Coca-Cola, Big Tobacco, and Why the Personal Responsibility of the Consumer Should Not Be Allowed to Excuse Corporate Malfeasance

Tod Kelly

Tod is a writer from the Pacific Northwest. He is also serves as Executive Producer and host of both the 7 Deadly Sins Show at Portland's historic Mission Theatre and 7DS: Pants On Fire! at the White Eagle Hotel & Saloon. He is  a regular inactive for Marie Claire International and the Daily Beast, and is currently writing a book on the sudden rise of exorcisms in the United States. Follow him on Twitter.

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284 Responses

  1. mark boggs says:

    This is awesome, Tod. I’m interested to see where the comments go on this.Report

  2. Plinko says:

    I knew all that stuff about the McDonald’s coffee lawsuit.
    In my experience, when you let someone know about these facts when they rail about frivolous lawsuits, they mostly don’t care.Report

    • Plinko in reply to Plinko says:

      Also, excellent post, Tod!Report

    • NewDealer in reply to Plinko says:

      Showing pictures of the burns usually shuts people up pretty quickly but generally you are right that people just want to yuck yuck at a simple and wrong story.Report

      • Kazzy in reply to NewDealer says:

        I saw a documentary (I think it was called “Hot Coffee”) that tried to reverse the conventional narrative around so-called “outrageous lawsuits”. It pretty clearly had an agenda and I thought at times it served this agenda a bit too forcefully, but it was really interesting. And, yes, it showed the burns, which pretty clearly showed this wasn’t someone just trying to scam a big corporation.


        • NewDealer in reply to Kazzy says:

          The woman who made that is a plantiff’s lawyer. So it was a bit propagandistic. Yet she got people talking (albeit briefly)Report

          • Will H. in reply to NewDealer says:

            I think personal injury attorneys probably have a slightly different worldview than the general populace.
            And I’ve never been able to understand why family law attorneys could bring themselves to marry.Report

            • NewDealer in reply to Will H. says:

              “I think personal injury attorneys probably have a slightly different worldview than the general populace.”

              I think people like to rat on lawyer’s until they need lawyers. This is not completely true but fair enough. And I somewhat disagree with your view but most of my friends are pretty liberal. My non-lawyer friends like that I want to help individuals instead of representing corporations.

              “And I’ve never been able to understand why family law attorneys could bring themselves to marry.”

              Love conquers all is the joy and pain of the human condition. Perhaps working in family law makes them more careful in their selection of spouses, perhaps not. We all need love and passion. Well most of us.Report

              • Will H. in reply to NewDealer says:

                I didn’t mean that as a negative.
                Protecting the rights of the people is one of the most important works there is.
                I was pointing out the relation between dangers and awareness.
                Ignorance is truly bliss.
                The others must settle for drunkenness.
                Now, when people innately ignorant begin drinking heavily, that’s sort of a red flag.
                But other than that.Report

              • Kim in reply to NewDealer says:

                A lawyer is the only person you’ll ever pay to have your back, and your best interest in mind. He’s your advocate. It’s a /good thing/ that the other side also has an advocate. Saves time, saves headache.

                I know someone who scams contracts all the time (contract to design a “realistic military combat game” … yeah, like that, won’t surprise you that it’s rather easy to make a game that’ll scare recruits off from joining the military. and all within the letter of the contract, which means he got paid), knows just how far to push.

                Let me tell you, he’s a HELL of a lot better than the folks who think that they can just put any damn thing into the contract, even if it’s blatantly illegal.Report

          • Kazzy in reply to NewDealer says:

            Propogandistic is a good word. I was going for that sentiment but couldn’t find a good way to describe it.Report

    • Burt Likko in reply to Plinko says:

      I use the Liebeck v. McDonald’s cases in my teaching activities all the time. I typically begin by asking my students to tell me about the “hot coffee” case, and promising that I’ll tell them what I know after they tell me. Mostly, they do know it was McDonald’s, and they know it was a woman. The amount of the verdict varies wildly. Some of them state (correctly) that the woman put the coffee between her legs in a car (although most incorrectly think she was driving). None of them know that the jury docked her 25% of her recovery for that because they determined that the bad location to store the coffee was 25% of the reason she got burned at all.

      When they hear all the facts, they usually tend to think the verdict was too easy on the defendant, and I’ve on more than one occasion ahd to start offering the more sober legal and factual arguments in McDonald’s direction.Report

  3. Patrick Cahalan says:

    What I don’t understand, and have never understood, is why we allow the huge moral hazard of *not* punishing people for this stuff with criminal charges. Fraud is fraud. It should be fraud whether it’s me defrauding you, or a corporation defrauding you. Forget about “it would be hard to convict them”, that’s not the point. Refusing to even bring charges, issue supoenas, haul people into court and get them on the front page of the paper removes not only the legal disincentive to be fraudulent, but most of the social opprobrium as well.Report

    • I think that much of the problem is the whole “fine print” issue (did the label say “contains 280 calories and 18 grams of carbs?) as well as the fact that everybody, absolutely everybody, in the country has been burned and burned *HARD* by something that they saved up their own money to buy when they were a kid.

      Whether it be X-Ray Specs, the issue that had Thor about to hit the Hulk in the head with his hammer (AND THE HULK DIDN’T EVEN APPEAR UNTIL THE LAST PAGE AND THEY DIDN’T EVEN FIGHT IN THE NEXT ISSUE THAT WAS A PURE TEAM UP), or that tea set that looked so pretty in the commercial with the little girls all playing tea party but ended up just being 4 crappy tea cups and a crappy tea pot and no little girlfriends with whom to sit at a table and talk about how nice it was to have tea together.

      There’s a tendency to ask “Aren’t you a little old to still believe in leprechauns?”, writ large, when it comes to a grown adult saying “but it was called Vitamin Water!”Report

      • Patrick Cahalan in reply to Jaybird says:

        The question, though, isn’t “aren’t you a little old to still believe in leprechauns?”

        The question is, did the company intend to defraud people. Was the intention behind the packaging selection, and the labeling, and the marketing program… was that intended to bamboozle the customer?

        Because if it was, that’s fraud, right?

        Fraud is the intentional deception with the intent for gain. It’s not about whether or not you got away with it, or whether or not people shoulda oughta known better. If my daughter sells lemonade at the sidewalk, people shoulda oughta know she’s not necessarily following USDA food prep guidelines. That’s reasonable, right? But it’s reasonable, on the other side, to assume that deliberate attempts to construct information asymmetry are discouraged in our marketplace.

        Issue a bunch of search warrants and go impound their email store. There’s going to be plenty of evidence of intention, there, you betchoo.Report

        • The whole “intentional deception with the intent for gain” indicts the entire freakin’ system.

          Mountain Dew is not extreme. The taste of Juicy Fruit will not, in fact, move you. McDonald’s does not give a crap when they see you smile. Makeup, without serious knowledge of how to apply it, will make you look much more like a clown than like… I don’t know who is doing makeup commercials. Lance Armstrong does not drink Michelob Ultra. Or, shit, maybe he does. Who knows with him?

          The entire fundamental premise of advertising is to manufacture “needs” in consumers. They do this through lying.Report

          • b-psycho in reply to Jaybird says:

            The entire fundamental premise of advertising is to manufacture “needs” in consumers. They do this through lying.

            Honestly, if advertizing is as impervious to detection of obvious bullshit as some portray it, that has troubling implications for our brains IMO. That every claim of a for-profit business isn’t automatically taken with at least a grain of salt…

            I see another side of this though. There are those who just eat & drink whatever because they enjoy it*, there are those who sincerely care what they consume and look into it to make informed decisions…and then there are people who merely think they give a shit but largely want to *feel* conscious, and do so as easily as possible. I get the feeling that that 3rd group wasn’t reading labels, but just saw “vitamin water” and assumed “hey, I’m doing something, right?”.

            (* – there are situations where even I scrutinize things, though it is not because of health concerns. It’s because I notice patterns over time that signal tastes I like more than others. This is actually why ever since I got the grinder I don’t buy ground beef for burgers anymore — not health, TASTE.)Report

          • Patrick Cahalan in reply to Jaybird says:

            Well, there is, I would say, a gradation of untruth. While it’s true that Juicy Fruit won’t move me, I don’t really expect that Juicy Fruit will move me.

            On the other hand, when I see something marketed as Vitamin Water, I expect it to have a measurable quantity of vitamins in it. Otherwise, it’s just “water”.Report

            • Wardsmith in reply to Patrick Cahalan says:

              ” I don’t really expect that Juicy Fruit will move me”

              WHAT?? You mean Juicy Fruit /isn’t/ a laxative?Report

            • Glyph in reply to Patrick Cahalan says:

              Pat –

              I expect it to have a measurable quantity of vitamins in it.

              As it happens, there was one of my wife’s still in the back of the fridge. According to the label, it contains per bottle RDA:

              150% C
              100% B12
              100% B6
              25% Zinc
              Chromium (?!) 25%
              Pantothenic Acid (?!!) 100%

              Throw those last two out, since I don’t really know what they do to or for you; but the remainder look like vitamin supplements people take all the time, in non-insignificant RDA %’s.

              If I sold you a pill containing those ingredients, could I call it a “vitamin”?

              If I dissolved it in a glass of Kool-Aid first, could I call it “Vitamin Water”?Report

              • Patrick Cahalan in reply to Glyph says:

                That doesn’t jibe with what Tod put in the OP: “However, the vitamins in vitaminwater come in such minuscule amounts as to be meaningless to the human body. “

                (Not that you’re both necessarily incorrect.)Report

              • Glyph in reply to Patrick Cahalan says:

                Tod also referred to the vitamins as “chemically synthesized” – maybe it’s just me, but any vitamin I consume in a pill form rather than in a naturally-occurring foodstuff, I assume is “chemically synthesized”.

                Due respect to Tod, but calling a vitamin that has been added to a foodstuff “chemically synthesized” looks like shooting for some FUD to me.

                If these label claims are false, hammer ’em. But otherwise?Report

              • James K in reply to Glyph says:

                More to the point do “chemically synthesised” vitamins react differently in the body than ones that aren’t? Because if not, then it hardly matters whether they were chemically synthesised or not.Report

              • Will H. in reply to James K says:

                Some do, yes.Report

              • Kim in reply to James K says:

                Yes, but they generally screen the ones that’ll do bad stuff out.
                The real problem is differential absorption. You have a different RDA for calcium depending on where you get it from. The USDA RDA for calcium is 3x the UNESCO one, because we tend to get ours from milk, and that’s relatively poor absorption.

                Not that oxalic acid doesn’t also interfere with absorption.Report

              • Glyph in reply to Patrick Cahalan says:

                Pat – here’s an equivalently-sized Gatorade bottle’s info.


                Note the health claims, and the fluff/hype.

                Gatorade has more calories than Vitamin Water (130, vs 120).

                Gatorade’s sugars and carbohydrates exceed Vitamin Water’s.

                G: 12%/35g
                VW: 11%/32g

                Is Gatorade “healthy”? Is Gatorade “nutritious”? Well, compared to some things, and for some purposes, yes.

                What are we talking about again, here?Report

              • Will Truman in reply to Glyph says:

                Honestly, from an honesty standpoint, I have more a problem with the word “water” than I do “vitamin”… I mean yeah, there’s water, but it’s not “water” in the sense that I think of the term when buying something from a bottle.Report

              • Glyph in reply to Will Truman says:

                150% C
                100% B12
                100% B6
                25% Zinc

                If I sold you a pill containing those ingredients, could I call it a “vitamin”?

                If I dissolved it in a glass of water, could I call it “Vitamin Water”?

                If I add a packet of Kool-Aid with sugar and coloring, do I have to call it something else?Report

              • Which is why the “vitamin” part doesn’t bother me so.

                To answer your question, yeah, you can call that “vitamin water”… but when you add sugar, it ceases to be “water” in my mind. I don’t know that I would consider this actionably deceptive, but I think I consider it deceptive.

                Sort of like if a soft drink company called something Diet X even though it actually contained a lot of sugar (just less than Regular X). It’s playing on certain assumptions in a way that I don’t like.Report

              • Glyph in reply to Will Truman says:

                What about the “Ade” in Gatorade? Is this drink helping any reptiles? 😉

                Look, I don’t deny they are hoping people aren’t thinking. But it appears to be both healthier than Coke, and healthier than Gatorade, which is also explicitly marketed to the health-conscious consumer with similar claims (“BRAWNDO! IT’S GOT ELECTROLYTES!”).

                Trying to compare this to tobacco, or even scalding hot coffee, just seems like a reach.Report

              • As mentioned below, I’m still in McD’s corner on that one (more or less). I’m up in the air on this one. I need to read more about this one in terms of what specific claims they made. The name of the product leaves a bad taste in my mouth. But I do question whether that’s actionable or simply worth some really bad publicity.Report

              • Will H. in reply to Will Truman says:

                185F is certainly a hazard. If I was in a refinery working around piping that hot, it would have to be marked.
                I’m not sure what the regulations between brewing temps & holding temps were, but I’m sure that’s something that the jury looked at (mainly because I feel rather certain that it’s something McD’s would have brought up as a defense if the facts weighed in their favor).Report

              • Will H. in reply to Will Truman says:

                Concerning Gatorade:
                It was developed to help Florida win the Gator Bowl. That’s where the name comes from. It’s a sports drink.

                That said, if you had been through some safety classes on dehydration, you would know that sports drinks actually accelerate dehydration. They’re fine for a few hours of exertion, but dangerous for extended periods (meaning all-day).
                It’s the concentration of salts.

                Salt tabs the same way.Report

              • Glyph in reply to Will Truman says:

                Will – I was being a little tongue-in-cheek and was aware of Gatorade’s history.

                However, I didn’t know that it can accelerate dehydration under some circumstances. Whenever I get really sick with a cold or flu, the green stuff is all I want to drink (childhood holdover) – should I not be doing that for a day or two or three at a time?Report

              • Will, I haven’t found anything to tell me definitively that it’s not within industry standards. Temperatures of 180 are not uncommon, even today. While the plaintiff argued that coffee should not be served above 140, a number of sources cite 155-175 as being ideal.Report

              • Will H. in reply to Will Truman says:

                I think the issue with dehydration is one of fluid loss.
                We got the handout from a safety meeting during a heat wave.
                I think you’re ok as long as you’re getting fluids from other sources.
                The color of your urine should be a guide.

                I had that thing before where I thought I was pissing blood, and I went to the emergency room. They took a sample, and told me that I was getting dehydrated. Told me to drink two gallons of water a day.
                That much water is practically impossible to drink, but the attempt will stave off any dehydration.Report

              • Will H. in reply to Will Truman says:

                You got me curious.
                So, since I just took a cup of coffee out of the microwave, I put the thermometer in to it.
                A bit hot. Needs to cool down some. Not undrinkable. Scalds the lip only slightly.Report

              • Will H. in reply to Will Truman says:

                About 162F is good for drinking.Report

              • Will, thanks for the field test! Just be sure not to spill the coffee.

                I honestly don’t know what the perfect temperature for me is. I do know that when I get coffee it is far more likely to be “not hot enough” than it is “too hot” and that it’s easier to let coffee cool down than it is to heat it up. Which is part of my bias in all of this.

