Tobacco Warriors Set Their Sights On The Grocery Store

What do tobacco and food labels have in common? Not much, unless you consider the successful attorneys who beat the tobacco industry a decade ago for record sums. Now these very same plaintiffs’ attorneys--indefatigable and brilliant--have zeroed in on a new frontier: the grocery store aisles. They smell liability over what’s labeled Kosher, all natural, real fruit, or whole grain, and they believe they have a compelling case to make.

This summer, consumer activists have teamed up with these powerful allies to launch an all-out attack on product labels they believe to be misleading and tantamount to false advertising, if not a crime. General Mills, for instance, is facing a lawsuit from two California mothers who have the Center for Science in the Public Interest in their corner. They want the “natural” label removed from the company’s Nature Valley products because they contain processed ingredients. The suit is only one of 25 cases that, according to the New York Times, have been recently filed against companies such as ConAgra, PepsiCo, and Heinz, over allegedly deceptive labels.

Plaintiffs’ attorney Don Barrett, who won record settlements from Big Tobacco ten years ago and is among a host of lawyers seeking big paydays over the labeling issue, summed up the activist position in just two sentences, stating that mislabeling “is a crime” and that “these products should be taken off the shelves.” In what amounts to the most significant case to date, a federal court in California has been asked to do just that by halting sales of ConAgra products ranging from Pam cooking spray to Hunt’s canned tomatoes.

What is perhaps most troubling in corporate circles is that the fight isn’t limited to the food industry. Just a few weeks ago, Pfizer Consumer Healthcare agreed to discontinue claims that its Centrum vitamin supplement products support “breast health” and “colon health” after the Center for Science in the Public Interest threatened another high-profile lawsuit.

At the same time, other activists are attacking the product labeling issue from the other flank. This November, California voters will consider a ballot initiative that would require food manufacturers to label products that contain ingredients enhanced via biotechnology.

All the while, major news outlets are paying a lot of attention to these activist salvos, which have been increasing in frequency over the past three to four years and are just now reaching critical mass. That’s because media interest is a lynchpin in the activist strategy. Consumer groups see high-profile lawsuits and ballot initiatives as a way to force the issue into the public spotlight and compel reforms without having to rely on government regulators, whom they see as too often colluding with big corporations on labeling issues.

Traditionally, food and pharmaceutical companies have worked with the Food and Drug Administration (FDA) to reach compromises on labeling rules that balance the need for effective marketing with concern for consumer safety. The process is slow, as evidenced by the fact that it took nearly a decade to reach final agreement on the ingredient and nutrition labels we now see on our beverage cans, pasta sauce jars, cereal boxes, and just about every other product we see on store shelves. Frustrated by both the length of the process and the resulting rules, the activists are now stepping up their activities in the courtroom, voting booth, blogosphere, and newsroom.

Further complicating matter is the fact that companies don’t always know what’s constitutes compliance. “The FDA hasn’t set clear enforcement standards for claims like ‘All Natural,’ ‘100 percent Whole Grain,’ or ‘Made with Real Fruit,’” says Richard Frank, a leading food labeling, advertising, inspection, and safety attorney with Olsson Frank Weeda PC. “As a result, we are seeing plaintiff class action attorneys filling in the gap where clear standards don’t exist and ‘piling on’ where FDA has issued a Warning Letter or taken other enforcement action.”

What all of this means is that the companies in the crosshairs--and those just outside them--must think differently about labeling practices and how they communicate with consumers on a level above the customary marketing relationship. They themselves must act like consumer advocates, describing their labeling practices and explaining their ingredients with greater clarity and crediblity. Specifically, they must:

1. Accept new levels of transparency. With new levels of consumer awareness around labeling issues comes a new level of responsibility for food and pharmaceutical manufacturers. If a claim on a label can’t be easily justified or substantiated, it is best not made in an environment rife with intensified scrutiny.

