Author Archives: Mark Gottlieb

About Mark Gottlieb

Mark Gottlieb joined the staff of the Public Health Advocacy Institute in 1993 after graduating from Northeastern University School of Law. His efforts have focused on researching tobacco litigation as a public health strategy as director of the Tobacco Products Liability Project, reducing the harm caused by secondhand tobacco smoke through a variety of legal and policy approaches, fostering scholarship using tobacco industry documents, and, more recently, examining legal and policy approaches to address obesity. He is the Executive Director of the Institute and lives in Cambridge, MA with his wife and three children.

PHAI’s Sarah Peck pens op-ed supporting a federal “red flag” law

Sarah Peck, Director of PHAI’s #UnitedOnGuns initiative, recently authored an opinion piece published by The Hill entitled: A federal red flag law would save lives and give Trump a much needed win.  Ms. Peck notes that both red and blue states have enacted some version of these laws, also known as “extreme risk protection orders.”

The piece notes that “passing a federal red flag law could save lives if these incentives have the desired effect, especially in red states where gun deaths tend to be higher as a percentage of the population than in blue states.”  Ms. Peck stated that one study found that for every 10 risk orders issued, at least one suicide was prevented.

Read the full piece here.  It was published on November 17, 2019.

PHAI’s Gottlieb Pens Commentary: “How The Opioid Settlement Could Truly Help The Addicted”

On July 9, 2019. the WBUR (Boston NPR affiliate) opinion blog, Cognoscenti, published an opinion piece penned by PHAI’s executive director seeking to leverage any forthcoming settlement of the the more than 2,000 lawsuits pending against opioid pain manufacturers, their distributors, and their retailers to create an independent foundation to help coordinate a national response to the opioid epidemic.

The commentary, along with an amicus brief by PHAI and other public health organizations submitted to the court overseeing the litigation, considers the public health experience with the Master Settlement Agreement between the states and cigarette companies in 1998. It resulted in large payments from the settling defendants to the states that sued them. But those funds have not been adequately invested to develop the public health interventions and infrastructure needed to minimize the addiction, disease, and death caused by tobacco products.

While it is obviously important for the plaintiffs to recover damages as part of a settlement, the commentary urges that a portion of the settlement should be used to create a national foundation to fund local addiction recovery, provide overdose reversal medication, education, and fostering of promising demonstration projects. Such a foundation should also serve as a watchdog for the opioid medication and addiction treatment industries.

In the face of a crisis, no public health opportunity to address it should be squandered.

These Youth Will Not be Fuuled: An overview of the 2019 Altria Group Annual shareholders Meeting

By Edward L. Sweda, Jr., PHAI Senior Attorney

Howard A. Willard III, chairman and CEO of Altria Group
Howard A. Willard III

Five months before Howard A. Willard III presided for the first time over the Altria Group annual shareholders meeting in Richmond, Virginia, the company carried out a business plan that dominated the discussion at the meeting. On December 20, 2018, Altria Group announced it had spent $12.8 billion to purchase a 35% share of San Francisco-based Juul Labs, Inc. While that expenditure was not enough to buy an outright controlling interest in the company, it was more than enough to provide major controversy throughout the one-hour shareholders meeting on the morning of May 16, 2019.

Willard, Altria’s chairman and Chief Executive Officer, called 2018 a “strong year for the core tobacco business” and touted the JUUL investment, couching it as having been done to provide JUUL to adult smokers.
2018 was also a year that saw a dramatic surge in youth use of e-cigarettes, including JUUL. According to the 2018 National Youth Tobacco Survey, current e-cigarette use among middle and high school students rose dramatically between 2017 and 2018, with over 3.6 million young people currently using e-cigarettes in 2018. This marked a stark reversal of downward trends of such use in previous years.

In the shareholder meeting’s question and answer session, this author noted that, since the December purchase, “a federal class action lawsuit has been filed in Sarasota County, Florida, on behalf of a girl and her parents accusing JUUL of intentionally targeting teenagers for addiction and falsely denying doing so. The lawyers are using Florida’s anti-racketeering statute, alleging the company committed fraud, product liability and deceptive trade practices. In late April, the Public Health Advocacy Institute (for which I work) sent a demand letter to JUUL on behalf of three youths in Massachusetts. The three of them have become addicted to nicotine by using JUUL, and allege a violation of the state Consumer Protection Act. Specifically, the allegations involve breach of the implied warranty of merchantability regarding the design of the product to addicting non-smoking minors and also unfair marketing to teenagers.