                I actually used to blame the McDonald’s lawsuit on the fact that it’s hard to get coffee that’s hot enough, but apparently it did not (or did not much) change the temperature at which coffee is served at a large number of establishments. So now I can go back to blaming the individual proprietors and chains and their apparent irrational fear of the lawsuit.Report

              • Kim in reply to Will Truman says:

                The gators are a sports team, which the drink was designed for.Report

              • Kim in reply to Will Truman says:

                Haven’t had much trouble with salt tabs and 15 mile hikes, with a 25lb pack. Ya sweat, you need the salt. Yes, of course, if you’re drinking something too concentrated, you got problems. But a couple of liters and 1-2 tabs seems fine.Report

              • Glyph in reply to Glyph says:

                The VW bottle is also 20 0z. And it simply gives you all the nutritional info based on drinking the whole bottle, unlike the Gatorade bottle which also breaks the info into multiple servings (which no one will ever follow, they’ll drink the whole thing). In this respect the VW bottle strikes me as slightly more honest. 🙂

                IOW, I made sure I was comparing apples to apples in portions/percentages.Report

              • Alan Scott in reply to Glyph says:

                IIRC, the 20 oz VW bottle lists an 8oz serving in the nutrition facts section (and breaks down RDA % by 8oz serving there), and then separately in larger type lists select vitamins and their RDA % based on the full 20 oz bottle.

                I assume you’re reading from the big label on the front/side?

                Also, it should be noted that each flavor contains a different combination of vitamins. Which flavor are you reading?Report

              • Glyph in reply to Glyph says:

                Alan – see my reply to Shaz just below in answer to yr questions.Report

              • Shazbot5 in reply to Glyph says:

                I think most of them offer 10% of the B vitamins per serving, not 100%, no? (And about 2.5 servings per bottle that adds up to 25%..) Maybe the red one has more B12, but are you sure it is 100% and not 10%?

                Also, I’m pretty sure there is evidence (correct me if I’m wrong) that B vitamins don’t absorb very well in pill/drink form, such that even “100%”. So really, you’re getting ridiculously little vitamin content, except vitamin C. Most multi-vitamins are of questionable worth, because of low absorption, but at least they are sort of “broad spectrum” in that they give you a ton of different vitamins and minerals.

                And lots of cruddy, ersatz-fruit juice like “Hi-C” has some vitamin C. But to call Hi-C “Vitamin water” just because it contains a small amount of vitamin C would be stretching the felicitous use of the word vitamin. By analogy, suppose I called Coke, a “Vitamin Health Supplement” because I had injected it with 1 microgram of vitamin C. There are limits to what can be called a vitamin or vitamin supplement, and IMO, so-called Vitamin Water doesn’t cut it. (If they actually added a full multi-vitamin, inlcuding the fat soluble vitamins, it would be costly and some idiots might drink too much of the fat soluble vitamins and get sick.)Report

              • Glyph in reply to Shazbot5 says:

                Shaz – I only have the one bottle – it’s called “Power-C (vitamin C & taurine); dragonfruit flavored.

                Don’t know if they have different varieties, but the label is as I reported it (just got it back out of the fridge and re-checked b/c you had me panicking that I had read 10% as 100%). So yeah, 100% on the B’s.

                And it lists “Serving size 1 bottle” (which is 20 oz) on the nutritional table.

                Also, I’m pretty sure there is evidence (correct me if I’m wrong) that B vitamins don’t absorb very well in pill/drink form, such that even “100%”. So really, you’re getting ridiculously little vitamin content, except vitamin C. Most multi-vitamins are of questionable worth, because of low absorption, but at least they are sort of “broad spectrum” in that they give you a ton of different vitamins and minerals.

                This may be true, I don’t know, but if so it’s a problem with “vitamins” not Vitamin Water.

                So, to repeat:

                150% C
                100% B12
                100% B6
                25% Zinc

                If I sold you a pill containing those ingredients, could I call it a “vitamin”?

                If I dissolved it in a glass of water, could I call it “Vitamin Water”?

                If I add a packet of Kool-Aid with sugar and coloring, do I have to call it something else?Report

              • Shazbot5 in reply to Glyph says:

                Lots of the vitamin water labels here don’t offer 100% of B12.


                (Look at the first link on images)

                So maybe some flavors are more legitimately vitamins than others.

                Is anything with some vitamins in it something that can be legitimately called “Vitamin X”?

                If I add 1 microgram of one vitamin to a donut, can I call it a “Vitamin-Health Donut.”

                I’d say the flavor of vitamin water that you’re referring to has just enough vitamin content to be called by a sneaky lawyer type “a vitamin,” but to call it “vitamin water” is to make it sound to the rubes like a multi-vitamin that has more vitamin content than it does. And the other flavors are less vitamins.

                BTW, if you sold a pill that had 25% B6, 20% B12, and 100% of C and just labelled it “Super Health Vitamin” I’d call that fraudulent too.

                100% of B12 is good, though, especially for the vegetarians, although maybe none of it absorbs.Report

              • Shazbot5 in reply to Shazbot5 says:

                And thank God for labelling requirements. Imagine if they didn’t have to list what vitamins were in there.Report

              • Glyph in reply to Shazbot5 says:

                Yeah, they have the one I have (Power-C, Dragonfruit) but either there are no good images online, or I can’t find a good shot, or they are just not legible on this small screen, of the nutrition info part of the label.

                Another thing that occurs to me – if this kerfuffle is just hitting the news now, maybe they boosted the vitamin amounts in response to bad publicity, and I am looking at a bottle of more recent vintage?Report

              • Glyph in reply to Shazbot5 says:

                No doubt. Lest anyone think otherwise, I am in full support of truthful ingredient disclosure. But consumers have to bear some responsibility to read and understand them.Report

              • Kazzy in reply to Shazbot5 says:


                I think companies should be free to label their bottles as they see fit BUT under the condition that what they do put on their can be demonstrated by them to be true. The burden should not be on others to prove it false; it should be on the company to prove it true. And they must do so before they put it on there. They don’t necessarily need to demonstrate each and every claim to a governing body before usimng it but if called upon to prove one, they must be able to do so on short notice; none of this, “Well, lets have some time to figure it out.”

                And I’d give some leeway. If they want to say “great tasting”, fine; I’m sure someone somewhere will think it is. “Best cola taste,” is likewise fine for the same reason. “Preferred by 2 out of 3 soda drinkers.” Well, now they must show a fair and replicable study indicating such. “Might aid in the prevention of cancer?” No dice. No “might”.

                And no conflicting fine print. Mo saying in big bold letters “CURES CANCER!” And then print that says, “Well, we think it might but who knows…” In that case, whatever the consumer feels is a more believable claim is treated as the claim.Report

              • Glyph in reply to Shazbot5 says:

                Kaz, I don’t really disagree with what you lay out here; in this case I think it hinges on whether the claims at issue are completely spurious like “might aid in curing cancer!” (which I agree, that’s bad news) or something generic like “aids in toxin elimination!” (which, technically, water does, by flushing your system out when you pee).

                I suspect the claims here are more like #2, and have been long-vetted by Coke’s lawyers to be assuredly scientifically true, even if trivially so. This may also relate the amount of “vitamins” – the bottle I have certainly seems to have fair percentages RDA-wise of a few vitamins, but it looks like the amounts can vary by variety, and in fact I am starting to wonder if they have been boosted to respond to the bad publicity, since the bottle I have here seems to have higher percentages than others are reporting. But, at least in the percentages I am seeing on this bottle, these seem like reasonable percentages for me to think that this is “water” with “vitamin” in it (and also, lots of sugar, although less than Coke or its presumed rival Gatorade, which appears to be whistling by this particular pogrom).

                What if I labeled my plain old bottled tap water with a slogan like, “Glyph’s water can help *you* stay alive!” That is true – we all must have water – and so mine can be the one you choose, and it *will* help you stay alive (though it’s obvs. not sufficient on its own). I suspect if you did it with the right winking irony, it could be a selling point.

                Or the fact that I have thiscoffee unopened on my shelf (haven’t gotten to it yet) – am I seriously worried, based on packaging, that this will kill me? I mean, it COULD, and I guess if it does I’ll have no one to blame. But still.Report

              • Kazzy in reply to Shazbot5 says:

                Presuming VW/Coke can’t and hasn’t stopped competitors from saying, “We ALSO help clear out toxins AND we do it without a ton of sugar,” then I wouldn’t object to VW’s toxins claim. However, it should be considered whether sugar qualifies as a “toxin”. If VW clears out X toxins but imports Y toxins and Y is greater than X, thus leading to a net increase in toxins, than I think the “Clears out toxins” saying is not fair game. I don’t know if sugar does or should count as a “toxin”; I’m just offering it as an example of stretching a claim too far.

                Similarly, if they claim that their “Unique formulation clears out toxins”… I’d call BS on that, since it is not their unique formulation that is clearing out the toxins, but the mere presence of water.

                I don’t have a VW bottle in front of me. I rarely drink the stuff. I’ll occasionally have a Gatoraide if I’m really hungover or after a long (10+ mile) run, because the sodium and the potassium and, yes, the sugar are all things my body does need at that point, in conjunction with other things. At that point, I nor my body care precisely how it gets those things; it just needs them. Of course, if I have better options (water, Triscuits, and a banana), I go that route. We shouldn’t pretend that these things are all terrible and never serve a purpose. They just don’t serve the purpose most people use them for.Report

              • BlaiseP in reply to Shazbot5 says:

                Vitamin deficiency isn’t very well understood, all these years after we’ve identified how to cure deficiency-related conditions. Here’s the deal: we don’t treat vitamins as medicine but rather as food and regulate their sale as such.

                Were it within my power, I’d change the way we regulate vitamin content and advertisement. Americans are just dumb, no getting around that fact. If a little is good, more hasta be better. Thousands of people are treated for vitamin overdoses: all those oil-soluble vitamins such as vitamin A can be fatal. All those supposedly healthy egg whites attenuate our uptake of biotin.

                Yes, we are dumb. Centuries of experiments have demonstrated there’s just no regulating dumbness out of people. Can’t make them eat good food, either. But we can stop these marketers from reinforcing that dumbitude. These “daily minimum requirements” numbers are junk science. Not all vitamins are metabolised directly or even daily, especially all these calcium supplements. Nutrition requirements vary with the stages of life, pregnancy and the like. Eat a balanced diet and cut down on the goddamn red meat. Talk to your doctor about your nutritional requirements and pay no attention to any claims wherein you can buy a shortcut to Super Health.Report

              • Glyph in reply to Glyph says:


                pantothenic acid = B5

                chromium, if it’s say trivalent, is probably just homeopath style woo; but if it is hexavalent, then consumers may either die (it’s toxic…) and/or develop superpowers (…and mutagenic).Report

        • Kolohe in reply to Patrick Cahalan says:

          I for one didn’t know vitaminwater was complete bunk before this article. (I also didn’t know it was owned by Coca Cola, I thought that guy at the Kentucky Derby still owned it)Report

      • Glyph in reply to Jaybird says:

        Assuming that the nutritional info on the labels was true w/r/t sugar content and vitamin content, I am not seeing the ‘fraud’ aspect. And saying Vitaminwater is healthier than soda, even if it only has *fractionally* less sugar and *fractionally* more vitamins, is marginally true (as would be marketing Coke as healthier” than say whiskey; wouldn’t it be a win if we could get alcoholics onto Coke, and heroin addicts onto pot? If some fraction of people switched from soda to Vitaminwater, isn’t this a win, even if not as large a win as we’d like?)

        Also, I don’t disagree it’d be better if we weren’t so obese; and maybe one day, we will reach the point where we see sugar, something our bodies and brains need in moderation, as equivalent to an addictive product that causes cancer, or a liquid so hot as to require skin grafts; but until we do, I am surprised that these seem valid comparisons to basically some sugarwater, which is about as close to “placebo” as you can get. Did anyone who bought this product really think they were buying “medicine”? Really?

        Last, exactly how is Coke shifting the public perception? The truck with my soda pallet payoff has yet to roll up to my house. Their legal defense is their legal defense, and goofy indeed it seems; but they didn’t tell me to say or think anything (disclosure: I don’t drink Vitaminwater, but my wife has; I drink maybe 1 Coke per month).Report

        • zic in reply to Glyph says:

          You’ve made me remember.

          In 2005, I opened a coffee shop. We served gourmet coffee and tea, and food, most of which I cooked. I live in a resort town in Maine, in the western mountains, where people come from all over the world for year-round recreation.

          When we first opened, I made a point of talking to as many customers as possible to find out what they wanted us to sell. Beyond coffee and tea — we sold Mocha Joe’s coffees and Divinitea Teas, they wanted Vitamin Water. And people wanted Vitamin Water because they thought it was a healthy alternative. So we sold it.

          I still drink a Revive occasionally. And I do think the potassium in it helps me, though it creates something of an acid burn in my stomach; for which I eat Tums™.Report

          • Glyph in reply to zic says:

            And people wanted Vitamin Water because they thought it was a healthy alternative. So we sold it.

            And relatively speaking, it is. Slightly better than whiskey or coke, anyway (though I’ll take the whiskey and coke, please, if I still can).Report

          • George Turner in reply to zic says:

            Or perhaps it’s worse. I recall a funny Cream of Wheat ad from a 1920’s issue of Scientific American magazine I was reading in the library. In it, their black spokesman said, “I don’t know what vit-a-mins is, but don’t worry, there ain’t none of ’em in Cream-o-Wheat!”Report

          • Michael Drew in reply to zic says:

            Hey zic,

            I’m sure your life just feels like your life, just like everyone’s – ups, downs, middles – but it sounds frickin’ awesome. It’s a dream of mine to perhaps open a coffee shop someday. And I’ve been to Maine – it’s amazing (though I haven’t been in the west). If you ever wanted to write about experience with your business, I’d be really interesting in reading about it.Report

      • gregiank in reply to Jaybird says:

        “Aren’t you a little old to still believe in leprechauns?”, =

        I certainly never expected my carefully crafted PR/Advertising pitch ( with the help of sophisticated consultants, focus groups, psychology, statistics, etc) to have any affect on changing peoples behavior and making my client money. It should be obvious i shouldn’t be trusted and only a chump like you would be affected by all the techniques i used.Report

    • NewDealer in reply to Patrick Cahalan says:

      To Big Too Fail and the risk of hurting innocent people.

      Again, HSBC is the sad example. I think it is fair to say that the overwhelming majority of HSBC employees did not know about the money laundering schemes for terrorists and drug cartels. There are also the hundreds of thousands or millions of people with ordinary and non-criminal bank accounts and mortgages at HSBC.

      How do you punish the bank without destroying the lives of all these people?Report

      • Burt Likko in reply to NewDealer says:

        1) You could impose a strenuous fine on the bank, and require particular language about that fine to be included in a notice to shareholders (as in “this is why there is no dividend for you this year”).

        2) You could require that individuals personally involved in the malfeasance be separated from the company. (I have doubts that this would hold up under the Contracts Clause but I might be wrong about that.)

        3) You could use antitrust-like remedies: sever some of the operations or the assets to other entities, either to be created or to be bought by competitors at auction.

        4) You could actually prosecute the particular individuals involved.

        5) You could restrict the bank’s ability to engage in particular kinds of business activities related to the offense, or require significant oversight for doing so, as a condition for continued eligibility for the right to continue doing business in the United States (again, Contracts Clause problems but maybe it would be found “reasonable regulation”).

        Of all these, the fine and required disclosure seems like the best and easiest way to go.Report

  4. Jaybird says:

    What do you see happening?

    I imagine that, at one extreme, Vitamin Water may have to become Vitamin Water* and, at the other, Vitamin Water will go away *OR* only the “lite” versions of Vitamin Water will be allowed to retain the name while Original Vitamin Water will become “Energy Burst Water” or similar.

    Brita’s market share, I fear, will not change.Report

    • Tod Kelly in reply to Jaybird says:

      Not relevant, I’d argue.