2. Speak directly to consumers. Labeling issues are no longer being settled behind closed government doors; they are being debated under a glaring public spotlight. That means what used to be a “grasstops” play has evolved into a grassroots imperative. The issue is an example of how the line between public affairs and public relations is getting more blurry every day. As such, food and pharmaceutical companies need to make the most of social media connections and optimized Web properties that allow them to take back control of the conversation--even as they bypass the an increasingly skeptical traditional media filter.

3. Understand that emotions trump science on issues of health and safety. The FDA seal of approval and the mountain of scientific evidence that support companies’ labeling practices aren’t enough to assuage fear and anxiety where consumer health and safety are concerned. Emotion, not logic, is what will win this debate. That means companies can’t just tell consumers their products are healthy and safe; they have to show them with heavily optimized and engaging images, video, and stories that drive home the ways their products contribute to healthy lifestyles, something that can now be more easily done as Google analytics increasingly optimize for the spoken word.

4. Enlist third party support. In many cases, the best third-party advocates hail from the credibility-rich realms of academia, government, or Washington D.C. think tanks. This is not one of those cases. Consumers need to hear from others among their ranks that food and supplement products really are all they are labeled to be.

5. Target California. The Golden State is ground zero for movements such as these, which often gain momentum among friendly audiences out west and then spread across the country. That means companies need to emphasize California media and geo-target their Search Engine Optimization (SEO) and Marketing (SEM) campaigns for the region as a means to nip the movement in the bud.

The fact that more than a dozen high-profile attorneys that used to sue big tobacco are migrating toward food and pharmaceutical labeling issues speaks volumes about what lies in store for the food industry. The sooner that target companies--and those that will become targets in the coming months--begin to control this highly threatening conversation, the better positioned they will be to win in the courtroom, the Court of Public Opinion, and among regulators that are closely monitoring the outcome of what could be an epic legal and reputational battle.

Follow Richard Levick on Twitter and circle him on Google+, where he comments daily on the issues impacting corporate brands. Richard Levick, Esq., President and CEO of LEVICK, represents countries and companies in the highest-stakes global communications matters, from the Wall Street crisis and the Gulf oil spill to Guantanamo Bay and the Catholic Church. Mr. Levick was honored for the past three years on NACD Directorship’s list of “The 100 Most Influential People in the Boardroom,” and is the co-author of three books, including [i]The Communicators: Leadership in the Age of Crisis.
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[Image: Flickr user Dean McCoy]

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2 Comments

  • John Davidson

    Not 1 Death or Sickness Etiologically Assigned to Tobacco.  All the diseases attributed to smoking are also present in non smokers. It means, in other words, that they are multifactorial, that is, the result of the interaction of tens, hundreds, sometimes thousands of factors, either known or suspected contributors - of which smoking can be one.

  • John Davidson

    How could Big Tobacco be sued when there was never any proof smoking causes anything in anyone!

    JOINT STATEMENT ON THE RE-ASSESSMENT OF THE TOXICOLOGICAL TESTING OF TOBACCO PRODUCTS" 7 October, the COT meeting on 26 October and the COC meeting on 18 November 2004.
    "5. The Committees commented that tobacco smoke was a highly complex chemical mixture and that the causative agents for smoke induced diseases (such as cardiovascular disease, cancer, effects on reproduction and on offspring) was unknown. The mechanisms by which tobacco induced adverse effects were not established. The best information related to tobacco smoke - induced lung cancer, but even in this instance a detailed mechanism was not available. The Committees therefore agreed that on the basis of current knowledge it would be very difficult to identify a toxicological testing strategy or a biomonitoring approach for use in volunteer studies with smokers where the end-points determined or biomarkers measured were predictive of the overall burden of tobacco-induced adverse disease."
    In other words ... our first hand smoke theory is so lame we can't even design a bogus lab experiment to prove it. In fact ... we don't even know how tobacco does all of the magical things we claim it does.
    The greatest threat to the second hand theory is the weakness of the first hand theory.