“And the plaintiffs here are seeking the establishment of a program for the prevention and treatment of nicotine addiction in young people who use JUUL. And then, of course, just yesterday, the North Carolina Attorney General, Josh Stein, sued JUUL, saying that it had misrepresented the potency and danger of nicotine in its products. He is seeking injunctive relief, the disgorgement of profits and limiting some of the flavors used by JUUL.
“So my question is, what specific steps will Altria Group take to protect its $12.8 billion investment in JUUL by making JUUL less vulnerable to lawsuits of this type?”

Willard responded by acknowledging that, in December, Altria was aware of litigation against JUUL. Then he gave the standard assurance that “we are very committed to helping address the increase in e-vapor use and to encourage JUUL to make sure that their marketing is only to adult cigarette smokers.”

Another shareholder approached the issue of the $12.8 billion investment in JUUL from a different angle. Dr. Andrew Kramer cited three major criticisms of the deal “One that we paid too much. Two, more often, to me, is that here’s no path to control. And lastly, we’re restricted from distributing any other nicotine vaping systems that limits our – that prohibits our ability to build a diversified portfolio in that space.” Willard rejected Kramer’s analysis, calling the deal a “very attractive investment” for Altria.

Jonathan Chafee of Cattaraugus County, New York, asked why Altria had changed its position on raising the purchase age for tobacco products to 21 from two years earlier, when then-CEO Martin Barrington had said that local laws to raise the age to 21 would not help prevent youth use of tobacco because they would just travel to a community without such a law. Willard justified that switch in position by noting the rapid increase in youth use of e-vapor products in 2018.

Olivia Lang of New York asked what Altria sees as its ethical obligation to help their customers make better informed decisions about using products that harm their health. Willard cited the company’s “significant opportunity with products like IQOS and the new e-vapor products like JUUL to convert adult cigarette smokers down the risk continuum.”

Two shareholder resolutions were presented. The first one, supported by Sister Nora Nash, a sister of St. Francis of Philadelphia, called on Altria Group to disclose publicly the nicotine levels of the company’s cigarette brands. Sr. Nash said that “Altria needs to hear the calls of the thousands of people who will die this year from the horrible effects of smoking cigarettes and other products.”

The second resolution was presented by Cathy Rowan the director of socially responsible investments for Trinity Health and a member of the Interfaith Center for Corporate Responsibility. It called for a report on Altria’s policy and procedures governing direct and indirect lobbying, the company’s payments for such lobbying, Altria’s membership in and payments to any tax-exempt organization that endorses model legislation and a description of Altria’s oversight of this activity.

The first resolution garnered 3.9% YES votes, while the second resolution got 27.9% YES votes.

Young people from New York and Nebraska attended the meeting while many more were outside the Richmond Convention Center, chanting slogans such as “People Over Profits” and holding signs with messages including “We will not be FUULed! 1 Pod = 1 Pack”, “Who do you think these flavors are targeting? Fruit Medley” and ”13 is the average age of a new smoker.” Approximately 85 teen leaders came to Richmond to confront Altria Group management over the company’s outrageous conduct.
The youth who came to Richmond for this meeting were able to see through the multi-billion dollar corporate smokescreen and returned to their communities with the powerful messages they delivered to the management of Altria Group, Inc.

Lawsuit Demands Juul Fund Treatment for the MA Adolescents it Addicted

Today, the Public Health Advocacy Institute (PHAI) took the first step in launching a public health class action lawsuit in Massachusetts against Juul Labs, the makers of the most popular e-cigarette in the United States, for designing and marketing its product to appeal to and addict adolescents. This is the first such case brought against Juul in Massachusetts, and the first such lawsuit asking only one thing: for a court to require the company to fund a statewide clinical program for the treatment of nicotine addiction in young people who used Juul e-cigarettes.

While Juul Labs maintains that its product is intended to be used by adult smokers, the product’s design, in fact, caters to adolescents, whose brains are especially vulnerable to nicotine addiction. . Importantly for teens, Juul is designed to be used discreetly. To the untrained eye, a Juul e-cigarette may look simply like a USB drive. The design enables young people to use Juul surreptitiously without parents, teachers, or other adults even knowing. This product feature has helped Juul capture a massive teen market. “Kids use Juul everywhere,” said Matthew Murphy, now 19 years-old and one of the class representatives. “I knew kids who used Juul during class. I used it in my bedroom and my parents couldn’t smell it. They had no idea until long after I was hooked.”

Despite Juul’s claims that its e-cigarettes are intended solely for adult smokers hoping to switch from conventional cigarettes, the company engineered its sophisticated e-cigarettes to yield a physiological response and degree of nicotine ‘satisfaction’ which may actually exceed those of traditional cigarettes. Dr. Jonathan Winickoff is a professor of pediatrics at Harvard Medical School who treats Juul-addicted patients in his pediatric practice. “First of all, Juul is not a recommended or approved product for smoking cessation,” said Winickoff. “On the other hand, a teen can easily inhale a cigarette pack’s worth of nicotine in a Juul pod and, because the product’s design almost eliminates the body’s natural response to bronchial irritation caused by high doses of inhaled nicotine, addiction can occur very quickly”

Juul Labs went from a startup to being valued at over $30 billion in just over three years. Its business model depends on the sale of proprietary “pods” of liquid nicotine, including flavors like Mint, Mango, Fruit, and Crème that help make their e-cigarettes highly palatable and attractive to teenagers.

