda Lawsuit

 

Upcoming Appearance

 

Lecture Series on Food Politics

 

Recommended Resource

 

Seeking a Laptop Donation

 
Quote, Unquote
   
 

"Personal responsibility was one of the leading defenses that the tobacco industry used both in the courtroom and in the court of public opinion."

 

Ė Richard Daynard, discussing the parallels of food and tobacco industry strategies

   
 
 
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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March 2006

 

Interview with Richard Daynard on Parallels with Tobacco

Public health advocates like to draw parallels between issues for better understanding. While the media has started to make the connection between the tactics used by the tobacco and food industries, there is still a general assumption that food companies donít deserve to be painted with the evil brush of Big Tobacco. So Informed Eating decided to interview one of the nationís leading authorities on the subject. Richard Daynard is a professor at Northeastern University School of Law, chair of the Tobacco Products Liability Project, and director of the Public Health Advocacy Instituteís Law and Obesity Project. A veteran of the tobacco wars, Dr. Daynard is in a unique position to understand the parallels between the tobacco and food industries.

How does the rhetoric related to tobacco and obesity sound similar to you?

I remember being on talk shows when I first got involved with obesity, and people would say, this isnít like tobacco. They said tobacco companies lied to people and tried to hook kids, and so on, and this is different. These voices sounded very familiar to me from the early days of tobacco litigation. They sounded like the same voices that were telling me you canít sue tobacco companies. But now people have learned that tobacco companies are bad actors and have something to do with the fact that people are actually using this worthless and deadly product. Thereís obviously the difference that you need food, you donít need tobacco. But then you donít need the junk that some of the food companies are selling. You donít need it in the kinds of quantities, even if you have it occasionally, having it in the kind of quantities they need to sell to you to make their profit projections are certainly not good for anybody.

Do you see a parallel in tobacco to the food industry front group, the Center for Consumer Freedom, which was started with money from Philip Morris?

Yes, the Tobacco Institute was basically the PR and lobbying arm of the tobacco industry. The companies all contributed by market share to support the Tobacco Institute. You donít have this level of funding with the food industry partly because itís too diverse while the tobacco companies were all selling the same thing. The agreement among the tobacco companies was to not say anything. For a long time, none of the corporate executives would speak to the press. They would defer all calls related to the health of the product to the Tobacco Institute. They rehearsed in front of mirrors the lines they were going to use. There were a small group of people, maybe three of four people at any given time, who were authorized by the industry to speak to the press about anything like that.

Executives could talk about how your stock was doing, but when it came to talk about smoking and health, it was all run through the Tobacco Institute. Their underlying concern was product liability. They sat around and decided the party line. For example, none of the companies were allowed to advertise that they had any product that was safer than their regular product. If any company pushed to the line, they pulled them back. This violated antitrust laws. Itís also a conspiracy to do these things and it has been so ruled in a number of cases. That didnít stop them because they were afraid of going belly up, so they took some legal risks.

Do you think the Center for Consumer Freedomís director Rick Berman is taking marching orders from Big Food?

He may be. I think heís a creative guy in a Karl Rove kind of way. I think he comes up with a lot of bright ideas then pitches them to the industry. But not everybody is on board. Still, anybody who funds Rick Berman, his representations are your representations. Heís speaking as an agent for you. So you want to think about whether you really want to be on the stand to defend the truthfulness or good faith of the kinds of things this guy does. I think a lot of the food companies donít want to do that.

Is it a common tactic of industry to allow front groups to do the dirty work, even if some companies arenít directly funding the lobbying activity?

Absolutely. Itís a free rider effect, which means as long as Berman is doing it anyhow, why should a particular manufacturer pay for it, even if they like the service? The only reason they pay for it is if theyíre worried that Berman is not going to do it. Itís a classic problem in economics. The smart folks are going to steer clear, for PR reasons. My guess is that heís probably funded by a bunch of regional yahoos. People who say, no union is going to come into my shop, no lawyer is going to tell me what to do. In some ways, the irony is that heís going to be funded by people who are behaving irrationally. If youíre behaving rationally, you sit back and let other people fund him and also save yourself the worry about being held liable for the kind of representations he makes.  

One of the food industryís favorite tactics is blaming personal responsibility. How did the tobacco companies use personal responsibility as a strategy?

