This is a talk on Zoom about my new book, Let’s Ask Marion.
6:30 at the Jewish Community Center. Information and registration (required for Zoom link) here.
It’s been a tough month for the soda industry.
The ad, released by Coca-Cola in late November on social media as part of its “OpenYourHeart” Christmas advertising campaign shows young people who are outsiders to the Mixe indigenous community arriving to build a Christmas tree of wood and Coca-Cola bottle caps, distributing Coca-Cola to young people from the community and transmitting the message “Stay United” in the Mixe language.
Al Jazeera produced a video analysis.
I keep getting asked “why pick on sodas?” The answer: they are an easy target, low-hanging fruit in public health terms. They contain sugars but nothing else of redeeming nutritional value, are strongly associated with diets that raise the risk of obesity and its consequences, and are heavily marketed as what you need to be happy. The industry is fighting hard and on many fronts to maintain sales. Advocates are keeping its lawyers and lobbyists busy.
All this was just in the last month. Expect more to come.
There seems to be no end to such stories, many of which I cover in Soda Politics: Taking on Big Soda (and Winning)—officially out October 1 but being shipped right now.
Here’s one I didn’t cover.
2008: The U.S. Conference of Mayors (USCM) passed a resolution supporting “increased resources for cities to help combat obesity and fund obesity prevention, including consideration of revenues from the major leading contributors of the nation’s obesity epidemic, including calorically sweetened beverages, fast food, and high calorie snacks.” Translation: taxes
2010: USCM posted an article in its online newspaper about mayors considering soda taxes.
2011: The American Beverage Association (ABA) became a member of the USCM’s Business Council, and partnered with the group to start a $3 million childhood obesity prevention program. Would this aim to reduce intake of sugary beverages? Nope.
Instead, the program focused on:
2015: The winning projects were:
2015: Here’s what Scientific American says about all this (I’m quoted).
There is no mention in the application of decreasing consumption of calorically sweetened beverages, fast food, or high calorie snacks, which are all specifically cited in the 2008 USCM resolution as contributors to the nation’s obesity epidemic…The beverage industry seems to be obsessed with physical activity, as evident from the recent spate of stories about Coca-Cola funding studies that point the blame for obesity at caloric expenditure, rather than caloric intake. The science overwhelmingly does not support this.
It’s tough to be a soda company these days, what will sales of both sugary and diet drinks falling steadily. Hence, this May 15 press release:
Alliance for a Healthier Generation and America’s Beverage Companies Start Work In Los Angeles Area Neighborhoods As Part of Community Initiative To Help Reduce Beverage Calories Consumed
(LOS ANGELES) –The Alliance for a Healthier Generation and America’s beverage companies announced today that work will begin in four Los Angeles area communities as part of a highly focused initiative to help reduce beverage calories consumed by 20 percent per person by 2025 in neighborhoods where there has been less interest in or access to lower-calorie and smaller-portion beverages.
…The beverage companies will utilize a range of marketplace activities in these neighborhoods in an effort to help people reduce their calories, such as making lower-calorie and smaller-portion beverages more available in stores, providing incentives for consumers to try these options and displaying new calorie awareness messages at points of sale. These activities will allow companies to test and learn in order to develop the best practices that can be implemented elsewhere.
Here’s what people in these neighborhoods will see:
The press release says nothing about:
Is this public relations or something meaningful? I’m skeptical but do try to stay open-minded about such things.
Let’s wait and see how this plays out.
The NY State Supreme Court, Appellate Division, has turned down the Bloomberg administration’s appeal (New York Statewide Coalition of Hispanic Chambers of Commerce v New York City Dept. of Health & Mental Hygiene).
The court’s decision in this case begins on page 22:
Like Supreme Court, we conclude that in promulgating this regulation the Board of Health failed to act within the bounds of its lawfully delegated authority. Accordingly, we declare the regulation to be invalid, as violative of the principle of separation of powers.
…we find particularly probative the regulation’s exemptions, which evince a compromise of social and economic concerns, as well as private interests. As indicated, the regulatory scheme is not an all encompassing regulation. It does not apply to all FSEs [food service establishments]. Nor does it apply to all sugary beverages. The Board of Health’s explanations for these exemptions do not convince us that the limitations are based solely on health-related concerns (pages 17, 18 of the decision).
OK. So the city should have made the rule apply to all food service places and all sugary beverages. Live and learn.