      You shouldn’t refrain from defending Coke because “we need to get rid of vitaminwater;” you should refrain from defending them because purposeful fraud should be unacceptable.

      If they don’t commit fraud in their attempts to sell it, what the hell do I care what vitaminwater’s sales are?Report

      • Jaybird in reply to Tod Kelly says:

        Well, the problem that I have is that my own personal inclinations are to say “THEY’RE CORPORATIONS!!! THEY’RE LYING TO YOU!!!!” when it comes to anything that any commercial says.

        That said, the factually false things that Vitamin Water claimed (“powers your immune system” and “helps fight free radicals to improve your body”) strike me as actionable according to the lawsuit (unless, of course, “hydration” does these things which would put the claims in the “contains no Botulinum!” territory).

        So we fine Coca-Cola. Vitamin Water’s ad campaign changes.

        And (insert actress of the moment here) will be in the next commercial blinking her (MAGNIFICENT) eyelashes in closeup and talking about Whatever Mascara. The commercial after that will have three guys bonding while holding, but never lifting, bottles of beer. The commercial after that will have a commercial for Local Injury Lawyer who helped (actual client! not a paid actor!) get $125,000!Report

        • Glyph in reply to Jaybird says:

          “unless, of course, “hydration” does these things which would put the claims in the “contains no Botulinum!” territory”.

          My default assumption is that they are true in exactly the way you posit. There is no way Coke’s lawyers would have allowed such phrases if they could be demonstrated as false, rather than as true, even if only “technically” (the best kind of true!)Report

          • Mike Schilling in reply to Glyph says:

            Thing is, that wasn’t true of the tobacco companies. Documentedly so, over a period of decades. When there’s a lot of money involved, people lie, often stupidlyReport

            • Glyph in reply to Mike Schilling says:

              No doubt. But I’ll be surprised if Coke, a company that strives for a rep synonymous with “America”, and with the example of the tobacco companies before them, would be so careless. Could be wrong.

              But as well-written and forceful as it is, the OP gives the game away when Tod concedes “it’s not exactly rat poison” – an addictive product that causes cancer, or that causes third-degree burns? That’s like rat poison.

              Sugar water that is slightly less sugared than the other sugar water? Not rat poison.Report

              • Mike Schilling in reply to Glyph says:

                We all agree that it’s not rat poison. Neither is tobacco. It kills almost always slowly and some people not at all. If their health claims are only true kinda sorta maybe if you look at them the right way, I say nail the bastards to the wall, if only that someday our grandkids can live in a world where bullshit isn’t the predominant mode of expression.Report

              • Kolohe in reply to Mike Schilling says:

                When has bullshit *not* been the predominant mode of expression? Particularly in America, which was built on aggressive marketing that played fast and loose with things called ‘facts’ (much less ‘truth’) from the very beginningReport

              • Glyph in reply to Kolohe says:

                Well, and this is sort of part of it too. That “bullshit” is part of the “flavor” of America, if you will. I want to see outright lies and fraud punished, sure; but get rid of all the PT Barnums, the bullshitters?

                Maybe it’ll be a better society, but it’ll damn sure be dull.Report

              • greginak in reply to Glyph says:

                sheds tear….puts on hand heart…..just beautiful….Report

              • Glyph in reply to Glyph says:

                This Mac I am typing on is not “insanely great” at all, nor do I “think” any “differently” than I did before I got it. As far as I can tell I remain sane, and retain the approximate success and intelligence level as I always have.

                I am going to go dig Steve Jobs up and have some words with him, I just do not appreciate being snowed like this.Report

              • Mike Schilling in reply to Kolohe says:

                And sewage flowing through the street gutters? Always been like that. Why would you want to change it?Report

              • Kolohe in reply to Mike Schilling says:

                Yeah, an engineering problem is just like changing culture and human behavior.Report

              • Mike Schilling in reply to Mike Schilling says:

                Dumping crap (of both sorts) right outside the door was human behavior, unchangeable until it, you know, changed.Report

              • Glyph in reply to Mike Schilling says:

                Raw sewage is (to humans), like rat poison.

                Making fluffy claims about sugar water is even LESS like rat poison, than is sugar water, which is already unlike rat poison or raw sewage (I assume, I don’t drink it).Report

              • If “nutritious,” “powers your immune system,” and “helps fight free radicals to improve your body” is fluffy, I’m not entirely sure that fluffy actually means anything.Report

              • Glyph in reply to Mike Schilling says:

                Tod, I suspect that those claims are probably true within the contexts of “hydration” (and sugar is most definitely a “nutrient“; if you don’t think so, drop it from your diet entirely; therefore something which contains sugar is at least minimally “nutritious”.)

                Again, I can almost guarantee their lawyers looked at every claim very carefully to make sure it can be counted as “technically” true (or at least not demonstrably false).

                Don’t get me wrong, Coca-Cola is counting on us to be dumb (always a safe bet); but why not rail against the fact that, you know, Coca-Cola contains no coca? Because THAT is a claim which is definitive. Why don’t we care? Because we know better. And we had them remove the coca, when we realized it was addictive. Maybe one day we’ll find the same of sugar (there is some evidence, but I don’t think it’s conclusive yet, and anyway as I said we do need some of it, whereas we need no coca).Report

        • Mike Schilling in reply to Jaybird says:

          My own personal inclinations are to say “They’re corporate shills!!!” when it comes to anything that any “free-market conservative” says.Report

        • KatherineMW in reply to Jaybird says:

          The answer, clearly, is to ban advertising.

          The Internet is sufficient for every company to get its publicity through word of mouth.Report

          • Kim in reply to KatherineMW says:

            That’s not banning advertising, it’s just making it smarter.
            Did you hear the advertising campaign where they would leave bags of empty cans in the trash near popular bars?Report

        • Tod Kelly in reply to Jaybird says:

          So Jaybird, let’s assume that it isn’t a corporation, but a government entity.

          Let’s say that (I’m making things up here) the head of a government agency was caught saying not to eat a particular kind of food because it was bad for you, that that same person also promoted an alternative option as healthy, and brought legal action against some scientists that produced work that said otherwise.

          Now let’s say that it turns out that that government official new that everything he had told the public was wrong, but because he owned shares in a certain company it was proven he stood to gain from that misinformation. And let us also say that the scientists he pursued legally into bankruptcy were not only right all along, but also that the agency head knew they were right all along.

          Now, if this were to happen (and I’m sure you’d be the first to argue that it has, many times), should our response be to say that because the government isn’t always right, it doesn’t matter? Should we argue to continue to support not only that government, but that agency head? Should we shield him from bad press, prosecution and firing because – hey! – people should’a known that you need to take government findings with a grain of salt? After all, you can’t regulate people from being dim.

          I’d argue (as I assume you would) the answer to all of those questions *should* be no.

          So why should we give corporations a pass for those exact same actions?Report

          • Jaybird in reply to Tod Kelly says:

            There are a handful of differences but here are the first couple that happen to me:

            Coca-Cola, for all its power, has limited jurisdiction. If I say “screw you, Coca-Cola Company, you ain’t coming into my house”, it won’t come in.

            When it comes to the government lying to my face (and everyone else’s), the government ostensibly wants what is best for me (and everyone else). I think that there are a lot fewer illusions when it comes to how Any Given Corporation views me (and everyone else). (For some reason, what I feel for those who believe that government wants what is best for them is closer to “sadness” than the “irritation” I feel towards the person I’m imagining saying “but it said it was Vitamin Water!”)Report

    • Mike Schilling in reply to Jaybird says:

      Which is why it’s necessary to fine or jail some old-fashioned flesh-and-blood type people. To encourage the others.Report

  5. James Hanley says:

    As others have said, this is an awesome and excellent post.

    There is a fine line, or perhaps better, a gray area between pure fluff and outright lies. To show fit people drinking beer suggests that drinking beer is really consistent with fitness, which isn’t entirely true, but then isn’t entirely false, either, and in fact isn’t a specific claim at all. But to say “Joe’s Beer burns carbs and strengthens your cardio-vascular system” is to make a clearly factually false claim, and clearly false claims are clearly fraud–offering something that you don’t actually deliver.

    The difficulty, of course, comes from firms knowing this, and trying their best to figure out how to walk up to the line of fraud without actually crossing it. And we can’t effectively regulate for fraud within that gray area because we can’t draw lines that are clear enough to provide guidance for the regulated entities and can be enforced in a manner that leaves law as the governing force, rather than persons.

    For example–drawing from a different regulatory realm–when Montana repealed its 55 mph speed limit and replaced it with a requirement that people drive at a “safe and reasonable” speed, they eliminated any clear lines. So citizens could not be sure what a particular policeman would interpret as reasonable in any given circumstance.

    It’s just an unfortunate fact that the real world doesn’t always provide good bright lines between what’s ok and what’s not ok. But Tod is definitely right in that the line can be crossed, and at that point we’re talking about fraud, and fraud cannot legitimately be blamed on the defrauded party.Report

    • Scott Fields in reply to James Hanley says:

      I second your second that this is an excellent post. Sadly, the heart of the problem lies here:

      Were they individuals and not corporations, they would all be facing jail time.

      Big business has succeeded in shielding corporate malfeasance by deliberately blurring the lines (bright or otherwise) you get at above. The Joseph Cassanos of the world never see the inside of a jail. Until those successes are reversed, nothing will change.Report

      • mark boggs in reply to Scott Fields says:

        I’m just talking out of other people’s asses at this point, but their retort, as I imagine it will be: “But if you make those individuals who make the big decisions at corporations responsible for things, no one will ever take a risk again for fear of getting jailed. Why do you want to kill the American entrepreneurial spirit?”Report

        • Kazzy in reply to mark boggs says:

          To which I say, that is not entrepreneuism… It is a zeroing out of risk on the backs of others.

          If you can’t run a profitable business without breaking the law, maybe your business venture isn’t so… Venturous.Report

          • James Hanley in reply to Kazzy says:

            Yeah, taking a legal gamble and losing money should not be punished. Taking actions for which you would in fact be punished if you did them outside the workplace, those should still be punished. That’s definitely not being an entrepreneur; it’s being a crook. The distinction may not always be perfectly clear, but I think it is more often than not.Report

        • Ken in reply to mark boggs says:

          Obviously the mistake the Mafia has been making all these years is relying on the omerta, rather than forming a corporation so that none of the employees”can be prosecuted for any acts of the company.Report

  6. KatherineMW says:

    A company should not be allowed to deceive its customers and then say “it’s their fault for falling for it!” You can’t sincerely say “the people should be allowed to choose for themselves!” while pummelling them with false information. And when you do that and demand that people have free choice, you impose a major cost on the government by leaving it the option of either having people make harmful choices without knowing those choices are harmful (which is unacceptable) or spending large sums of money on public education campaigns to counter your own false statements.

    I’d like to see the tobacco industry have the entirety of its profits for the for the indefinite future be confiscated and put towards lung (and throat, and other relevant) cancer treatment, prevention and research, but I’m pretty sure that’s legally infeasible. It’s ethically suitable, though. The right of people to kill themselves is one thing (and the extent to which that right can exist, and the extent to which freedom of choice can exist, when it comes to highly addictive substances, is a legitimate question in itself). But there is no ‘right’ for a company to kill people, during and after decades of claiming its actions are harmless, and profit from doing so.

    If a corporation’s actions kill people, the execs should be charged with negligent homicide at the least and murder in the worst cases. It would certainly force them to change the way they calibrate risk (“I could go to jail”, instead of “if x number of people die because of policy y, it will cost us N, but our projected profits from this course of action are M, and M exceeds N, so let’s go ahead with it”).Report

    • NoPublic in reply to KatherineMW says:

      You can’t sincerely say “the people should be allowed to choose for themselves!” while pummelling them with false information.

      It’s a good thing it’s not still election season, or the irony meter would have spontaneously combusted.Report

  7. Tod Kelly says:

    I have to say, this post may have my favorite robotweets of all time; each by Coke. My favorite so far:

    What’s your favorite happy activity? Ours is spontaneously busting a move when no one’s watching. For more ideas, see:


  8. NewDealer says:

    I know all the stuff about McDonald’s but I am the son of a plaintiff’s lawyer and now embarking on the a career in plaintiff’s law as well. My heart has always been with the plaintiff. I was never one of those law students who dreams of Big Law.

    Plinko is also right about how people react if they are not inclined to be sympathetic. Sometimes showing them pictures of her injuries helps though. Otherwise, they made up their minds and are doubling down.

    I think people like the idea of personal responsibility because it absolves any sort of group action. It allows us to live guilt free from societal failures of all sorts. This goes beyond issues of consumption. It is a very puritanical definition of freedom. Freedom is the choice to choose God’s Will and if you do not choose God, you suffer the consequences. The you in the previous sentence is general, not specific.

    Personal Responsibility is I think part of the vast problem of the Just World Hypothesis. People generally want to see the world as being moral and just. The truth is that life is random and chaotic. Justice exists in the world but so does a vast amount of injustice and unfairness. To acknowledge this puts almost every country in fault for some kind of past sin. Colonialism, Slavery, Bigotry, Poverty, etc. So now you can talk about personal responsibility for young African-American men born in poor inner-cities who join gangs instead of having a very hard and painful dialogue about the legacies of slavery and segregation and what to do about it.

    Personal Responsibility is nothing more than society sweeping dust under the rug and pretending it is not there.Report

  9. This is a fantastic post, Tod. Which is to say that I completely reject it because it does not fit comfortably in my ideological framework.

    ….Anywho, I do have one fairly minor quibble – as far as I can tell, it is not technically true that Coca-Cola has admitted that Vitamin Water is worthless. That is because this case is procedurally not very far along – just at the motion to dismiss stage. At that stage, there has been no discovery and no answer by the defendant. Instead, a motion to dismiss simply says “assuming for the sake of argument that every single thing in their complaint is true, they still don’t have a claim as a matter of law.” If Coca-Cola were to have filed a motion to dismiss arguing “we’re entitled to dismissal because our product is actually healthy,” then the motion would have gotten denied out of hand, because in this case that’s a fact question that can’t be decided until there’s been boatloads of really expensive discovery.

    Basically, arguments made in the context of a motion to dismiss should never be taken as factual admissions, because by their very nature they have to treat all factual allegations in the complaint as true. It seems likely to me that discovery will ultimately show that Vitamin Water is total crap, and defeating the motion to dismiss is in fact nothing to sneeze at, so I don’t think this really affects your main point, but I still think it’s important to note that Coca-Cola has not in fact made any admissions about the unhealthiness of Vitamin Water at this point, and that there is nothing at all out of the ordinary about the legal strategy of treating factual allegations as true on a motion to dismiss – in fact, that is exactly what a Defendant is required to do at that stage of the proceedings.

    To be sure, one of Coca-Cola’s arguments is that the term “Vitamin Water” is obviously puffery, but even that doesn’t constitute an admission that it’s unhealthy – it’s just an argument that “even if it’s true that our product is unhealthy, the claims on our packages are clearly and obviously just puffery.” I suspect that this is a fairly weak legal argument in this context, but it’s an argument that a defendant in any deceptive advertising case almost has to make if they want to avoid years of incredibly expensive discovery – even if their product is, in fact, the healthiest thing to ever hit the market.Report

    • One quick thing to add: if the motion to dismiss actually contains a statement outright saying “Vitaminwater is, in fact, garbage” as opposed to something akin to “assuming for the sake of this motion that Vitaminwater is, in fact, garbage,” then the lawyers seriously fished up. There’s absolutely no reason, on a 12(b)(6) motion to dismiss, to make a factual admission that might be against your client’s legal interest should the motion be denied (and the issue of whether Vitaminwater is, in fact, garbage is necessary to satisfy at least one element of the plaintiffs’ claims here, so it would absolutely be an admission against Coca-Cola’s legal interest).Report

      • Ugh – just saw that the decision on the motion to dismiss was from 2010. That doesn’t change my substantive points since that motion seems to be the basis for the point I was addressing, but just about everything where said the word “is” should probably be read as “was.”

