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 don’t deserve to be
painted with the evil brush of Big Tobacco. So
Informed Eating decided to interview one of the
nation’s 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 Institute’s
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 isn’t 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 can’t 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. There’s obviously the difference that you need
food, you don’t need tobacco. But then you don’t need
the junk that some of the food companies are selling.
You don’t 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 don’t have this
level of funding with the food industry partly because
it’s 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. It’s also a conspiracy to do these things and it
has been so ruled in a number of cases. That didn’t stop
them because they were afraid of going belly up, so they
took some legal risks.
Do you think the Center
for Consumer Freedom’s director Rick Berman is taking
marching orders from Big Food?
He may be. I think he’s 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. He’s 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 don’t want to do that.
Is it a common tactic of
industry to allow front groups to do the dirty work,
even if some companies aren’t directly funding the
lobbying activity?
Absolutely. It’s 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 they’re worried that Berman is not going to
do it. It’s a classic problem in economics. The smart
folks are going to steer clear, for PR reasons. My guess
is that he’s 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 he’s going to be funded by
people who are behaving irrationally. If you’re 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
industry’s 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 don’t cause lung cancer and other diseases,
deserve to get those diseases. That’s 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?
It’s 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
Steinem’s silence. They bought a lot of peoples’ silence
by buying ads. They also put Billie Jean King on the
board of Phillip Morris. By funding women’s tennis, they
bought support from women’s 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 “rumors” 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 “other causes” 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 didn’t believe the smoking
connection. The great majority did, but the companies
showcased those few scientists who didn’t. After that,
they basically paid their tame scientists. It was very
clear that if you were a second-rate scientist, and
couldn’t 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 smokers’ fingers
would cover up but the smoking machines didn’t [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 didn’t 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 isn’t equal and the companies proceeded
to put other equally dangerous stuff in the food as
substitutes for fat.
Kraft says they don’t
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 it’s owned by a tobacco
company. It’s 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 don’t want to get into this again. I
think for that reason Kraft has a genuine motive; that
doesn’t mean everything they’ve done has been genuine.
Do you think Kraft’s
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, they’re 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, it’s 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 they’re concerned about an
obesity epidemic. I think it’s never going to be the
case that they are doing it because it’s the right thing
to do. Is it a plus for them that it’s the right thing
to do? Probably, they’re 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, it’s 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 can’t 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
it’s 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 you’re dealing with friends or people whose
interests are similar to yours. Your interests are
opposed. You don’t quite have the zero-sum gain with the
food industry as we did with tobacco, but we have
something that’s very far from our interest being
aligned because food companies maximize their profits by
selling junk food, otherwise they wouldn’t being selling
it and making a big contribution to the obesity
epidemic. They wouldn’t be doing it if they could make
as much profit doing something else. They aren’t fools.
Are there some people who
fought tobacco who still don’t see the parallels?
What’s
interesting is that many folks learned lessons in
dealing with the tobacco industry, that you can’t
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
CIFC’s
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 you’re 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 – Monday, April 10
CIFC’s
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-Cola’s high-powered lobbying to undermine
school nutrition legislation. To help place that state’s
experience into the larger national context, her talk
will be on, “The Politics of Childhood Obesity: How Food
Companies Target Kids and Undermine Nutrition Policy.”
If you’re in the New Orleans area, please contact Dee
Boling at
dboling@tulane.edu for details.
