Greed Is Not Good, Part II: Divest From Coke
Note: The following post is part of the Ordinary Times Food Symposium. All symposium posts can be found here; an explanation of the symposium here. The first part of Robert Greer’s Greed Is Not Good post can be found here.
by Robert Greer
Now that it’s hopefully been agreed that we need to change our food environment, the natural question is how we could do it. The most obvious way to deal with unhealthy processed foods is to regulate them: soda taxes, bans on trans fats, etc. But these are often politically unworkable: Witness the immense power of the soda lobby against even relatively unintrusive Nudge-s like Bloomberg’s large soda ban. In cases where regulations are workable, it’s often because industry has decided it can work around the problem, and so the regulation was largely irrelevant in the first place (see trans fats). Another route to change might be to pressure the government to remove the subsidies from the processed food supply chain; but as noted earlier, even this worthwhile measure won’t be enough.
There is another conventional forum for dealing with dangerous products, namely the legal system: It may be possible to hold companies responsible under existing products liability tort law. Unfortunately, there has been little litigation on the topic, and the most important case seems to be a New York case, S.F. v. Archer-Daniels-Midland, concerning the latter’s use of high fructose corn syrup. However, this case was ultimately dismissed, in part because the plaintiffs alleged that high fructose corn syrup was more problematic than other forms of processed sugar (which would be a difficult thing to prove), and did not show the existence of a more healthful alternative.
But just because Big Food has had success so far doesn’t mean they’re invincible. In many states, consumers can sue companies where companies hawk addictive products, and do not inform them about the addictive properties, and the consumers are harmed as a result. In the case of food companies, important elements at issue are 1) whether the product is indeed addictive and dangerous, and 2) whether the company contributed to the addictive or dangerous qualities or tried to hide them. In certain cases, it’s possible to present a strong case for both propositions.
In the fight for sensible food, it will be smart to start with the worst offenders, as the analogy to bad actors like tobacco companies will be strongest. The most obvious case of food addiction is probably soda. Soda companies routinely use a compound, caffeine, that is widely understood to be addictive, and their highly-sugared products are among the most clearly metabolically toxic. Although caffeine is not understood to be as inherently toxic as nicotine, caffeine is still toxic in large amounts, and soda companies routinely advertise or otherwise encourage consumption of caffeine above the threshold for addiction (about three 12-oz sodas a day). Importantly, caffeinated soda routinely contains processed sugar, which evidence shows to be dangerous above a certain threshold of consumption, and has strong addictive qualities even in isolation. (Processed sugar has similar effects on human liver metabolism as alcohol, and so the mechanism for sugar addiction for people with diabetes is nearly identical to the mechanism for alcohol addiction.) Another damning piece of evidence is that soda companies generally add salt to their product, which by balancing the saccharine taste of sugar enables companies to add even more sugar than otherwise would be palatable. Salt also generally makes people thirsty, which may lead people to consume even more of the dangerous product. All of these actions are in the best interests of Coke’s shareholders, which is why they are perhaps not surprising. But just because they’re not surprising doesn’t mean they’re any less damnable.
Consumers of full-sugar Coke who purchase in the amounts the company apparently intends should be expected to develop an addiction to the product and thus be well on the road to diseases like diabetes. In many respects, this is the kind of behavior for which existing caselaw allows consumers to hold companies responsible and collect punitive damages (as in the California case Boeken v. Philip Morris). This is especially so when one considers that soda companies have manipulated research and denied the mainstream consensus on the dangers of their product in ways eerily reminiscent of the tobacco companies. To be sure, it may take time to find an uncontroversial plaintiff (Big Soda’s lawyers will surely argue that anyone suing them eats other unhealthy food, and to some extent they’ll be right). But such obstacles aren’t insuperable: even tobacco plaintiffs who lived with air pollution were able to hold tobacco companies accountable for their misdeeds.
Unfortunately, despite the strong legal analogies between soda and tobacco, the legal fight against processed foods will undoubtedly be an uphill battle. Food companies outspend consumer advocates routinely and lopsidedly, and have experienced teams of intellectual mercenaries advancing their pecuniary interests. Also, the soda lobby is much larger and better-connected than the tobacco company ever was: Instead of being a primarily rural, Southern industry like tobacco, Big Soda employs everyone from Midwestern corn farmers to Atlantan executives to an enormous network of regional distributors — and many more people participate in the industry as shareholders than in tobacco — and so opposition can be expected to be both robust and resilient.
It’s apparent that taking on Big Soda on its home turf (lobbying and lawyering) may be foolish given its power at this stage of the game. But if regulating or suing food companies can’t provide immediate benefits, we can at least use the meantime to treat food companies and their top officers as pariahs. Additionally, we can pressure universities to treat soda companies as disreputable places to employ graduates, akin to working for companies that lag on rights for minorities, or that support apartheid regimes. The worst offenders in the processed food industry have made themselves prime candidates for a concerted public relations campaign, and we should be exploiting that. Of course, this movement already exists, but it needs to be more vocal, more steadfast, and much, much larger.
Processed-food companies have made a few people very rich, and are tightly integrated into our economy. But at some point, we need to assert our values for the health of our fellow citizens over short-term prospects for economic gain. It’s long past time to divest from Coke.
Robert (firstname.lastname@example.org) is a public interest lawyer in New York City and a recent graduate of the law school of the University of Chicago.