        Is there a reason why Colbert just picked up on this story last week? The last report I can find on the litigation is that it went into mediation in 2011. My experience with mediation is such that this suggests to me that there’s a decent chance the case already settled, though since we’re talking about it right now, I’m going to guess not (if someone could look this up on PACER, I’d much appreciate it – I’m having trouble with my account).Report

    • This is an excellent correction Mark, and appropriately professional in the very best sense of that word. Thanks.Report

  10. zic says:

    Beautiful, well-explained post.

    (And wasn’t in John Edwards representing the plaintiff in the McDonald’s coffee case? Wasn’t it part of what was used to tar his reputation, before he did it himself?)

    I want to hone in on the:
    In the United States, we live in a legal system where corporations are awarded the same basic rights as citizens. However, unlike European countries, we do not treat purposefully unlawful or unscrupulous corporations themselves as criminals. Instead, we rely heavily on regulatory fines and civil lawsuits to both mete out justice and provide a deterrent against corporate malfeasance. Arguments can be made for or against the inherent wisdom of this system; nonetheless, it is the system in which we live. And once the Brown & Williamson documents were leaked, the system’s wheel slowly began to ramp up to a nearly twenty-year series of punitive civil and public lawsuits.

    And your closing:

    What Coca-Cola did – or what McDonalds did, or what the tobacco industry did – was absolutely, positively 100% wrong. Were they individuals and not corporations, they would all be facing jail time. They deserve to have their feet held to the fire through fines, lawsuits and bad public relations, because as I said above, those are the only deterrents we’re allowed against such corporate fraud.

    I’ve often tried to describe this using BP, as well. But: These are publicly traded companies. And big companies. In all likelihood, you own a small piece of them in a pension or money-market fund of some sort. How they do, their value, very much matters to you, to me, to all of us; it’s a part and parcel of economic stability.

    When large corporations like this commit fraud and mislead, it also harms all of us. Often the harm is spread around — contributing to ill health and increasing health care costs is often the result, sometimes grave environmental harm, as well — in a spectacular free-market failure where the price of a product does not reflect it’s true costs. And investors in the corporations are typically not made aware of the fraud being perpetrated on the public, either. Investors, that’s you and I, dont’ know about the shortcuts, the suppressed research, the smearing of reputable scientists doing good work.

    Good regulations and good regulators are crucial to preventing uncertainty; to making certain corporate boards and management are living up to the trust shareholders (who often don’t realize they’re shareholders) put in management’s hands.Report

  11. Dexter says:

    I wish I had a tenth of the writing abliliy of the posters at this site so the extent of my rage at the amorality of the corps could become clear. I don’t see much difference between the lies of big oil with their global warming obfuscation , tobacco,with their ads having doctors recommending cigs for stress, and the banks and drug money. But, with a heat of ten trillion suns I hate the management of the company that lied about oxycontin. The company admitted they lied about the hazards of that drug and only paid a fine of penneys on the dollar and none of the honchos went to jail. The first three I would hold their feet to the fire, but with oxycontin managers I would tie them to a fireant pile and dance while they screamed and slowly died. I will believe that corps are people when Texas executes some of them.
    Oh yeah, well done Mr. Kelly.Report

    • Burt Likko in reply to Dexter says:

      IIRC, Enron was executed. Not with a bullet or an injection, but with the stroke of a judge’s pen. The corporation was convicted of a felony (or several) and the sentence was the dissolution of its corporate charter so the entity was involuntarily liquidated. This is the equivalent of capital punishment for a corporation. Now, I don’t think it was the state of Texas that did this, because I was under the impression Enron was either a Nebraska or a Delaware corporation. But whatever state it was that issued Enron’s articles of incorporation, that’s the state that ended them, too.

      If you were to say, “Burt, this was a very rare and exceptional event, and criminal prosecutions against corporations are far too rare and this sort of power should be exercised or at least threatened more often,” that’s one thing. I’m not defending Enron or HSBC or even Coca-Cola here and I’d agree that the most recent big business outrage, the HSBC thing, was indeed a gross miscarriage of justice. It won’t take much persuasion to get me to agree with the proposition that criminal prosecutions against corporations for morally outrageous violations of the law should be initiated and pursued much more often than they are. You don’t even need to refer darkly to the likelihood of corruption influencing those decisions to get me to sign on to that part of the equation.

      But I do wonder why it’s okay to argue for aggressive prosecutions and potentially stiff punishments, as well as for imposition of massive civil verdicts, against big evil corporations like Coca-Cola because like the rest of us do, sometimes Coca-Cola says things that aren’t 100% true in order to portray itself in a positive light — but it’s not okay to argue for aggressive prosecutions and potentially stiff punishments against handsome young people like Aaron Swartz who apparently should be called “activists” and “civil disobedients” instead of “thieves” when they not only break the law but encourage others to do the same. Maybe someone can help me out with that.Report

      • greginak in reply to Burt Likko says:

        How much hurt/damage did Swartz cause? I think he should have been prosecuted since it appears he broke the law but the penalties seemed way over the top. When a big corp gets taken to court its usually for having caused some big/serious harm to many people.

        I’m not really sure what an “aggressive” prosecution is since i’m also not really sure what a mellow or peaceful prosecution looks like.Report

      • Dexter in reply to Burt Likko says:

        Burt, Thanks for the reply. I have very little animosity towards Coke. I have heard some things about them hogging the water near a plant in Mexico, but if you can convince people to pay 12 dollars for a gallon of water and a dash of some chemical that taste like rasberries then go for it, but the damage some of the corps do to the gazelles is, if not criminal, then highly amoral and should be criminal.Report

      • Mike Schilling in reply to Burt Likko says:

        Compare the damage done by Enron to that done by Swartz, and then compare the severity of the sentences. Something does not compute.Report

      • ian351c in reply to Burt Likko says:

        I am also a great admirer of the writing talent here on the League, but not all that articulate myself. At least not at the level of you guys. But hopefully I can add something to the discussion anyways…

        My understanding of the Aaron Swartz case leaves me with the impression that civil disobedience on the Internet can lead to a 50 year sentence whereas civil disobedience in the real world will usually lead to nothing more than some pepper spray and a night in jail. I haven’t followed the case very closely, but it fits the pattern of “computer crimes” carrying (grossly, IMHO) greater maximum sentences than the equivalent physical crime. I wonder what would happen if the potential penalty in the Coca-Cola case (or perhaps if a class action was brought on the same topic) was that Coca-Cola would lose all the productivity of the vast majority of its existence?

        On a related note, some of the reading I have done on the Swartz case has been around the topic of plea bargaining. Several of the articles I have read make the case that the maximum sentences (especially for computer and drug related crimes) give prosecutors an unfair advantage. I was wondering what views the League might have on that topic (not to threadjack…).Report

        • RTod in reply to ian351c says:

          No worries on the thread jack. I’m going to ask Burt or Mark to address your question of they’re around, since it’s pretty far out of my bailiwick.

          Just dropping in quickly to tell you that you are in no way inarticulate. Not even close. Comment more, please.Report

        • Burt Likko in reply to ian351c says:

          Bear in mind that I seem to be in a minority position as thinking that what Swartz did was more than a de minimis problem. That contention does not completely dispense with the claim that 30-35 years would have been disproportionate to the gravity of his crime, though.

          Prosecutors typically assume, for all kinds of crimes, the posture that if you don’t take the plea deal they offer, they will go for the maximum possible sentence. That incentivizes you to take the plea deal seriously. In theory that is not particularly problematic. When the maximum sentence is really high a defendant ought to take plea deal offers seriously.

          Elsewhere in a different thread I believe it was Mike Schilling who indicated that a plea deal for less than a year in custody was available to Swartz. Such a result seems favorable to Swartz from where I sit and perhaps a little less so to those who see less harm in his conduct than I do. It would be difficult to say a sentence of less than a year would have been unjust, IMO.

          The issue is whether the prosecutors should have had such heavy sentences to threaten in the first place. That accusation is more properly directed at Congress than a prosecutor (again IMO) because Congress wrote the laws and Congress shackled judges’ discretion about sentencing. From there, prosecutors did what prosecutors do: they used the leverage available to them to pressure a plea bargain.

          Is this an “unfair” advantage? Prosecutors have several advantages and defendants have some too, all built in to the system. Whether they are “unfair” or not is perhaps not something that it takes a lawyer to decide.Report

      • Kim in reply to Burt Likko says:

        Yeah, yeah, yeah. If taking of information, that costs you nothing, without your consent is a crime, I’ve got a WHOLE LONG LIST of people you can prosecute. Lotta big corporations on there too.

        But see? If I was to start talking, that would make me the thief. (which, one figures, is one of the reasons why wikileaks was invented. So that Mitt Romney would have to pay his taxes).Report

  12. Nob Akimoto says:

    Shaping preferences is a large part of what corporate PR is meant to do. They do it very very well. The discussions of utility seem to assume that this preference shaping doesn’t occur, which strikes me as very odd.Report

  13. Wardsmith says:

    Fraud is generally defined in the law as an intentional misrepresentation of material existing fact made by one person to another with knowledge of its falsity and for the purpose of inducing the other person to act, and upon which the other person relies with resulting injury or damage. from here

    So the injury or damage here is that people drink vitaminwater and get fat? Are short on vitamins? Caveat emptor have any place in jurisprudence today?Report

  14. Burt Likko says:

    I don’t think it’s accurate to say that Coca-Cola’s defense so far has been that people stupid enough to believe their claims deserve to be fleeced. Their defense seems to be that they did not actually make those claims in the first place. To reach this conclusion, I read the linked opinion, which was the court’s ruling (mostly) denying Coca-Cola’s motion to dismiss the lawsuit at an early stage of the case. Bear in mind that this motion assumes the plaintiffs’ allegations to be true and construes any ambiguities in favor of the plaintiffs and against Coca-Cola. But what we’re looking for is what Coke argued, not whether they were right about it.

    First, on page 31, the court addresses Coca-Cola’s motion to dismiss on the grounds that the plaintiffs did not allege that a reasonable consumer would be tricked by the wording on the label and the presence of the accurate nutritional panel and ingredients lists. The Court said no, a reasonable consumer might have been tricked into thinking the product was healthy by the labels. Searching for evidence of whether any were actually tricked or not is what will happen next in the case. What Coca-Cola argued here was really “What we put on our labels was not deceptive,” and the Court said back, “No, someone might have been decieved.”

    On page 35, we see a direct reference to a second contention: Coca-Cola’s attorneys argued that because the product is very sweet, a reasonable consumer would know that it was sugary as soon as she started to drink it. The court rejected that claim out of hand, but not for the reason I instantly thought of — I’d have flown by that claim because sugar is not the only substance that might be used to sweeten a beverage. But there were other, more technical reasons like no one offered the judge any evidence that the product is actually sweet to the taste, and many products have sugar added to them but are not considered to have a sweet taste. The judge used the example of ketchup, which I think is a great one since ketchup tastes sour to me, not sweet, despite HFCS being the plurality ingredient in most commercial brands.

    Finally, on page 36, there is the obligatory inquiry into whether the claims about the product made by the labels are mere “puffery,” which is permitted, or are specific enough to constitute an assurance of quality upon which a reasonable consumer might rely. Puffery are statements like, “The Canyonero is a great family car,” or “Big Belly Burger: that’s a mighty tasty burger.” This actually comes the closest to your characterization of the argument because puffery is not a verifiably provable or disprovable claim at all about the product but simply the association of the product with positive words and concepts (what exactly are the objectively-measurable characteristics of a “mighty tasty burger”?), so it’s not reasonable to rely on them.

    None of these arguments can be fairly characterized as “people stupid enough to believe [our] claims deserve to be fleeced.” I think they are fairly summarized as 1) we weren’t dishonest about the fact that we’re selling sugar water, 2) the product is obviously sweetened, 3) our label does not make specific enough claims about the product to constitute false advertising.

    The motion was granted as to a few claims from a few of the cases for more technical reasons than these, but mainly the motion was denied. Keeping the bulk of the case alive was the right decision, IMO. The claims on the labels do look problematic under the various legal standards described. But I don’t have any particular fault or blame or moral condemnation to make on Coca-Cola for making those arguments to try and respond to the lawsuit. They seem like pretty normal kinds of arguments to me.

    Also, we presumably don’t have a problem with Coca-Cola making and selling sugary beverages in the first place. The problem here derives from Coca-Cola allegeldy representing them to be something they aren’t. And Tod’s post is intended to point out that arguing about consumer choice is a sidestep from the question of whether a product is represented to be “healthy” (the opinion gives a very detailed description of what that claim really means, much more precise than anything in yesterday’s thread) when it isn’t.

    The opinion Tod linked to was handed down in July of 2010. So that was two and a half years ago. I don’t know what the posture of the case is now.Report

    • Michael Drew in reply to Burt Likko says:

      Burt, I’m curious, legally does it matter whether claims about products like the ones Tod describes Coke having made appear on the product label as opposed to in other advertising? Is there a higher standard of accuracy for claims that appear directly on the product rather than, say, in a TV commercial?Report

      • Burt Likko in reply to Michael Drew says:

        I’d have to do a lot more research before I felt comfortable answering that question. I can say that the medium matters because the court concerns itself with the impressions an average or reasonable consumer would have — and in some kinds of consumer protection law the court concerns itself with consumers euphemistically described as “unsophisticated” or “simple.” The opinion Tod linked to in the OP contains some very complex and technical analyses, the likes of which I am not readily familiar, so I will have to say that I think you’re on to something here but I suspect the standards are better described as different as opposed to higher or lower.Report

    • Roger in reply to Burt Likko says:

      When I read Tod’s post, my initial take was that corporations should be punished when they lie about a product. Then I read the responses, and it now appears Tod is the one who is stretching the truth.

      The labels clearly reveal that the amounts of these vitamins are not meaningless or minuscule. One hundred percent of the daily adult requirement is not meaningless or miniscule. Thus Coke clearly is not just selling colored sugar water. They are selling colored sugar water with vitamins added. Nor is Coke defending the case by arguing that people stupid enough to believe their claims deserve to be fleeced. In other words, Tod is exaggerating his case.

      I am not familiar with all of Coke’s marketing or their internal communications, so the jury is still out on whether Coke did or did not defraud.

      But here is a question. Which has been more deceptive: Coke in its packaging and marketing, or Tod and this post?Report

      • Glyph in reply to Roger says:

        Roger, it’s worth noting that the vitamin amounts on my bottle do not appear to be representative of every variety; not sure if that is just due to product line differentiation, or whether the bad pub. has caused VW to boost the amounts.

        So I don’t know if I would call the OP “deceptive” – but it certainly appears to be a polemic, which presents certain things much more unambiguously or hyperbolically than seems warranted – in particular, these sentences jump out as overstating the case:

        “All of this is entirely fictitious; none of this is remotely true by any conceivable measure.”

        “erroneously marketed as a kind of delicious over-the-counter medicine.”

        And last but by no means least, the entire framework of comparing sugar water, aka “placebo”, to an addictive carcinogen (and, failing to compare it to a like product such as Gatorade). This, in my view, is nearly the definition of “false equivalence”.