This was one of the leading defenses that the tobacco industry used both in the courtroom and in the court of public opinion. Basically, the personal responsibility argument was that anybody who is stupid enough to use their products and gullible enough to believe the companies when they said their products donít cause lung cancer and other diseases, deserve to get those diseases. Thatís what it boils down to when you unpack it: that the companies are blaming you. Saying that you really have to be stupid to buy our product was a great way to defend the lawsuits, but not a great strategy for selling cigarettes. They tried to avoid actually coming out and saying that, but they got very close.

Another tactic we are seeing from the food industry is philanthropy. For example, we have PepsiCo and Coca-Cola funding educational programs in schools. What parallels do you see here with tobacco companies?

Itís very interesting. Phillip Morris was a very active philanthropist. They particularly gave money to minority organizations, and basically bought silence. [Meaning that in exchange for donations, recipient groups would not speak critically of industry.] There have been a number of articles written about how the tobacco companies bought silence, particularly from black organizations. They also would advertise very heavily in minority media; one of the few national companies to do it. It resulted in the black organizations and the black media basically not getting the word out that they were among the principal victims of this industry. They also advertised in early feminist publications, such as Ms. Magazine when that was the leading feminist magazine. So they bought Gloria Steinemís silence. They bought a lot of peoplesí silence by buying ads. They also put Billie Jean King on the board of Phillip Morris. By funding womenís tennis, they bought support from womenís organizations because nobody else was funding them.

Another tactic is for food companies to fund and distort nutrition research and science. Big Tobacco was notorious for this strategy. How did that work?

They set up the Council for Tobacco Research supposedly to get to the bottom of these ďrumorsĒ that smoking might cause lung cancer or other diseases. It never reached a conclusion on that subject because it was dissolved during the state litigation in the 90's. What the companies did fund, aggressively, was research into ďother causesĒ of lung cancer. A researcher was assured of funding by saying in his proposal that he were going to find the real cause of smoking-related illness. The analogy is O.J. Simpson who put out the reward for information leading to the real killer of Nicole.

In the early days, they would latch on to the few dissident scientists. In the fifties and sixties, there were some scientists who for whatever reason still didnít believe the smoking connection. The great majority did, but the companies showcased those few scientists who didnít. After that, they basically paid their tame scientists. It was very clear that if you were a second-rate scientist, and couldnít get funding from legitimate sources, you could get very nice money for essentially the rest of your career from the tobacco industry by continually publishing and testifying in court and legislative hearings that there was no connection. They had a bunch of paid scientists that would publish their own vanity press books and send them out for free to libraries throughout the country. And they would hold conferences that had very nice sounding names that were actually organized by the tobacco industry and that just consisted of the companies' paid findings.

Most of the major food companies are now claiming they are making healthier products. Do you also see a parallel here with tobacco?

Oh, this is the best! Filtered cigarettes turned out not to be at all less dangerous than regular cigarettes. The way the companies reduced the tar on the smoking machines [which was how the federal government conducted tested] was by putting little holes in the filter which a smokersí fingers would cover up but the smoking machines didnít [so the smoker would get more tar than detected through testing]. This is known as the light cigarette scam. It was under the pretense that the low tar cigarette was safer. One study estimated that eight percent more smokers might have quit had we not had these low tar cigarettes out there. It was an absolutely deadly scam. 

But tobacco is a different substance, so where do you see the similarity to food?

For example, with low fat; in both cases, there was some government and health authority complicity. The public health authorities did believe that low tar cigarettes were much safer because they didnít realize how deceptively the products were made. I think this is similar to low fat products. There has been a belief for a long time that low fat products are substantially safer. But these products were made low fat by adding high fructose corn syrup and other sweeteners so that they are no better for you. The fantasy the public health community had was everything else being equal, low fat is probably a good thing. But everything else isnít equal and the companies proceeded to put other equally dangerous stuff in the food as substitutes for fat. 

Kraft says they donít want to repeat the mistakes of sister company Philip Morris. Do you think this is genuine?

I think Kraft clearly is responding to the fact that itís owned by a tobacco company. Itís ironic that Phillip Morris bought Kraft because they made steady profits, had a motherhood and apple pie image, and no litigation risks, as a great balance to their portfolio of high-risk, high return cigarettes. Lo and behold people start talking about suing Kraft and others in the food industry. I think they genuinely donít want to get into this again. I think for that reason Kraft has a genuine motive; that doesnít mean everything theyíve done has been genuine. 

Do you think Kraftís motivation is to do the right thing or avoid litigation?

