It was a big day in the New York Times Sunday edition that’s been showing up on my doorstep unannounced for the last couple of weeks (It must belong to the old tenant or to the one next door who’s out of town, to judge by the uncollected junk mail in their box. At any rate, I did my due diligence by waiting until after I returned from a run to bring it inside–the unwritten laws of urban living have been followed).
I’ll get to the big serious article about urban poverty in a while, but before that, let’s consider Stephanie Strom’s front-page piece on pending litigation against food companies for deceptive labeling.
The problem starts with the headline,
After Tobacco, Lawyers Set Their Sights on Food Industry [note: online, it’s the slightly less terrifying “Lawyers From Suits Against Big Tobacco Target Food Makers”])
and gets worse from there. If I remember my inverted pyramid (and I think I do, but there’s a reason I’m practicing history and not journalism), the most important stuff the reporter wants to stress comes in the first paragraph. That way, if a busy reader wants to stop reading, they still take away the most important stuff. What’s Strom trying to make sure her reader grasps?
Don Barrett, a Mississippi lawyer, took in hundreds of millions of dollars a decade ago after suing Big Tobacco and winning record settlements from R. J. Reynolds, Philip Morris and other cigarette makers. So did Walter Umphrey, Dewitt M. Lovelace and Stuart and Carol Nelkin.
Ever since, the lawyers have been searching for big paydays in business, scoring more modest wins against car companies, drug makers, brokerage firms and insurers. Now, they have found the next target: food manufacturers.
I’m struggling to find any daylight between the Newspaper of Record and a Limbaugh Two Minute Hate: Trial Lawyers segment. When a reporter, ostensibly writing a news story, frames the case as a challenge to
industry players like ConAgra Foods, PepsiCo, Heinz, General Mills and Chobani that stock pantry shelves and refrigerators across America
it sends a pretty clear signal about who’s wearing the black hats. “Those Trial Lawyers, at it again!” says Joe Q. Sixpack. “They won’t be satisfied until they’ve sued all of the food out of existence,” he grumbles, as Stephanie Strom revels in the satisfactions of a job of professional, objective journalism well done.
It takes quite a bit more reading, and turning to page 4, before a reader gets any sense of the stakes for consumers of mass-produced food products: honest representation of the products they (and by “they” I mean “we, all of us”) consume. But we can’t even get there directly, without first hearing the industry’s perspective.
“It’s difficult to take some of these claims seriously, for instance, that a consumer was deceived into believing that a chocolate hazelnut spread for bread was healthy for children,” said Kristen E. Polovoy, an industry lawyer at Montgomery McCracken, referring to a lawsuit that two mothers brought against the maker of Nutella. “I think the courts are starting to look at the implausibility of some of these suits.”
This, incidentally, is an example of the advertisements in question.
The semiotics of this ad are pretty rich. Visually, we have Blonde Attractive (But Not Threateningly So) Mom, and Three Fair Haired Children in a Big Suburban McMansion With Obligatory Great Room and Kitchen Island. The Golden Retriever is a little on the nose, but I’ll let it slide. Clearly, this is not a household where Imperfect Things are welcomed.
As for Nutella, this hazelnut spread fits right in. It’s great for getting those kids fed (and look at how healthy those kids are!), particularly because of how well it spreads on other healthy-sounding foods like “multigrain toast” and “even whole wheat waffles.” Pictures do most of the messaging work here, because the language in Super Mom’s lines has been lawyered to the point of meaninglessness. Nutella helps her “give my family a breakfast they’ll want to eat.” It is made with “simple, quality ingredients.” The words “nutritious” don’t pass her lips, nor do the words “sugar” and “palm oil,” though they’re first on the list of those simple ingredients. But unless you’re blind, you probably get the message.
So, we could rephrase Polovoy’s defense as “our advertisements play you for suckers, but it’s not our fault it worked.” Some moral high ground we’ve got here. It’s almost as if big food corporations have no regard for…. HEY! LOOK OVER THERE! A PLAINTIFF’S TRIAL LAWYER MADE A LOT OF MONEY ON A CASE!
We do learn, paragraphs later, that food industry lawyers are concerned that they might be compelled to stop exploiting the vagueness of terms like “natural” and “healthy.” Litigation particularly focuses on the use of “evaporated cane juice” as a purposefully deceptive label euphemism for sugar. While we’ve been assured by the numerous industry representatives quoted that such claims are frivolous,
Even so, such cases are raising concerns within the industry.
At a recent food and beverage conference attended by more than 100 lawyers, Madeleine M. McDonough, a lawyer at Shook, Hardy & Bacon who is co-chairwoman of the agribusiness and food safety practice, warned in a session on fraud litigation that it was imperative for companies to comply with federal regulation. “Otherwise, we are dead in the water,” she said, according to two lawyers present, including J. Price Coleman, who is working with Mr. Barrett’s group.
In another time or place, this story might have been headlined “The Threat of Litigation Makes Companies Consider Following the Law.”
It’s not until the final column that Strom gets around to explaining some of the public stakes of the lawsuits
Consumers are increasingly conscious of their eating habits as rates of heart disease, Type 2 diabetes, obesity and other health problems rise. State and local governments are also becoming alarmed at the escalating costs of caring for people with those diseases and are putting pressure on food companies….
Plaintiffs’ lawyers realize that critics may counter that their lawsuits do not have real victims.
Mr. Barrett fought tobacco cases for years on behalf of smokers dying of cancer — and lost because juries agreed with the tobacco companies that smoking was a personal choice. Not until he and Richard Scruggs sued on behalf of states, which had spent hundreds of millions of dollars caring for sick smokers, did they win their record settlement.
Oddly, for an article stressing the links between food lawsuits and tobacco lawsuits, Strom doesn’t directly state the most obvious link: tobacco companies made immense profits selling deadly products and externalizing the costs of using those products onto the broader public. Although winning lawsuits delivered big fees to lawyers, they also served to internalize some of those costs.
As an urbanist I found Upton Sinclair’s sociological observations of the Back-Of-The-Yards and his indictment of labor and predatory credit practices in the Gilded Age far more interesting than his what’s-in-your-sausage-anyway passages. As Eric Schlosser writes in the introduction to a great reprint edition, public response to The Jungle unfortunately picked clean food out of a complex ethos of social justice that included fair working and living conditions. Nonetheless, the idea that people should know, and that wealthy corporations owe us the truth about what was in their food used to be kind of a big deal.