        I like and respect Tod, and I have no doubt he feels passionately about this, and it’s an extremely well-written polemic; but it’s a polemic all the same, AFAICT. I appear to be in the minority, though, so maybe it’s my day to be League loony.Report

        • Kazzy in reply to Glyph says:

          I just checked out the VW website and they have a PDF that breaks down the nutritional content of all their drinks. It seems each one has a unique formulation leading to varying amounts of particular vitamins in each drink. Many have 100% of a given vitamin, and even though they use a lot of fancy language for sugar in the ingredient list, it is still pretty clear that there is a host of sugar present when each serving has 33 grams of carbs and 32 or 33 of that is sugar. Surprisingly, there is no sodium, which is actually a pretty useful thing to have in a drink for a lot of folks.

          The questions, to me, are:
          1.) Does the presence of these vitamins actually mean anything? Are they absorbable by the body when drunk in conjunction with a bunch of sugar? If so, do they do anything for your body?
          2.) Presuming there are benefits to the presence of these vitamins, how do the benefits compare to the harm done by the sugar and other less-desirable ingredients?

          I ask because if the vitamins either A) do nothing or B) are outweighed by the sugar, thus making VW an “unhealthy” drink, than any VW claims to it being healthy are indeed troublesome. Of course, we can then get into the weeds on what it means to be “healthy”.

          But I don’t think the presence of vitamins necessarily bolsters Coke’s case if the vitamins don’t actually do anything AND if Coke claimed that they do.Report

          • Burt Likko in reply to Kazzy says:

            Those are issues the linked opinion gets into, in exacting detail.

            I can tell you that my immediate consumer impression of a product named vitaminwater is that if I drink it, I will get the equivalent of taking a multivitamin pill. That’s if I don’t read the label at all, just a reaction to the product name.

            Maybe I’m one of those “unsophisticated” or “simple” consumers the law worries about.Report

            • Glyph in reply to Burt Likko says:

              So Burt – assuming you got my bottle:

              150% C
              100% B12
              100% B6
              25% Zinc
              100% B5

              That look like “multiple” “vitamins” to you?Report

              • Burt Likko in reply to Glyph says:

                I’d have expected 100% of nearly every vitamin the FDA had announced guidelines for. This is my daily dose of vitamins. On your label, the reality would be my daily dose of four vitamins. “Four” is not the same thing as “nearly all” to me. YMMV.Report

              • Glyph in reply to Burt Likko says:

                Does the fact that it’s not called “multivitamin water” make any difference? Isn’t something called “Vitamin (singular) Water” exceeding expectations by containing multiple vitamins?

                When you go to the store and see a bottle marked “vitamins”, do you expect for it to contain multivitamins?

                Or do you look for one marked “multivitamins”?

                You see where I am going with this. If we want corps to say what they mean and mean what they say, we may have to occasionally accept that if something called “vitamin water” contains significant percentages of both a (multiple, actually) vitamin(s) and water, well….Report

              • Burt Likko in reply to Glyph says:

                I understand this, but there’s all sorts of ways to tell literal truths while simultaneously conveying untruths. Which is what false advertising is all about.

                “Wendy’s: We don’t know about those other guys, but our burgers have actual beef in them.” (Bonus: includes implicit commercial slander of competitors!)

                “Coors Beer: contains important nutrients needed for human survival!” (Literally true.) “Drink Coors, and be healthy.” (Technically, possible to do.)

                “More than 99% of people who get into accidents in Ford vehicles survive. Shouldn’t you pick safety for your family? Buy Ford.” (Bonus: includes puffery and slogan can be superimposed on cynically scary images, like an adorable child clutching a parent’s hand while crying at a funeral.)

                …And so on, with all sorts of potential for amusement and/or outrage. Point is, it’s child’s play to engage in cynical deception while using only combinations of literally true facts and utterly meaningless statements. There needs to be some standard other than literal truth.Report

              • Will Truman in reply to Burt Likko says:

                As mentioned, I come at it from the opposite side. I wouldn’t expect a multivitamin because it calls itself vitamin something. But because it calls itself water, I would expect it not to be a glorified sugar drink.Report

            • Shazbot3 in reply to Burt Likko says:

              Yeah, this is my problem to.

              In natural language, to call some product “a vitamin” (and not “my vitamin B12 pills”) is almost always to call it a multi-vitamin that includes the fat soluble vitamins and some exposure to most of the vitamins that you need. This is the narrow use of the term “vitamin” that we usually use.

              Clearly, if we called any substance with any vitamin content “a vitamin” or “vitamin water” or “vitamin food”, then virtually everything but water (and sadly Coca Cola) would be a vitamin, including donuts, including awful unhealthy drinks like “Hi-C”. Under a broad definition of “vitamin” almost everything counts as a vitamin.

              Coke is intentionally using this distinction between the narrow use of “a vitamin” (multi-vitamin) and the broad use of “vitamin” (anything with any vitamin content) to confuse and deceive the public into thinking the product is a “vitamin” in the narrow sense. I am not sure that this amounts to fraud, precisely because the low vitamin content is on the label, but it is close to fraud, as labeling a pill that contained 2 or 3 vitamins, say B6 and C, in fairly low doses just a “vitamin.”Report

      • Burt Likko in reply to Roger says:

        I acquit Tod of the charge of dishonesty. Where in my comment above I point out that he did not accurately condense Coca-Cola’s arguments in a particular motion, this does not mean that Coke did not make the argument Tod describes in some other facet of the lawsuit. Yes, the argument it seems to me Coke did make (“The label doesn’t say what you say it says”) is different from the argument Tod described (“If you believed the label, then you deserve the health effects of the product”).

        But inaccuracy is not deception. Tod phrased the condensed argument in a dramatic sort of way, sure. But it’s easy to get things wrong about law because, unfortunately, the law of necessity uses highly technical language which has nuances that can be readily misunderstood even by people of good faith and superior intelligence. Examples of people of superior intelligence who in good faith have misunderstood the nuances of complex legal arguments I or opposing counsel have made include folks with job descriptions like “attorney” and “judge.”

        The central thesis of the OP is pointing out that the argument about “consumer choice” being what matters is a ruse conjured up by clever PR people. Objectively, to say consumers ought to have a choice about what they consume does not acquit a company of the charge of misrepresenting its products to those consumers. Normatively, it’s at minimum worth consideration that if a company sells poison to its customers perhaps we ought to ignore an appeal to the fact of the consumer choosing that poison. You don’t have to agree with this thesis or its implications. But I don’t think it’s a deceptive argument.

        Serve the guy up a slackburger with cheese. “Not quite right” does not equal “dishonest.”Report

        • Glyph in reply to Burt Likko says:

          Or, what Burt said. 🙂

          Can I just point out, as Tod is pointing out a narrative of Coke’s PR dept supposedly pushing for a narrative of “consumer choice!” and criticizing this, that he appears to be pushing the alternate narrative of “huge corporations are lying and trying to kill us all” (always a popular one; as you’ve seen enough sci fi movies to attest).

          Coke has no doubt done, and will do again, shady things. But Weyland-Yutani it ain’t.Report

        • Roger in reply to Burt Likko says:

          LOOG test. True or false (or exaggerated):

          1) One hundred percent of the daily requirement of vitamin C is meaningless or minuscule?

          2) A drink with colored sugar water and added vitamins is “just colored sugar water”?

          3) Coke’s defense is that “people stupid enough to believe their claims deserve to be fleeced.”?

          I am not qualified to argue his claims on whether vitamin C is good for our immune system or at fighting free radicals, but if this is Tod’s argument, my question is why is he picking on Coke rather than the entire vitamin and health store industry.

          This post is the equivalent of sucker punching someone accused of sucker punching. Most of those praising this post are in effect praising Tod’s bringing falsity to power.Report

  15. Mark Thompson says:

    This, too.Report

  16. George Turner says:

    What stumps me is why someone would brand Coca-Cola’s actions as immoral when Coke only acquired the brand seven years after it had become well established, one of many start-up “health” drinks that make equally dubious claims. If you applied the same standard you could lynch half the organic food industry because their food isn’t any more healthy or nutritious than the off-brands at Save-A-Lot, despite all their marketing hype.Report

    • RTod in reply to George Turner says:

      Wow. Really?

      Coke makes fraudulent statements about a product, but it’s “moral” because they didn’t develop the product on their own?Report

    • Mike Schilling in reply to George Turner says:

      Did Coco-Cola change the drink’s formula after acquiring it? As an independent brand, Barq’s was a delicious root beer, something I used to look forward to whenever I visited the South. Coke turned it into generically over-sweet blandness.Report

      • Glyph in reply to Mike Schilling says:

        IBC or GTFO.Report

      • I didn’t know that Barq’s was ever genuinely different. I know that I preferred Barq’s because its cans looked genuinely like beer cans and that was kewl. (Somewhere in here there is a tie-in between Barq’s and the candy cigarettes WillH and I are discussing below.Report

        • Glyph in reply to Will Truman says:

          IBC actually uses dark brown bottles that do look like beer bottles. I was drinking one in my cubicle one day and a co-worker rounded the corner and did a pretty good double-take. (I keep the good stuff in the desk drawer, of course) 😉Report

          • Mike Schilling in reply to Glyph says:

            I’ve had the same reaction with Reed’s ginger beer.


          • Glyph in reply to Glyph says:

            Maybe I should claim to be defrauded, since the IBC bottle clearly implies “delicious medicine”, AKA beer.Report

            • Glyph in reply to Glyph says:

              Plus, keeping the word “beer” in the product name is clearly deceptive;-)Report

              • Glyph in reply to Glyph says:

                I’ll stop beating this horse soon, but I just saw him twitch, so:

                Coca-cola: not deceptive, despite containing no coca anymore

                Root beer: not deceptive, despite not being what we think of as “beer” today, and potentially enticing children to alcohol

                Vitamin Water: clearly a menace to the republic, despite basically being Kool-Aid both literally and metaphorically, and containing both “water” and “vitamins”Report

              • Stillwater in reply to Glyph says:

                I’ll stop beating this horse soon,

                Straw horse. And I somehow don’t think so. Burt and Hanley have already laid out the distinctions that matter here. It’s the difference between opinion-based fluff and factual-based assertion. “Coca-cola” and “Coke” are names, pure and simple. As is “vitaminwater”. They aren’t assertions. “Powers your immune system,” and “helps fight free radicals to improve your body” are.

                If you can’t keep that distinction in mind, then you really are arguing straw – and missing Tod’s point while you’re at it – and you will keep riding that horse.Report

              • Trumwill in reply to Stillwater says:

                A number of people are taking issue with the name, though. (Including myself, though more for the “water” part than the “vitamin” part.) He didn’t say that was the totality of the argument.

                The issue for the specific claims that you outline involve whether or not they can make that claim by virtue of the water content and/or vitamins included. That’s the part that remains to be seen.Report

              • Stillwater in reply to Trumwill says:

                In contemporary language the product name “vitamin water” is intended to appeal to the connotation of that term as it’s popularly used and understood. That in itself might be a form of misrepresentation since the name’s efficacy in generating sales is based on, and (arguably) takes advantage of, people’s already established and currently held associations of what the term means. But that’s a different issue than making factual claims about a product’s benefits.

                It also seems to me that analogizing the names “coca-cola” and “vitaminwater” fails on a bunch of levels, one of which being that at the time the name “coca-cola” was introduced, the beverage did in fact contain the additive conventionally referred to as “coca”. Vitaminwater, it seems to me, doesn’t.

                But even that misses the bigger point here, I think, one which Burt touched on earlier. If the argument Glyph and others are putting forward is sound, it’s based on legalistic hair-splitting of the meanings of terms. But legalese is – as Burt mentioned – a very technical language. (It’s the most technical language I’ve ever read.) It’s not natural language. And argument regarding truth in advertising – at least in the case of vitaminwater – presupposes that advertising uses natural language. So if terms with conventionally agreed upon meanings are being used in unconventional ways (ie., technical ways) without any indication that that’s the case, then a charge of false advertising or deception seems justified.Report

              • Will Truman in reply to Trumwill says:

                Which is a fair argument. I took issue with your accusation towards Glyph. He was talking about the name that others were complaining about and comparing it to names we are presumably okay with and essentially asking the difference. This comment addressed that. Your previous one didn’t and (to me) implied a degree of dishonesty and/or bad faith.Report

              • Glyph in reply to Stillwater says:

                Want to talk straw? How about the post title? Has anyone here, at any point, argued that personal responsibility should excuse corporate malfeasance? What we are debating is whether it is in fact malfeasance.

                Tod argues it is, and compares it to the situation surrounding an addictive carcinogen with zero nutritional value about which we have documented evidence of long-running deception; I submit this is false equivalence to a product which is, and I will say it once more, sugar water aka “placebo”, with no such definitive evidence of deception (the label tells you what’s in it, and I suspect the marketing rhetoric is ultimately technically true, and in any case not significantly different from similar product in composition and marketing Gatorade, in fact possibly slightly better.)

                You want to respond to any of that, go right ahead; but I see Tod addressing me below, so I will jump down there next and don’t know when I’ll be back. But seriously, do me the favor of at least treating my arguments with some thought. If I sound defensive I’m sorry, I was up almost all night with a toddler and am tired and this just rubbed me wrong.Report

              • Stillwater in reply to Glyph says:

                I submit this is false equivalence to a product which is, and I will say it once more, sugar water aka “placebo”, with no such definitive evidence of deception

                The products aren’t equivalent in terms of potential for harm or egregiousness of misrepresentation. Did Tod ever say they were? His argument is that the behavior in marketing and then defending these products can be equated.

                You dispute that there’s definitive evidence of false advertising. Definitive is a pretty high standard here, I think, one that never obtains. Even in the case of the tobacco industry.Report

              • Glyph in reply to Glyph says:

                Still – (can’t sleep, so tired) 🙂

                His argument is that the behavior in marketing and then defending these products can be equated.

                And I submit that that equation is itself irrelevant, and attempting to make it therefore smacks of false equivalence (or some other fallacy, you’re smarter than me).

                ForEx: If you and I are discussing the Civil War, one extolling (or “marketing”) the north and one the south, and we are equally matched in rhetoric and persuasive powers and logic, each of us basically just subbing in the word “north” or “south” as needed to the otherwise-exact-same argument – well, one of us is still talking BS (as were the tobacco companies) and one is not. That is, the facts of the case are relevant, not the similarity in the rhetoric used to present a positive argument or defense.

                And if we then go on to discuss some OTHER topic, the one of us who had the wrong in the last argument, doesn’t necessarily have the wrong in the new one. Again, the current facts are the thing.Report

              • Stillwater in reply to Glyph says:

                Again, the current facts are the thing.

                You’re not disputing the facts, Glyph. You’re disputing the conditions under which the determination that what Tod views as a fact obtains. And that’s legalistic hairsplitting.

                I mean, if what your saying is correct, then apparently the CC had no reason to name their product “vitamin water”, since all the “facts” about the drink are clearly written on the label. I mean, they could just as well have named the product “HighFructoseCornSyrupWithSomeVitaminsAddedWater” without any appreciable reduction in sales.Report

              • Glyph in reply to Glyph says:

                Still – don’t know if you will see this, I know this thread has gone a bit cold. My time is so short right now. I actually started a post that would try to better elucidate what I am getting at, but not sure how far/fast I can get with it rt now. Comments are time-consuming enough.

                Tod – if you are reading this – Maybe the next Symposium could be “Advertising in America”? If it’s far enough off I might be able to get something together, but no promises today.