Their motivation is to avoid litigation, if necessary by doing the right thing. Which distinguishes them from other companies that would love to avoid litigation but if the price is doing the right thing, theyíre not going there. These are companies whose job is to make money, which is fine. I have nothing against this. So if Kraft decided to change their tune, itís because they think that the best way to make money is somewhat different than what they had thought previously, perhaps because the litigation environment has changed, or theyíre concerned about an obesity epidemic. I think itís never going to be the case that they are doing it because itís the right thing to do. Is it a plus for them that itís the right thing to do? Probably, theyíre not ghouls. But by itself, that would never be sufficient. I think you need the fear of litigation and the fear of public exposure. Then part of it is how much of this is a threat of public exposure and how much is a fear of losing in court, and the answer is, itís both. They are connected. 

Some nutrition advocates are saying we should try to work with the food industry. From your experience with the tobacco companies, do you think this is a viable strategy?

Well, you canít partner with someone who has a totally different set of goals than you. Industry necessarily has a totally separate set of goals from public health folks. If objectively a particular industry maximizes its profits by doing something that is antithetical to public health, than itís absurd to think that you can partner with them. You may be able to reach a truce, or cut a deal if you have something to threaten them with. Then you can get them to cease behaving as badly as they otherwise would have. But the situation is hopeless unless you go into it with the understanding that your interests are almost diametrically opposed, and that any deal you reach will be a deal with an adversary.

My position was never that I refused to deal with them. You should just never think that youíre dealing with friends or people whose interests are similar to yours. Your interests are opposed. You donít quite have the zero-sum gain with the food industry as we did with tobacco, but we have something thatís very far from our interest being aligned because food companies maximize their profits by selling junk food, otherwise they wouldnít being selling it and making a big contribution to the obesity epidemic. They wouldnít be doing it if they could make as much profit doing something else. They arenít fools. 

Are there some people who fought tobacco who still donít see the parallels?

Whatís interesting is that many folks learned lessons in dealing with the tobacco industry, that you canít partner with them, that you have to take them on, or you have to be in a position where you can really negotiate with them. These same people have to relearn that all over again with the food industry.


Seeking Parents for Soda Lawsuit

CIFCís Michele Simon is working with the Public Health Advocacy Institute, the Center for Science in the Public Interest and others on a lawsuit to get soda and other unhealthy beverages out of schools nationwide. If youíre a parent who would like to join this effort (especially in Massachusetts where the case might be filed), please contact us at: Michele@informedeating.org.


Upcoming Appearance Ė Monday, April 10

CIFCís Michele Simon will be speaking at the Prevention Research Center of Tulane University School of Public Health & Tropical Medicine in New Orleans on April 10. Like numerous other states, Louisiana has been the target of Coca-Colaís high-powered lobbying to undermine school nutrition legislation. To help place that stateís experience into the larger national context, her talk will be on, ďThe Politics of Childhood Obesity: How Food Companies Target Kids and Undermine Nutrition Policy.Ē If youíre in the New Orleans area, please contact Dee Boling at dboling@tulane.edu for details.


Ongoing Lecture Series on Food Politics

We on the west coast are lucky that New York University has temporarily loaned us Food Politics author Marion Nestle. A visiting professor at the University of California, Berkeley this spring, Professor Nestle is hosting a timely lecture series on the politics of food. The events are free and located in Room 250 of the Goldman School of Public Policy on the UC Berkeley campus. The events are free and located in Room 250 of the Goldman School of Public Policy on the UC Berkeley campus. For details: www.informedeating.org/Lectureposter.pdf.


Recommended Resource

This month, Informed Eating is happy to refer readers to an excellent blog guaranteed to keep you up to date on the latest in U.S. food and nutrition policy from an expert who also understands politics. Parke Wilde is a food economist who teaches at the Friedman School of Nutrition Science and Policy at Tufts University. He says if there were a profession called "nutrition economics," he would belong to it. Visit: www.usfoodpolicy.blogspot.com.


Seeking a Laptop Donation

With CIFC's Michele Simon increasingly taking her act on the road, we are in need of a lightweight and trusty laptop computer. If you can donate a relatively recent PC-compatible model, please contact us at: michele@informedeating.org with details. We would pay any shipping costs and the donation is tax deductible. Thank you!




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CIFC is proud to make Informed Eating available as a free public service. Unlike industry publications, it is not underwritten by corporate sponsors. We would greatly appreciate your support for this newsletter and our other important policy work. For more information or to make a tax-deductible donation, please visit www.informedeating.org or call (510) 465-0322.

Informed Eating is written and edited by Michele Simon. You may contact her at Michele@informedeating.org. Michele Simon is available for lectures and workshops in your community and can speak on a variety of food policy topics. For more information, visit: http://www.informedeating.org/lectures.html.

 

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