Mayor Bloomberg says the city will appeal:
Since New York City’s ground-breaking limit on the portion size of sugary beverages was prevented from going into effect on March 12th, more than 2,000 New Yorkers have died from the effects of diabetes. Also during that time, the American Medical Association determined that obesity is a disease and the New England Journal of Medicine released a study showing the deadly, and irreversible, health impacts of obesity and Type 2 diabetes – both of which are disproportionately linked to sugary drink consumption. Today’s decision is a temporary setback, and we plan to appeal this decision as we continue the fight against the obesity epidemic.”
The American Beverage Association is pleased. It’s headline: “Hey New York – Your Beverage Is Still Your Choice!”
We are pleased that the lower court’s decision was upheld. With this ruling behind us, we look forward to collaborating with city leaders on solutions that will have a meaningful and lasting impact on the people of New York City.
Even if the city loses the final appeal, the 16-ounce soda cap is the writing on the wall for soda companies.
Cutting down on the portion sizes of sugary drinks is still a really good idea.
Here’s what the news media say about it:
Here’s my monthly (first Sunday) Food Matters column from the San Francisco Chronicle. The question (edited) came from a reader of this blog.
Q: You view New York City’s cap on any soda larger than 16 ounces as good for public health. I don’t care if sodas are bad for us. The question is “Whose choice is it?” And what role should the nanny state play in this issue?
A: Your question comes up at a time when the New York State Supreme Court is hearing arguments about whether New York City’s health department has the right to establish a limit on soda sizes.
As an advocate for public health, I think a soda cap makes sense. Sixteen ounces provides two full servings, about 50 grams of sugars, and 200 calories – 10 percent of daily calories for someone who consumes 2,000 calories a day.
That’s a generous amount. In the 1950s, Coca-Cola advertised this size as large enough to serve three people.
You may not care whether sodas are bad for health, but plenty of other people do. These include, among others, officials who must spend taxpayer dollars to care for the health of people with obesity-related chronic illnesses, employers dealing with a chronically ill workforce, the parents and teachers of overweight children, dentists who treat tooth decay, and a military desperate for recruits who can meet fitness standards.
Poor health is much more than an individual, personal problem. If you are ill, your illness has consequences for others.
That is where public health measures come in. The closest analogy is food fortification. You have to eat vitamins and iron with your bread and cereals whether you want to or not. You have to wear seat belts in a car and a helmet on a motorcycle. You can’t drive much over the speed limit or under the influence. You can’t smoke in public places.
Would you leave it up to individuals to do as they please in these instances regardless of the effects of their choices on themselves, other people and society? Haven’t these “nanny state” measures, as you call them, made life healthier and safer for everyone?
All the soda cap is designed to do is to make the default food choice the healthier choice. This isn’t about denial of choice. If you want more than 16 ounces, no government official is stopping you from ordering as many of those sizes as you like.
What troubles me about the freedom-to-choose, nanny-state argument is that it deflects attention from the real issue: the ferocious efforts of the soda industry to protect sales of its products at any monetary or social cost.
The lawsuit against the soda cap is a perfect example. It is funded by the American Beverage Association, the trade association for Coca-Cola, PepsiCo and other soft-drink companies, at what must be astronomical expense.
To confuse the public about corporate profits as a motive, the beverage association enlisted two distinguished civil rights groups – the NAACP and the Hispanic Federation – to file an amicus brief on behalf of its lawsuit.
Never mind that the obesity rate for the communities these groups represent is considerably higher than average in New York City, and that these neighborhoods would benefit most from the soda cap. The amicus brief argues that the soda cap discriminates against them.
The brief, however, neglects to mention that both amicus groups received large donations from soda companies and that the NAACP in particular has a long history of partnership with Coca-Cola.
Financial arrangements between soda companies and ostensibly independent groups demand scrutiny. National and local reporters – bless them – have done just that.
They report, among other connections, that one of the law firms working for Coca-Cola wrote the amicus brief, and that a former president of the Hispanic Federation just took a job with that company.
Last fall, the East Bay Express exposed how the soda industry exploited race issues to divide the electorate and defeat the Measure N soda tax initiative in Richmond. It revealed
that the beverage association not only paid for the successful “grassroots” campaign against Measure N but also encouraged views of the soda tax as racist.
Driven by this experience, the soda industry is repeating this tactic in New York City.
Is a cap on soda sizes discriminatory against groups working for civil rights? Not a chance.
Public health measures are about alleviating health disparities and giving everyone equal access to healthy diets and lifestyles. This makes public health – and initiatives like the soda cap – broadly inclusive and democratic.
If anything is undemocratic and elitist, it is suing New York City over the soda cap.
In funding this lawsuit, the soda industry has made it clear that it will go to any length to protect its profits, even if it means discrediting the groups that would most benefit from this rather benign public health initiative.