                What Tod views as a fact

                This is, to me, the nub. Tod is in the OP saying, paraphrased, don’t get distracted by arguments of “choice”; because that argument is just that, a distraction from the real issue, malfeasance or lying.

                And this is fine as far as it goes; I am still on board with him at this point.

                Where the OP goes off the rails, IMO, is in the inclusion of the tobacco companies as more than an example or aside; approximately 1/3 of the OP is devoted to them. This is the product-safety equivalent of Godwinning the convo; the tobacco companies are such well-known black hats that some of that “evil” rubs off on Coke and VW.

                And bang – just that fast, we lose sight of the facts (that tobacco is nothing like sugar water, nor has VW yet been shown to engage in tobacco-level shenanigans; that there is as yet no strong evidence that VW’s claims are false; that the OP makes no attempt, other than strongly & repeatedly calling VW’s claims false, to disprove their veracity).

                IOW, in a post where Tod is saying, in essence, “don’t get distracted!”, he himself is unintentionally providing a HUGE distraction from the nub.

                The nub is: are the VW claims false?

                For example, Tod strongly condemns the “free radicals” claim.

                I have done very, very brief Google searches just now on “hydration eliminates free radicals” and “is Vitamin C an antioxidant” (antioxidants are implicated in fighting/preventing free radicals) and you know what? I’m no scientist or lawyer, but there appears to be at least some evidence for hydration assisting in free radical elimination, and C definitely appears to be an antioxidant.


                So, since we are discussing a beverage that is largely water (which hydrates) and contains (at least on my bottle) 150% Vitamin C, I suspect that such a claim is at least marginally true, or at least not outright demonstrably false. If you or Tod have evidence otherwise, please present it.

                …they could just as well have named the product “HighFructoseCornSyrupWithSomeVitaminsAddedWater” without any appreciable reduction in sales.

                Well, of course they named the product what they did because it sounds good and would sell. Why wouldn’t they? It’s not a lie IMO – if anything, it’s LESS of a deception than most other product names (therein, perhaps, lies its diabolical genius – they “lied” to us by hiding in plain sight! The bastards!)

                Do you get upset when you order “Chicken and Dumplings” at a restaurant, expecting a healthy home-cooked-style meal, and what you are really served is “Chicken and Dumplings and Lots and Lots of Salt and Likely Butter Too”?

                Or is the delightful taste of that restaurant’s dish exactly WHY you went there instead of making this relatively simple dish at home, of course accompanied by one (1) glass of water and one (1) multivitamin, followed by a sugary dessert of your choice?Report

              • George Turner in reply to Stillwater says:

                Actually, Coca-cola still contains a trace amount of coca extract. There is only one company legally allowed to import coca leaves and just to be thorough, the DEA paid them a visit some years ago to examine their books and see who might be legally using cocaine. Pretty much their only major customer was the Coca-Cola company, which adds a flavor extracted from the coca leaf to maintain their trademark protection. The amount is so small it would take a highly sensitive spectrometer to find it, though.

                The only other people who can use cocaine legally are dentists, since it’s proved very useful as a painkiller that causes blood vessel constriction, and thus bleeding. However it is rarely used, probably only in special cases of patients with strange sensititivities to everything else.

                My earlier point about singling out Coca-Cola for misbehavior is that they simply bought an already existing and successful brand, developed and popularized in New York City, among New York’s “health-conscious” population of “sophisticated” suckers. The product was already hyped and marketed like all the other start-up health drinks, which are all sugar water (whether from cane sugar, HFCS, beet sugar, acacia honey, or agave nectar) + vitamins, amino-acids, herbs, flavors, and extracts, which are sold at Whole Foods, Trader Joe’s, and Quickey-Marts.

                The same thing applies to all the energy bars which claim all sorts of amazing health and performance benefits, yet could just as well be marketed as oatmeal chocolate chip raisin cookies. Nobody is going after all those small start-ups producing junk that fills the aisles down at the health-food co-ops, but apparently if Coca-Cola, Kraft, or Nabisco buys one of them, suddenly the product is evil and fraudulent. Is it about the ingredients, the claims, or simply that some people are upset by big corporations?Report

              • Wardsmith in reply to George Turner says:

                George, actually ophthalmologists use cocaine quite a bit (or used to). My neighbor is one and she told me that although it is probably the very best analgesic in her repertoire the paperwork hassles make it virtually impossible to use in a normal practice.

                Fun fact (years ago, not sure about today). An OUNCE of 100% pure medicinal quality cocaine went for $35. She still has some from the ounce she bought a couple of decades ago. It only takes a few drops to numb your eyes perfectly.Report

              • Jaybird in reply to George Turner says:

                Bassists, too. (RIP, Entwistle!)Report

              • Kim in reply to Glyph says:

                the original drink was root tea, and was perfectly alcoholic.Report

        • Mike Schilling in reply to Will Truman says:

          This was when I used to install systems at the Pascagoula refinery, so before about 1986.Report

          • You did some time in Pascagoula?Report

            • Mike Schilling in reply to Will Truman says:

              My first job out of school was doing refinery automation for Chevron, We’d build systems in the Bay Area, and then travel to the various refineries (Pascagoula, El Segundo in LA, Salt Lake City, Perth Amboy, etc ) to install them. Never Hawaii, though: the boss always handled that one personally I shouldn’t complain, though. The previous generation of systems was built on-site, so instead of a few weeks in, say, Pascagoula, it was most of a year.Report

              • George Turner in reply to Mike Schilling says:

                I do factory automation and made the same observation about installations in Hawaii or the Carribean. Those jobs never seem to make it down the chain to sub-contractors, and seem to be done in-house by senior management.

                The closest I got to an exotic overseas job was a peanut butter factory just outside the Korean DMZ when it looked like the war might start up again. I said, “Great, I’ll lay down my life defending the jar filler on the cruncy line, using the label applicator as cover.” Fortunately we didn’t get that one.Report

      • Roger in reply to Mike Schilling says:

        Once again we disagree, Mike.

        Diet Barqs Root Beer is the greatest beverage ever marketed, though just slightly better than Diet A&W.

        I could care less if you progressives get all our guns, but keep yer mitts off my diet root beer.Report

        • Mike Schilling in reply to Roger says:

          Quite seriously, you’d like the older stuff even better.Report

        • BlaiseP in reply to Roger says:

          Oh, please. We progressives are all about improvements. Denied local root beers, it’s Barq’s or nothing. What’s to be improved upon? De gustibus, etc. notwithstanding, root beer is one of those aspects of life which must not be trifled with or attempts made to improve upon the un-improvable.Report

          • Jaybird in reply to BlaiseP says:

            Let me know when the Progressives successfully manufacture a hard root beer.

            Edit: and “they did it in Wisconsin, you can get it there” does not meet the definition of “successfully”. It must be made available in Colorado for that.Report

            • BlaiseP in reply to Jaybird says:

              This is highly unlikely, given that this is the state which gave the world Coors Beer, all of which should be poured back into the bears from which it emerged.

              Root beer and absinthe are a wonderful combination, though a spiced rum is the usual route to fortification.Report

              • Jaybird in reply to BlaiseP says:

                Coors in the yellow can isn’t so bad…Report

              • Will H. in reply to Jaybird says:

                George Fix goes into this thing in the section on yeast in Principles of Brewing Science.
                The only reliable way to tell Coors from Bud in blind taste tests is by the residual yeast by-products. (because there’s so little of everything else in there, and then they strip it with two-stage micron filters)
                Coors has a slight pineapple taste, and Bud has a slight apple taste.

                An apple taste is generally considered as a defect in a lager (diacetyl).
                Pineapple flavors are more often associated with high temp ester production. Sorta odd that it would be present in a lager.Report

              • BlaiseP in reply to Will H. says:

                I’m sure this makes me sound snobby but I remember that horrible phase where Coors was cool. So was John Denver. Horrible, horrible times. I remember tasting Coors and thinking it was just repackaged Budweiser, only with a different aftertaste.

                The worst commercial beer, ever, was Michelob. Mob Chile, we called it: its anagram.Report

              • Will H. in reply to BlaiseP says:

                Michelob does make a good porter, for being mass produced.Report

              • Tod Kelly in reply to BlaiseP says:

                Wait – a Michelob porter? And you’re calling it good, here on my threads?


                I’ll have to double check, but I’m sure there’s something in the commenting policy that outlaws such statements.Report

              • Will H. in reply to BlaiseP says:

                I was surprised as well.
                It’s not as good as Anchor, or any number of microbrews (and could never touch my own outstanding porter); but for a mass produced porter, it’s probably the best I’ve had.Report

              • Glyph in reply to BlaiseP says:

                I actually had reason recently to make a Coke/absinthe cocktail, and despite looking disgusting, it was actually quite tasty. I imagine root beer would work even better.

                My fav. deli uses Zapp’s but I usually get either the BBQ or sour cream/onion. I’ll look for that one next time.Report

      • BlaiseP in reply to Mike Schilling says:

        Abita makes a superb root beer down here in Louisiana.Report

  17. Caleb says:

    What Coca-Cola did – or what McDonalds did, or what the tobacco industry did – was absolutely, positively 100% wrong. Were they individuals and not corporations, they would all be facing jail time.

    This is far from apparent. On what theory would a person who performed similar actions be held criminally liable?Report

  18. Will Truman says:

    I still need to learn more about the Coca-Cola case to come to a position.

    I’ve come around on the tobacco lawsuits. Those were largely righteous. There are aspects I am less than comfortable with, but the lies upon lies and regardless of whether I think they should have been believed, they shouldn’t have been uttered.

    I am unmoved on McDonald’s, however. Largely for the same reasons that similar lawsuits were dismissed.Report

    • Will H. in reply to Will Truman says:

      Remember those candy cigarettes that you used to see back in the 70’s?
      Those were promotional items. Somebody decided to sell them, and it caught on.
      By that time, they had determined that cigarettes were addictive behaviorally beyond being addictive merely as a chemical agent.

      That’s what changed my mind about the whole “poor widdle tobacco company” thing.Report

      • Will Truman in reply to Will H. says:

        They were still selling the candy cigarettes when I was a kid in the 80’s. A few years ago I was reminded of them and thought for a split second “I wonder why they stopped making those?”

        It did not take long to figure out why they stopped making those.

        Then at some point I got curious again and discovered that they are, in fact, still being made.Report

      • Jaybird in reply to Will H. says:

        They still make/sell them. The easily accessible ones are now called “Candy Sticks” and you can find them around Halloween to hand them out. The ones that are still packaged as “candy cigarettes” are only available at specialized candy stores (and, of course, the web). When I find them, I tend to buy a pack and give them to friends with kids. “Hey, give these to Charley.”

        The friends’ eyes tend to get huge and they say something to the effect of “NEVER IN A MILLION YEARS!” and then “I used to love these” and then, of course, the friends eat them.Report

  19. Miss Mary says:

    I sure know how to ruin a good time by ranting about injustice. I hope this topic never comes up at game night with my friends or while I’m on a date or something. People purposly misleading others so they can make a profit is… Going to make me lose faith in humanity.Report

  20. LWA (Liberal With Attitude) says:

    There is another way to look at it, aside from protecting consumers against corporations.
    Namely that enforcing truthful claims is good for business in the long run.

    Look at the comments made here- Glyph confidently asserting a belief in Coca Cola behaving truthfully, absolutely convinced that they couldn’t risk lying, could they?

    We live in a world where for most of the past few generations that was true- there were restrictions on false advertising, consumers had the ability to seek redress against fraud, and generally speaking if you saw a claim, you could purchase it confidently knowing it wouldn’t be rat poison, it would do at least somewhat of what it claimed.

    So no one here really has any personal experience with the opposite- which is why we all speak in bland hypotheticals and thought experiments.

    But of course our great grandparents, or distant relatives in 3rd World countries know differently. They lived in worlds where you really had no idea whether your medicine was effective or if it was contaminated with benzene and you had no redress if it was.

    So they behave differently than we do. They typically only purchase from a close circle of those they know personally, they only do business within that circle, and are wary and suspicious of strangers and outsiders.

    That’s not a business model that is compatible with a modern industrialized society.Report

    • Glyph in reply to LWA (Liberal With Attitude) says:

      LWA – I have yet to be convinced of two things: first, that the claims made by Coke are in fact untrue (or at least, any more untrue than those made by say Gatorade – pls see the sum of my comments there); and secondly, that the product, sugared water, AKA “placebo”, is in any meaningful way as harmful as things like tobacco and benzenes. In our desire to get at the truth, let’s try to maintain things like perspective.Report

      • Glyph in reply to Glyph says:

        In fact, since I just remembered that Gatorade is owned by PepsiCo, and bearing in mind the kinds of marketing claims made on the Gatorade label (please, see the linked image in my comment above), I am beginning to suspect you are all simply unwitting pawns in a conspiracy by Pepsi to take out its hated rival once and for all, via subterfuge and proxy wars!

        That’s right, ladies and gentlemen; the superpowers of sugar water have entered their Cold War phase. Choose wisely, for there can be only one.Report

          • Glyph in reply to Kolohe says:

            That is an absolutely TERRIFIC commercial. Thanks, I had never seen that. My grandma loved RC (it’s a southern thing) and I had it as a kid, but haven’t seen a bottle in years.Report

          • George Turner in reply to Kolohe says:

            I love RC, and it’s very popular in the Middle East. The brand’s major failure was an inability to produce a good vending machine at a crucial point when colas were becoming more established and vying for the market share they’d retain almost indefinitely.

            If you mention an RC Cola and a moon pie, and old Southerner’s eye will light up.Report

            • James Hanley in reply to George Turner says:

              What part of the Middle East? I never noticed it where I’ve been, where Bebsi (Pepsi) was the cola of choice.

              My take on RC as a kid was that if it was cold I couldn’t really distinguish it from Pepsi, but if it warmed up a bit it tasted like weak Pepsi. Not too bad a drink, though, if kept chilled, and I always enjoyed one.Report

      • LWA (Liberal With Attitude) in reply to Glyph says:

        I honestly don’t know either, of the truthiness or lack of, in Coke’s ads. I don’t have any way of knowing if their product is healthful or benign, or even toxic.

        Which is the problem.

        I’m making an assertion for the public’s (via government) right to demand truthful advertising, contra caveat emptor.Report

        • Glyph in reply to LWA (Liberal With Attitude) says:

          On re-reading your comment, I see that, and agree with you in principle. Sorry if I sounded defensive. I seemed to be in the minority and was feeling cornered :-).Report

          • Will Truman in reply to Glyph says:

            I seemed to be in the minority

            If it helps, Glyph, you’re winning me over on the Coca-Cola thing. At least on the legal aspect of it (regardless of the legality, I still think it’s a generally crummy thing to do).Report

          • Shazbot3 in reply to Glyph says:


            If a bottle did only contain, say, 15% of the daily allowance (small dose) of, say, 3 water soluble (that you will probably get elsewhere) vitamins (let’s say C and two B’s) would it be wrong to call it “Vitamin Water”?

            Wouldn’t it be wrong to call a pill with , say, a quarter of that content a “Children’s Daily Vitamin.”

            There are lines here that are fuzzy and grey over what can be legitimately called “a vitamin.” 1. Coke is knowingly stepping on them to confuse rubes, including parent-rubes who may be thinking this is vitamins for their innocent kids. 2. There is or should be a legal limit to how much vitamin needs to be in a product to call it “vitamin” such and such. It is unclear to me whether all so-called vitamin waters meet that standard or whether some do and some don’t.Report

            • Glyph in reply to Shazbot3 says:

              I am 100% OK with some sort of standards to govern the precise percentage of substance X something needs to contain before marketing it as such. If we need such laws, let’s pass them. I assume it isn’t the case here that VW broke any such extant laws (pls correct if wrong).

