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

A new ad by Coca-Cola has caused a bit of fuss over the intertubes, including in the threads of a post by Ethan over in Off the Cuff.  The debate that’s raging is centered on the questions of whether or not people should have the freedom to drink unhealthy soft drinks if they wish, and whether or not those people should take personal responsibility for their own actions.

Which, for those that like to keep track of such things at home, brings the score to Coca-Cola PR Department: 1, General Public: 0.

The ad, which looks to tell the tale that Coca-Cola is leading the charge in healthy lifestyle choices, is in fact a response to negative publicity surrounding a lawsuit the beverage behemoth is facing due to its vitaminwater products.  The lawsuit is actually a few years old, but is hitting the public consciousness this past month because the rat is finally moving through the snake.

If you haven’t heard of the lawsuit, it alleges that although Coca-Cola markets vitaminwater as a healthy beverage, it is in fact just colored sugar water.  And the truth is Coca-Cola does more than just claim vitaminwater is healthy.  It packages the drink to look like a medicinal product.  The various flavors are given names such as “endurance,” “energy”, “essential” and “focus.”  Marketing campaigns have claimed that vitaminwater is nutritious, “powers your immune system,” and “helps fight free radicals to improve your body.”  All of this is entirely fictitious; none of this is remotely true by any conceivable measure.

Coca-Cola’s marketing of vitaminwater stresses that the drinks are “fortified” with vitamins, and to a certain extent this is true – and telling.  There are in fact a few chemically synthesized vitamins added.  However, the vitamins in vitaminwater come in such minuscule amounts as to be meaningless to the human body.  Because they add no health benefit, no color, no flavor and do not in any way change the consistency or viscosity of the beverage, it seems the only reason they are added at all is so that the drink can be erroneously marketed as a kind of delicious over-the-counter medicine.

And while vitaminwater isn’t exactly rat poison, there isn’t a health professional in the world that won’t tell you that it’s actually an unhealthy beverage choice; it’s basically brightly colored soda pop without the carbonation.

And it’s vitally important to recognize that Coca-Cola’s legal defense doesn’t deny any of this.

Instead, they have gone with the legal and public relations tactic of arguing that people stupid enough to believe their claims deserve to be fleeced.  No, really.  According to their 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.

The PR fight that Coca-Cola wants to have isn’t whether or not they knowingly, willingly and purposefully lied to consumers about issues pertinent to public health; that’s a battle they know they’ll lose.  Instead, they want us to have a debate about whether or not we should be “free” to drink Coke and Mountain Dew, because in their books that’s what’s known as a slam-dunk.  “Pay no attention to us, we just want you to have choices,” they whisper in our ear. “The real villain here is Mayor Bloomberg.”  The PR staff at Coca-Cola isn’t stupid.  They know we don’t like talking about how gullible we are; they know we love talking about how silly we think large soda bans are.  And thus have they set the table for us, as we willing sit down and feast upon their lies and obfuscations.  Coca-Cola doesn’t have to defend itself for committing blatant fraud in the commons; they know we’re more than happy to do it for them.

That this strategy is so successful should not be surprising.  After all, it’s worked before.

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In May of 1994, scores of Congressmen, reporters, and academic researchers arrived at their offics to find a strange and most unexpected package.  Sent from an anonymous source that identified himself only as “Mr. Butts,” each of these parcels was in fact a kind of lawsuit time bomb; they were filled with thousands of corporate documents spanning almost forty years.  The documents sent were all from Brown & Williamson, the tobacco giant that produced more than a dozen best-selling cigarette brands including Kool, Pall Mall and Lucky Strike.

If you have ever asked yourself why tobacco companies began to lose major lawsuits in the 1990s when they seemed so bulletproof for decades prior, know that the answer to your question was inside of those anonymous packages.

Sent by Brown & Williamson employee Merrell Williams, the picture the documents painted of the tobacco industry was devastating.  They showed an entire industry guilty of collusion, racketeering and conspiracy.  The tobacco industry had spent the past forty years testifying before Congress and courts of law that studies showed no negative health effects from smoking, and that smoking was in no way addictive.  In fact, as the memo showed, the industry was aware of both their product’s health risks and addictive qualities long before the general public.  The studies they had testified under oath were legitimate were knowingly fabricated by the various tobacco producers.  Scientists or health experts who published factually correct studies would be systematically attacked, smeared and bankrupted by overwhelming lawsuits and blackmail.

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 wheels slowly began to ramp up to a nearly twenty-year series of punitive civil and public lawsuits.

The response from the tobacco company was, in hindsight, genius.

Having been caught with its pants down in a vast criminal conspiracy, they systematically began to change the nature of the debate.  Even if people knew that smoking was bad for them, the new tactical approach went, shouldn’t Americans be free to choose what to do with their own bodies?  Assisted by lobbyists, paid for politicians, and talk radio, tobacco companies drew a new picture where greedy trial lawyers awarded outrageous sums of money to people who were too unprincipled to take personal responsibilities for their own personal lifestyle choices.  Their efforts were extraordinarily successful.  Today when we talk about tobacco settlements, the entire conversation is framed around this dodge.  The fact that tobacco is, in essence, still “doing time” according to the precepts of the system for their criminal actions is never mentioned.  Other than the occasional corporate ethics class, I have not heard or read the phrase “Brown & Williamson leak” in over a decade.

Of course Coca-Cola and tobacco are not alone in their successful attempts at dodging public persecution for misdeeds by bemoaning the state of personal responsibility in America today.

When I teach corporate ethic seminars, I am amazed at the number of people that “know” about the guy that hit a million dollar lottery by suing Starbucks after he spilled hot coffee in his own lap.  Occasionally, I’ll run across someone that knows that it wasn’t Starbucks; it was McDonalds.

I have yet to find anyone at these seminars that knows that it was actually a woman, or that she had initially only asked for $20,000 to cover medical expenses for third degree burns that required skin grafts.  No one at these seminars has ever heard that at the time, McDonalds required franchises to serve coffee at 82-88° Celsius.  No one has heard that the company knew at the time that coffee at this temperature could and would result in many third degree burns and skin grafts.  No one has heard that the reason McDonalds decided to serve a product they knew to be unsafe was that at high temperatures you can make slightly more cups per pound of coffee, or that a decision was made not to warn clients of the danger for fear that they might suffer a decrease in coffee sales.  No one knows that by the time the woman’s case came to court, hundreds of people had suffered third-degree burns from McDonalds coffee.  It is true that the injured woman, Stella Liebeck, was awarded a lot of money – almost three times more than the mythical “million dollars,” in fact.  But that money wasn’t awarded to her because she was greedy; all she’d really wanted at the outset was $20,000 to cover skin grafting expenses.  No, McDonalds was made to pay more than $2.7 million because the legal system wanted to make it expensive enough to deter them from knowingly causing third degree burns without warning their clientele.

Look, the job of PR professionals whose employers have been caught committing corporate malfeasance is to reframe the debate to obfuscate their culpability.  The job of the informed consumer is to recognize this sleight of hand and not be distracted by their bright shiny objects.  Was Mayor Bloomberg wrong for banning large drinks?  Probably, though it’s certainly open for debate.  However, Mayor Bloomberg is also irrelevant to the reason Coca-Cola wants to talk about “choice” and their commitment to healthy lifestyles this month.

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.

So hold their damn feet to the fire, and don’t let them off that easy.

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