Who knew that Wednesday’s New York State Supreme Court hearing on the lawsuit filed against New York City’s cap on sodas larger than 16 ounces would turn out to be a debate about race relations?
Let’s be clear. This lawsuit is about only one thing and one thing only: to protect the profits of Big Soda—mainly, Coca-Cola and PepsiCo. The lawsuit is funded by their trade association, the American Beverage Association (ABA), at what must be astronomical expense.
But to shift attention away from profit as a motive, the ABA enlisted two organizations of underrepresented groups—the NAACP and Hispanic Federation—to file an amicus brief on behalf of the soda companies. The brief argues that the soda cap discriminates against citizens and small-business owners in African-American and Hispanic communities. But it neglects to mention that both “friends of the court” received funding from soda companies.
The financial arrangements between Big Soda and such groups demand further examination. Fortunately, we have Michael Grynbaum at the New York Times, who explains that:
The obesity rate for African-Americans in New York City is higher than the city average, and city health department officials say minority neighborhoods would be among the key beneficiaries of a rule that would limit the sale of super-size, calorie-laden beverages.
But the N.A.A.C.P. has close ties to big soft-drink companies, particularly Coca-Cola, whose longtime Atlanta law firm, King & Spalding, wrote the amicus brief filed by the civil rights group in support of a lawsuit aimed at blocking Mr. Bloomberg’s soda rules…Coca-Cola has also donated tens of thousands of dollars to a health education program, Project HELP, developed by the National Association for the Advancement of Colored People. The brief describes that program, but not the financial contributions of the beverage company. The brief was filed jointly with another organization, the Hispanic Federation, whose former president, Lillian Rodríguez López, recently took a job at Coca-Cola.
Last fall, the East Bay Express exposed how the soda industry exploited race issues and used them to divide and conquer in defeating the Measure N soda tax initiative in Richmond, California.
The No on Measure N workers’ paychecks were signed by political consultant Barnes Mosher Whitehurst Lauter & Partners (BMWL), which had been hired by the American Beverage Association….By the time that Big Soda had arrived, the issue of race was already a factor in the campaign. Some opponents of the tax had alleged that it was racist, arguing that it would unfairly harm low-income residents in the city. And the No on Measure N campaign…nurtured that sentiment. Indeed, there is evidence that the beverage association helped keep race at the forefront of the campaign as part of a strategy that exploited Richmond’s existing tensions.
…the beverage industry discovered a winning formula in Richmond last year that it might be able to replicate elsewhere…And if that were to happen, it could drive a wedge through traditional Democratic constituencies in many communities, with blacks and Latinos opposing their longtime political allies — progressives and environmentalists — just like they did in Richmond.
Is a cap on soda sizes discriminatory? Quite the contrary.
Public health measures like this are about removing health disparities and giving everyone equal access to good nutrition and health. This makes public health—and initiatives like the soda cap—democratic, inclusive, and anything but elitist.
But I can’t think of anything more elitist, less inclusive, and more undemocratic than suing New York City over the soda cap.
In funding this suit, the soda industry has made it clear that it will go to any lengths at any cost to protect its profitability—even to the point of dragging along with it the very groups that would most benefit from the initiative.
If the American Beverage Association and its corporate members really cared about Black and Hispanic groups, it would stop target marketing, stop marketing to children, and stop pretending that sugar-sweetened beverages are an important part of active, healthy lifestyles. It certainly would stop wasting these groups’ time and credibility on anti-public health lawsuits.
Mayor Bloomberg’s cap on soda sizes at 16 ounces has elicited a hard-hitting, Friday-afternoon (let’s hide it if we can), but otherwise well organized cease-and-desist lawsuit from the soft drink industry.
The suit, New York Statewide Coalition of Hispanic Chambers of Commerce et al. v. The New York City Department of Health and Mental Hygiene et al., is represented by Latham & Watkins, a law firm that often represents the American Beverage Association (ABA), the leading soft-drink trade group and one of the plaintiffs in this case.
Other plaintiffs are the Teamsters Local 812, the Korean-American Grocers Association of New York, the National Association of Theatre Owners of New York State, and—-no surprise—the National Restaurant Association.
These groups are all concerned that the soda cap might encourage people to reduce soda sales (its point, after all). This would drive down profits for stores, concession stands in movie theaters, restaurants, and the people who distribute sugary beverages.
The basis of the suit includes these complaints [with my comments]:
This lawsuit is clearly about profits, not health. Let’s hope the Court throws it out.
The first 14 of the documents are available in a zip file here (but only for the next week or so).