              Until then, if it is water with 150% vitamin C in it, even if it also has sugar, it can be legitimately called vitamin water, IMO. Read the label to see if the sugars outweigh the benefit of vitamin C to yr immune system.

              And before anyone goes there, no, I don’t mean that poisons and such can be included. I am saying that if people want vitamins (or anything non-toxic/addictive) and my product has vitamins, it’s OK to say it has vitamins in it (or add them so as to sell the product).Report

  21. Uji Mwuese says:

    Hi Tod,
    Really enjoyed your Post and the comments as well. It was most educating inspite of a few slips. I also agree with you that it is sad that corporations are not made to bear criminal liability in the strict sense of it. In some other jurisdictions they do as you rightly mentioned. And this to my mind is a more sure deterrent The argument may be that, how do we incarcerate a corporation or so? While truly a corporation cannot be sent to jail and other similar sentences delivered upon a criminal conviction, the court by lifting the veil of incorporation sheilding the corporation can locate the persons that took the decision constituting a criminal offence on behalf of the company. Such persons can be made to bear the sentence. This will serve to deter others who are in a position to take decisions on behalf of corporations from churning out crime inducing decisions. Once again, thank you Tod.Report

  22. Tod Kelly says:

    I confess when I wrote my post, my assumption was that it would be at best twenty-comment fare. Obviously, however, I’m getting quite a lot of pushback (which I don’t mind) – including accusations that I’m being purposefully deceptive (which I mind very much).

    Since all of the criticisms seem to be relatively similar, let me offer a hypothetical situation for your consideration; afterwards, I’ll try to address the actual concerns some of you have with my piece.

    Imagine you are opening your paper (or web browser) and you come across a story of a local doctor being sued by some of his ex-patients. According to the story, the doctor in question had run a financially successful practice for a couple of years. He had moved to your city two years back, and set up shop; his practice was named Independent Physicians Network. He’d gotten his clients quickly through radio advertising that featured old patients talking about the quality of his care. But now he is being sued because it turns out he never studied medicine and isn’t a doctor at all.

    Patients point to the fact that in his office, there were all kids of degrees on the wall, as well as plaques from your state’s medical association. It turns out that had they studied these, they would have noticed that they the degrees were mostly gobbledygook written in that kind of fancy, overly frilly Latin font that makes documents so hard to read unless you really take the time. The plaques are generic, and though the name on them sounds a little like your state’s medical association (say, State Medical Association), the words are slightly different (Medical Association of the Great State). Many patients who ended up having ailments that needed treatment were told not to worry about their symptoms, and sold placebos by the doctor. There are probably other pertinent facts, but at the moment that’s all that’s being reported.

    The question we must ask ourselves as a society is, at what point do we say that such a practice passes the “buyer beware” marker, and goes straight into the arena of fraud?

    After all, there’s the placebo effect – that’s actually a very real thing. And those that went to see him got up off the couch and walked into his office, and doesn’t that make them healthier – even incrementally – than they would have been had you stayed sitting in front of their television? Anyone could have studied the degrees on his wall or the plaques and had a red flag raised. Further, anyone could have done some research on the man before going to see him and discovered he hadn’t graduated from med school and had never been certified. Sure he called himself a doctor, called his business the Independent Physicians Network, and ran advertisements saying he was a doctor with fake patient testimonies – but in today’s world, shouldn’t people know better than to just assume things are true when they hear a business say or advertise a claim? Really, when you look at it that way, the guy didn’t really do anything wrong, right?

    Glyph is correct that a world without such a fake doctor would be infinitely more boring; but I would argue that this does not mean we should give the con man a pass.

    Much of the individual criticisms I see in the thread are changing the facts on the ground and the argument of the post to better argue that the corporations I discussed have no culpability regardless of their purposeful deceptions.

    Jaybird argues – excellently – that sugar water shouldn’t be illegal, which is a fine (and correct) argument, but is also irrelevant to the issue at hand.

    Glyph has made a number of arguments that are all 100% true, but are likewise irrelevant. He says (correctly) that vitaminwater is probably fractionally better than Coke, Mountain Dew or whiskey. Unfortunately, the marketing campaigns Coca-Cola relied on did not hang their hat on the claim that the product was healthier than other soft drinks. They marketed it as a health food product, and the made very specific claims about immune systems, free radicals, levels of general nutritional value, etc., that simply are not true. Period. He notes (correctly) that just because something is called vitaminwater doesn’t mean that it has to have vitamins in it; however, the lawsuit isn’t claiming that it’s just an issue with the name.

    More interesting to me was his finding a label that showed VW has 100% of all kinds of daily recommended vitamins. The reason I find this interesting is because this seems to be a new development. In 2010 when the lawsuit was filed, vitaminwater had only 60% of C DRA, and only 10% of a few B vitamins and zinc. I would argue that this is a pretty good argument that consumer activism does indeed create better corporations.

    There was some pushback as well about McDonalds having done nothing wrong. I find this argument odd, since not only did their practice result in hundreds of third degree burns needing skin grafts, company employees testified that they knew it was occurring but made a financial calculation that there wouldn’t be enough to them to offset the cost savings of brewing coffee at that temperature – partially because they would be able to use their superior legal staff to keep from paying the bills of most of the burn victims. But if that seems like the kind of positions you want companies to have, hey, we’ll just agree to disagree.

    And that’s what most of this comes down to, anyway – agreeing to disagree. My guess is that Glyph and others would agree that the doctor scenario above is not kosher, and that Something Should Be Done. They find vitaminwater to be, I dunno, more fun or something. I disagree.

    Coca-Cola created a very specific marketing campaign to convince consumers their product was something that it wasn’t. Worse, they created a multi-faceted campaign to convince consumers that a product would improve their immune systems and their overall health and well being when they knew that the opposite was the case. At some point, I would argue, you have to put your foot down. Smoking is fun and a personal choice, but you shouldn’t be allowed to create fictitious medical studies saying it’s good for you. What Coca-Cola did was not a egregious as what the tobacco companies did; but it also wasn’t that far removed.Report

    • greginak in reply to Tod Kelly says:

      Its interesting more people are talking about Coke then tobacco companies. I’m guessing because there are some things can’t be defended or at least publicly. With all due respect to Glyph’s “boring” argument i don’t think that was meant to be taken seriously and if it was then it is solid stupid and , as Jay would, say all about taste. Why people tastes should matter more then claims of fraud is beyond me.

      But mostly i’ve seen people failing to make the distinction i think you made in the OP; that we do have personal choice but it doesn’t mitigate fraud and corporate misconduct. People should be able to smoke, drink soda ( and i love me some diet soda) and put hot coffee between their legs but none of that addresses the conduct of the businesses. This certainly seems to be heading towards a party line split but i’d love to see the “business defenders” explicitly state things that don’t think should be legal or what corporate conduct is beyond acceptable.Report

      • Will Truman in reply to greginak says:

        I think at issue here is what constitutes malfeasance. I don’t think anyone here is saying that companies should be able to do it.Report

        • greginak in reply to Will Truman says:

          Hmmm…i think people have made the argument that of of course companies BS all the time and people should obviously know that and of caveat emptor.Report

        • Will H. in reply to Will Truman says:

          When my tater tots are beyond the toddler stage, that’s when I go plumb berserk.Report

        • Glyph in reply to Will Truman says:

          A.) Will is right on. (“what constitutes malfeasance. I don’t think anyone here is saying that companies should be able to do it.”)

          B.) My argument about “dull” specifically goes to “puffery” and showmen, not con-men (and yes, I know this is a gray area). That is, they must be providing value, even if just entertainment, without producing appreciable concrete harm. I made the Steve Jobs joke that I thought made that clear – Apple products are good, but they are not “insanely great” and I do not “think different”. We want, as a society, to punish outright fraud and deception; but if we go after every grey-area line-toer, we will live in a substantially more dull society. Salesmanship involves some bullshit. Sometimes the product will be worth it anyway, and the bullshit is excusable, and without that bullshit the product would have sank without a trace. I repeat, again, that Gatorade is a similar product, marketed in a similar fashion, and I have yet to see any substantial outcry over that. If people want to give VW all the bad PR and word of mouth in the world, have at, say that it’s basically sugar water/ Kool-Aid (appropriate, no?) / homeopathy; but legal or civil sanctions seem iffy.

          C.) To Tod:

          They marketed it as a health food product, and the made very specific claims about immune systems,…

          Vitamin C, AFAIK is still indicated for immune function. 150% can’t hurt.

          free radicals, levels of general nutritional value, etc., that simply are not true. Period.

          Debatable. Certainly not to me definitively false, from either a scientific or linguistic perspective, from anything yet presented. This is a claim that you keep making strongly that I do not think is yet well-supported.

          He notes (correctly) that just because something is called vitaminwater doesn’t mean that it has to have vitamins in it

          I did?!? I thought I kept saying, Vitamin Water has appreciable vitamins, and water, and so calling it “vitamin water” seems in-bounds. If I seemed to say otherwise this was not intended. I believe something called “Vitamin Water” must contain appreciable levels of both vitamin, and water. Oh wait, is that about the Coca-cola and root beer examples? That was mostly snark, but I do think it speaks to “expectations” – many people keep claiming part of the problem is their expectation of what the name means, to which I respond that A.) they know Coke and root beer won’t fish you up any more, yet are OK with that, and B.) as stated, “Vitamin Water” is more accurately-named than those, because it contains vitamins, and water, and on my bottle at least, appreciable amounts of both.

          To the doctor example: that is clearly fraud, because he is calling himself a “doctor” which has a legal meaning, doesn’t it? And he is dispensing services that may either be harmful, or causes people to fail to seek better care. Again, see my distinction between showmen and con-men; this doctor is the latter. I am not convinced Coke and their PR/Ad agencies are not the former. Again, I know it’s a grey area, which to me makes the certitude surprising.

          Anyway, I have to go try to get a nap. Thanks for all the thoughtful responses.Report

          • Glyph in reply to Glyph says:

            Also, this: “this is a pretty good argument that consumer activism does indeed create better corporations.”

            Nowhere have I tried to argue against consumer activism. I am all for muckraking; IIRC some ppl speculated that Spurlock played a little fast and loose in “Super Size Me”, but the concept at least was sound, and it had some IMO positive effects in the fast food industry wrt portion size and such.

            I am simply saying that at some point, we shouldn’t be shocked, shocked! that a drink marketed as a “healthy” alternative (which, again, is relative) has high sugar and low vitamins, when it has a nutrition label on the side telling us that it has high sugar, and low vitamins. Complain loudly about that situation all you want, picket, take to twitter, boycott, shame them into changing for the better, whatever, you’ll get no objections from me. (Mental note: sell Gatorade stock. Or buy it, depending.) But don’t expect me to feel *too* sorry for PT Barnum’s favored clientele, or to help slap the company with civil or legal penalties, barring lawbreaking, outright fraud, negligence, or jonesing flipper-babies (=toxins or addictants).Report

    • Will H. in reply to Tod Kelly says:

      FTR, I think what the tobacco cos. did was really, really rotten.
      And the lying to Congress bit was definitely criminal. Statute of limitations probably saved them there.
      McDonald’s coffee, I can see mitigating factors. They definitely had a duty, and they shouldn’t have hidden the dangers.
      Although what Coke was doing in their VW ad campaign was definitely misleading, I don’t think the harm done rises to the same level as with tobacco and seared flesh.
      Like WillT, it’s the sugar content that concerns me more than the vitamin claims (but then, I’m a compulsive label reader for certain products*). If the stuff is marketed basically as a sub-type of bottled water, then definitely it shouldn’t send diabetics into shock, etc.
      I’m just not so sure of the harm.
      The gain was through deceptive means, yes; but to suffer damages as a result is an element of every action I can think of.

      * And I go through a lot of bodybuilding supplements, just to maintain my body weight on the down times. So, when anything is making a health claim, I tend to read the label very carefully. In fact, I have a spreadsheet with ten brands of vitamins laid out for comparison. I used to take the Opti-men until the changed the level of vitamin D in it (even though I take a vitamin D supplement); now I take the Centrum Complete.Report

      • Trumwill in reply to Will H. says:

        McDonald’s coffee, I can see mitigating factors. They definitely had a duty, and they shouldn’t have hidden the dangers.

        If McDonald’s was in error, it was not the temperature of the coffee but the failure to disclose. The thing is, more of the accounts I have read have said that their warning was insufficient and not that they failed to warn entirely.Report

        • Burt Likko in reply to Trumwill says:

          I take issue with the temperature, after a history of injuries had begun to accumulate: there were a lot of prior incidents of very serious burns before Ms. Liebeck’s and it stops being a case of warnings and it starts being a case of “too many people have been hurt by the product so the product needs to change.”Report

          • Trumwill in reply to Burt Likko says:

            Hundreds of complaints out of millions of orders. Complaints predicated on mishandling.

            McDonald’s coffee temperatures may have been on the high end, but I’ve seen little to suggest that they were out of the ordinary. Recent tests have demonstrated that temperatures of 170-180 are not unusual at all and I don’t think that the extra ten degrees saves you from scalding.

            So where does that leave us? Coffee at a sufficiently low temperature that scalding will not occur. The plaintiffs argued that was 140 degrees. That’s not inherently sufficiently hot, in my view. Other customers should not be left with lukewarm coffee. The plaintiffs argued that even 155 may have avoided the injury, though this is disputed and 155 is at the low end of what many consider to be “ideal temperatures” (and below what others consider to be such).

            And all of these temperatures, of course, being lower than the coffee that WillH pulled from his microwave last night, which was towards the high end of McDonald’s range.

            I am not a big fan of the notion that standards and practices should be determined by a several hundred scaldings that occurred due to mishandling. Now, I am not trying to downplay the nature of her injuries. I don’t envy the lady’s situation, despite the money she received (substantially less than three million). I am, however, disinclined to assign civil culpability (particularly 75% of culpability) to the company for being at the higher range of coffee temperatures.Report

            • Kazzy in reply to Trumwill says:

              But is it just coffee temperatures? I don’t know the specifics of the lawsuit, but do the cup and the lid matter? Could the coffee be brewed at 180-degrees but served at a lower temp? I’m tempted to believe that if a beverage can cause 3rd-degree burns to a persons thighs, that it will also burn the inside of your mouth.Report

              • Will Truman in reply to Kazzy says:

                One of the issues in this case was that the coffee stayed on her skin because they soaked into her sweats, which helped cause the burns. Note, it didn’t take but a couple of seconds. But when you drink it, it’s gliding across your mouth and I don’t think it has time to “set” the same way. I don’t know about you, but when I drink something that’s too hot, I start swishing it in my mouth almost by reflex. Which is why everyone isn’t burning their mouth when they drink coffees at temperatures high enough to scald your skin.

                Also, in order for the temprature to be low enough not to pose a scalding threat, it would have to be 140 degrees (according to the plaintiffs). So there is at least some degree of risk inherent. The other thing is that even if you shouldn’t consume it at the maximum weight, it’s easier to wait for hot coffee to cool down than to heat up coffee that starts off at a cooler temperature and goes down from there. Coffee temperatures fall pretty fast, I think.Report

      • Trumwill in reply to Will H. says:

        Also, I hadn’t even thought of the diabetes angle. That definitely cuts against Coca-Cola.Report

    • Kazzy in reply to Tod Kelly says:

      In your scenario, the moment he calls himself a “doctor” and his work space a “doctor’s office”, he has committed fraud, because he does not meet the definition of “doctor” nor his work space the definition of a “doctor’s office”. But if he simply said, “Hey, I might be able to help you with your problems,” and just happened to have those faux diplomas on his wall, I think it is a much less clear case. I mean, isn’t that what homeopathic folks do all the goddamn day?

      The fraud is not in the elaborateness of his scheme, but that he outright lied when he called himself a “doctor”.Report

      • Kazzy in reply to Kazzy says:

        But, yes, I do agree with your larger point: the idiocy/gullibility/poor choices of the public doesn’t excuse the actions of the corporations. Our court system often seems predicated on assigning all the blame wholly to one person, with often the individual more obviously having done something stupid and/or less able to spin their decisions.Report

        • Burt Likko in reply to Kazzy says:

          As I’ve pointed out above, consumer protection laws are aimed not at the intelligent, well-informed consumer, but very often at the consumer who is politely described as “unsophisticated,” which translates in this context to “dim.”Report

      • Will H. in reply to Kazzy says:

        So you’re saying that unless Doc Martens are actually made by a real doctor, then they shouldn’t be allowed to call themselves “Doc Martens?”

        What about Wolfman Jack?Report

        • Burt Likko in reply to Will H. says:

          “Doctor” doesn’t carry the same meaning of proficiency with medicine in other cultures as it does in the United States. I’m told that in Germany and points east (in Europe) the word “doktor” can connote experience, skill and education, like the word “expert” in English, and the area of proficiency thus described needs to be understood in the context of its presentation.Report

        • Kazzy in reply to Will H. says:

          They were initially designed by a doctor.Report

    • Jaybird in reply to Tod Kelly says:

      I’m not arguing that sugar water shouldn’t be illegal as much as “corporations lying to you about the awesomeness of any particular product should be a surprise to precisely no one.”

      I waver on whether “Vitamin Water”‘s ad campaign contains lies so egregious that Coca-Cola should be slapped down hard primarily because I don’t know that their lies are particularly egregious as these things go when compared to the ubiquity of the lies floating out there.

      Seriously, when a company manages to fake “sincerity” (Wendy The Snapple Lady is a great example), customers fall over themselves to get a piece of that product because customers are so very used to, for example, the Fruit Stripe Gummification Of Everything.

      So when someone shows up and says “but I thought that this was actually a good choice to be making” about something that has ingredients listed on the side (and calorie/carb counts next to that) because the product has a Mediciny label and a Mediciny name, the immediate comparisons my brain makes are to the other umpteen times that corporations have lied about what a good choice their product happens to be.Report

    • Roger in reply to Tod Kelly says:

      Sorry to give offense, Tod. It does seem an odd rhetorical move to attack Coke for hyperbole, (as Burt would say) by being hyperbolic.

      A similar kerfuffle came up a few months ago when Nob wrote a brief anti corporate insurance piece that proved to be (in part) passing on bad rumors. All the progressives cheered it on right up to the point it was retracted.

      I am sure corporations do some really bad stuff. Selling hot coffee and vitamin fortified sugar water aren’t the best examples of their transgressions.Report

      • Stillwater in reply to Roger says:

        Interestingly, none of the other stuff that gets brought up seems to satisfy you either. The mortgage crisis and the S&L debacle are two recent examples presented at the LoOG, neither of which were to due to corporate transgressions on your view. They were due to bad gummint.

        So, what do you have in mind?Report

        • Roger in reply to Stillwater says:


          Actually I blamed bad institutions and incentives for the 2008 debacle. The blame for bad institutions goes to the incestuous relationship between regulators, those regulated and politicians. The blame for this situation is rooted in the widespread paradigm that activist regulators with awesome goals will do a good job regulating complex industry.

          BTW, a lot of the confusion with me and the more progressive minded members is that they think my call for less activist regulation is a synonym for deregulation. It is not. Regulatory excess leads to a Rube Goldberg device of insanity. Deregulation sounds nice, but can often lead to the device no longer working at all.

          Also, I suspect there was malfeasance in the financial industry. There may have been some at Coke too…?Report

      • Tod Kelly in reply to Roger says:


        I understand where you might not agree, but in what way is arguing that consumers hold their vendors accountable purposly misleading advertising hyperbolic?Report

        • Roger in reply to Tod Kelly says:

          No. I think that if this kerfuffle leads to Coke being more honest in its marketing, that the world will be a better place. I think we are better off getting our drive in coffee a little cooler too.

          Complex adaptive systems learn, and blog posts, comments, law suits, regulations and corporate responses are all part of that process. Overall, I think we have moved forward slightly more than we move back over past few hundred years.Report

  23. Kolohe says:

    Compared to the body of work the alt medicine crowd puts out, the CC corporation is Abe Lincoln.Report

    • Stillwater in reply to Kolohe says:

      Kolohe, how would you define “alt medicine”?Report

      • Kolohe in reply to Stillwater says:

        At one end, the more excessive claims of chiropractics; at the other, the folks that are peddling homeopathy, ‘cures the doctors and drug companies don’t want you to know about’, parts of the ‘herbal & natural medicine’ market, and the guys that are just straight up selling patent medicine like it’s still 1887.Report

  24. Damon says:

    I’m sorta torn here in the Coke case. I generally agree that “god would not have made them sheep if he didn’t want them fleeced” argument on one hand because trying to regulate down to stupid is an impossible task and I generally prefer less regulation to more. That being said, “you can’t fix stupid”, so we do have to have some safeguards in place. A company intentionally preying on the stupid gives pause. (I distinguish between the stupid and ignorant. The ignorant could, after looking into the product realize it’s probably not healthy and not buy it). I’m all for cases of fraud and illegal marketing to get punished.

    Now on to cigs and McDonalds. Sorry, cigs were labeled as coffin nails going back a hundred years. If you couldn’t figure out that inhaling something other than “air” was harmful, I can’t help you. Allowances made for those who could actually prove deception in individual cases.

    As to McDonalds and the coffee, the coffee is hot. IIRC, the woman was driving and spilled the coffee on herself. Nuff said. I don’t care if McDonalds kept the temp of the coffee at 1,000 degrees kelvin, its hot coffee. duh.Report

    • Burt Likko in reply to Damon says:

      …But she wasn’t driving. See above. And — do you seriously expect your coffee to give you third degree burns? If you do, you’re making it too damn hot.

      What I really don’t understand is that you’re willing to make allowances in individual cases for those who could prove deception in tobacco cases for a product that we can all agree inherently raised more than a reasonable suspicion of danger. But you’re not willing to make the same allowance for vitaminwater, a product deliberately represented as being somehow good for you. Can you explain how that needle gets threaded?Report

      • Jaybird in reply to Burt Likko says:

        I, personally, see a difference between “good for you” “not good for you” and “bad for you”. (And these are a lot more likely to be squishy areas along a continuum rather than discrete categories in their own right.)Report

        • Glyph in reply to Jaybird says:

          Further granularity is also possible, for ex.: “not *THAT* bad for you, relatively speaking” and “must carry a skull and crossbones on the label”. So, yeah.Report

          • Jaybird in reply to Glyph says:

            Exactly. It seems to me that Vitamin Water is somewhere around “Coca-Cola” when it was assumed to have been somewhere on the scale in the territory of Flintstones Vitamins.

            Hell, Flintstones Vitamins, for that matter, is probably a lot more to the right than folks assume.

            Anyway, to the extent that cigarettes argued (lied under oath, even) that they weren’t as far to the right as they actually were, I see an analogy between Vitamin Water and smokes. However, the actual starting points matter a great deal as well, and something that does active harm (“bad for you”) that is being lied about being not bad for you is a very different thing than something that is merely not good for you cultivating the misconception that it’s closer to good for you than, say, Coca-Cola (when, really, it’s smack dab on the same spot).Report

        • Burt Likko in reply to Jaybird says:

          Do we agree that vitaminwater is represented as being “good for you”?Report

          • Glyph in reply to Burt Likko says:

            Not sure. To me it seems like it’s presented as “a healthier alternative” similar to Gatorade (as I keep pointing out and no one seems to care); I imagine people utilizing VW in a similar fashion to Gatorade.

            Doc Saunders has pointed out that we think orange juice and apple juice and all that is “healthy”, when in fact fruit juice is basically sugar and empty calories with no significant nutritive value other than that; when my friend went on Atkins, juice was one of the first things to go.

            IIRC Doc has said that while he won’t ban juice from his kids, it’s not the first choice and they don’t keep much in the house, and water is in most if not all respects the healthier choice, as it hydrates without the empty calories.

            Is fruit juice represented as “good for you”? It has vitamins too.Report

          • Jaybird in reply to Burt Likko says:

            I have to profess ignorance as to Vitamin Water’s ad campaign (no television means that I am out of the loop when it comes to commercials). The last commercial for Vitamin Water that I saw had 50 Cent conducting an orchestra (which made no particularly reasonable claims about nutrition one way or the other).

            So I’m just stuck answering the question by just looking at the packaging. It’s cultivating a boring/clinical aesthetic. I suppose that I might assume that it’s better for me than straight up sugar soda… until I read the back of the bottle.

            I don’t know that I’d reach the conclusion that it was “good for me”, though. I admit that I’d probably think that it would be preferable to Coke/Sprite, though.Report

          • BlaiseP in reply to Burt Likko says:

            Not merely “good for you”. Vitaminwater has made claims of providing immunity from influenza. “Flu shots are so last year: more Vitamin C, more immunity”.Report

            • Jaybird in reply to BlaiseP says:

              “No children ever got autism from a bottle of Power-C.”

              Anyway, that ad is definitely something that I would have no problem being squashed by the government as being not only misleading but actively harmful.

              It’s one thing to say “we have 100% of your recommended daily dose of vitamin C! Read Linus Pauling!” and quite another to imply that folks should avoid flu shots.Report

              • Glyph in reply to Jaybird says:

                Totally OT, but I think I have mentioned before that my HS chem teacher was a complete Linus Pauling nut. He took like 3 billion percent of the daily RDA of C and claimed he never got sick.Report

              • Russell Saunders in reply to Glyph says:

                Your HS chem teacher is probably personally responsible for helping generations of sewer rats avoid scurvy, what with all the vitamin C he so thoughtfully pissed away (literally) every day.Report

              • Glyph in reply to Russell Saunders says:

                He was a great guy mostly, but he was nutty on a cpl subjects (like Pauling himself, come to think).

                And yeah, I never thought about it, but when the superimmune hyperintelligent rats come out of the sewers to take their rightful place as our overlords, I’ll know who to blame.Report

            • Glyph in reply to BlaiseP says:

              Isn’t C still indicated for immune function? Assuming you are C-sufficient rather than deficient, aren’t you a: less likely to contract the flu, and b: less likely to experience such severe symptoms when you do?:


              That link you provided I think really highlights the problem for me. Statements like :

              “dangerously misleading.”

              “These advertising claims are not only untrue; they constitute a public health menace,”

              Just seem…overblown. I wonder how the spokesperson’s electrolyte levels are. Perhaps they should have a bottle of Gatorade to replenish.Report

              • Mike Schilling in reply to Glyph says:

                “Smallpox immunizations are so horse and buggy era”.Report

              • BlaiseP in reply to Glyph says:

                It seems to me the most dangerous bit of this advert is the “Flu shots are so last year” part. Immunity may not be completely understood but the benefits of vaccination cannot possibly be compared to fortifying the Krebs Cycle.Report

              • Glyph in reply to BlaiseP says:

                No doubt, and like Jaybird, I am OK with requiring that they back off on such claims. I got my flu shot this year.Report

              • Glyph in reply to Glyph says:

                In fact, the more I think about it, that flu one is pretty egregious and over the line. That is a clear and imminent danger if people believe that malarkey and skip their shots for a glass of sugar water. So hammer them on that one, for sure.Report

              • BlaiseP in reply to Glyph says:

                Quoting Tod, who in turn quotes the motion to dismiss:

                “no consumer could reasonably be misled into thinking vitaminwater was a healthy beverage” by their marketing, advertising and packaging campaign to lead consumers into thinking vitaminwater was a healthy beverage.

                Vitaminwater’s health claims extended to declaring flu vaccines “so last year.” I’m sure they ran that past their attorneys, perhaps the worthy Mr. Likko can further enlighten us, but Vitaminwater seems to making claims of efficacy.Report

              • Jaybird in reply to BlaiseP says:

                All y’all should have opened with that instead of bringing it out last.Report

              • BlaiseP in reply to BlaiseP says:

                Well, I didn’t put much thought into it. Or, let’s just say I was distracted by the Juicy Fruit and Root Beer threads.Report

              • Burt Likko in reply to BlaiseP says:

                Y’all are as qualified as I am to respond to the substance of the claims made, because y’all are consumers as much as I am. No particular deference should be afforded to me because I hold a juris doctorate (and I’m not the only J.D. around these parts either). The one whose knowledge is particularly singificant here is the Doc and even then, his practice isn’t focused on common cold-type things like immunology, epidemiology, or (most kinds of) internal medicine.

                The claim here seems to be that vitaminwater is a substitute for a flu shot, that its heightened vitamin C content provides immunity or near-immunity from ordinary colds and influenza. If so, my understanding of the relationship between vitamin C and immune system function is such that such a claim would be false. What your body doesn’t need, it disposes of, and what it does use makes the immune system stronger up to a point. But the only thing that gives immunization to pathogens, to my knowledge, is innoculation, and that may not with with all kinds of pathogens, including influenza.Report

              • BlaiseP in reply to BlaiseP says:

                You’re right, Burt. But I can just hear counsel for the defence shucking and jiving, trying to shoehorn the “Flu shots are so last year” line past some FTC prosecutor type.Report

      • Damon in reply to Burt Likko says:

        RE vitamin water. I wasn’t clear then. I’m not making allowances. Where fraud or intentional deception can be shown, I’m all for a legal smackdown–for any product.

        As to the coffee…you’re correct. I recall the “lap” issue and falsely recalled it was from driving:

        “Liebeck placed the coffee cup between her knees and pulled the far side of the lid toward her to remove it. In the process, she spilled the entire cup of coffee on her lap.[1”

        Regardless, coffee is hot, so I have a hard time with Mcdonalds being 100% culpable here.Report

    • Kim in reply to Damon says:

      funny how the “god would not have made them sheep” never seems to apply to major corporations…Report

  25. I am late to this excellent post and ensuing discussion, but felt compelled to comment a little bit.

    First of all, someone noted upthread that vitaminwater is probably better for you than a variety of other beverages. This is true in the same way that syphilis is better for you than herpes. (Hey, at least it’s curable.) If the caloric contents of a carbonated soft drink and its vitamin-laced counterpart are the same, then it’s pretty much a wash. The added caffeine in Coca-Cola (or the truly heroic amounts in Mountain Dew) are a cause for some additional concern, perhaps, but on balance vitaminwater is no better for you than any other soft drink.

    I think a large part of the problem is that you can market just about any potion or pill you’d like in this country, and so long as you foist it on a credulous public as a “supplement,” then you’re not subject to much regulation or oversight at all. All the folderol about “free radicals” (which, here’s a tip — treat any writing on food packages about health benefits from fighting “free radicals” with the same level of respect as if it were written in Klingon) and such is, as far as I know, kosher so long as it isn’t marketed as a “medicine.” To my reading, vitaminwater dodges the bullet by being a “supplement,” albeit a wholly worthless one.

    I know this isn’t really to the particulars of your point, Tod, but I felt like finding a reason to comment beyond telling you this whole post was space awesome.Report