Marianne Savage is the mother of an addicted teen user of Juul and a class representative. “It is so hard seeing your child struggle with addiction,” said Savage. “It affected his grades, his social life, and his health. We have to fight hard to quit. The ordeal of Juul addiction caused my son a lot of pain and anxiety.”

Because best practices for treatment have yet to emerge, young people suffering from nicotine addiction caused by Juul have very few places to turn for help. “The goal of this lawsuit is to make sure that these kids and their parents in Massachusetts have a place to go to deal with this addiction,” said Mark Gottlieb, Executive Director of the Public Health Advocacy Institute. “Our non-profit law firm is taking on Juul Labs so that the company with the greatest responsibility for teenage addiction to e-cigarettes pays the cost for effective treatment for these young people.”

U.S. Virgin Islands Juries Deliver $113 Million Verdicts Against R.J. Reynolds to families of Deceased Newport Smokers

Newport Sample

The Public Health Advocacy Institute (“PHAI”) is pleased to announce that two tobacco lawsuits tried this month in St. Thomas, V.I., have concluded with verdicts totaling $113.3 million. The cases, Gerald v. R.J. Reynolds Tobacco Co. and Brown v. R.J. Reynolds Tobacco Co., were brought by two deceased smokers who had been hooked on Newport cigarettes as minors.

Rare Double Jury Trials

The cases were tried simultaneously, with both 6-person juries together hearing evidence common to both cases, and each separate jury hearing issues such as medical testimony that was specific to its case. These are the first tobacco cases to be brought in the U.S. Virgin Islands, the first tobacco cases tried together in this way, and among the largest verdicts achieved to date in individual tobacco litigation.

Comment of Tobacco Litigation Expert, Richard Daynard

PHAI President (and Northeastern University law professor) Richard Daynard commented:

“We are delighted that two juries independently concluded that Newport’s original manufacturer, Lorillard, and its successor company R.J. Reynolds,

Ms. Brown as a Teen

sold an unreasonably and unnecessarily dangerous product, marketed it by use of fraud, fraudulent concealment, and conspiring with the other major cigarette producers, and engaged in outrageous conduct with evil motive or in reckless or callous disregard of the rights or safety of others. The juries saw through the defendant’s con game: they addicted these two smokers through deceptive advertising and free samples, made thousands of dollars of profits from their subsequent purchase of Newports, and then tried to blame them for their ‘irresponsible’ decision to keep using these products. The smokers in these two cases were among the more than 20 million Americans who died of cigarette-caused deaths since the first Surgeon General’s Report in 1964.”

Lucien England

Background

Lucien England, the decedent in the Gerald case, began smoking Newport cigarettes as a child, when, as part of a nationwide marketing campaign, free samples of the cigarettes were hung from the doorknobs of the apartment building where he grew up. His death was caused by bladder cancer from smoking Newports.

Patrice Brown, the decedent in the Brown case, began smoking Newport cigarettes as a teenager, influenced by an advertising campaign that promoted Newports as having a “hint of mint,” and died from lung cancer after smoking those menthol cigarettes for decades.

PHAI is a public health research and advocacy non-profit located at Northeastern University School of Law in Boston. www.phaionline.org.

The case was brought by St. Thomas attorney Russell Pate, and tried by attorneys Michael Weisman and Gordon Rhea, with the assistance of PHAI attorney Meredith Lever. Mr. Weisman is Of Counsel with PHAI.  With the Brown case, Weisman reprised his 2010 success in the case of the late Marie Evans, in which a Boston jury awarded $71 million in compensatory damages and $81 million in punitive damages against the maker of Newport cigarettes for causing Evans’ premature death from lung cancer.  Ian A. McWilliams handled the audio-visual services for plaintiff’s exhibits in the Evans as well as the Virgin Island trials.

  • Brown v. R.J. Reynolds Tobacco Co. = $70 m compensatory + $12.3 m in punitive damages
  • Gerald v. R.J. Reynolds Tobacco Co. = $1 m compensatory + $30 m in punitive damages

 

PHAI Submits Comment Opposing Proposed School Food Nutrition Rollbacks

The U.S. Department of Agriculture (USDA) intends to issue a rule to weaken the school food nutritional requirements of the Healthy, Hunger-Free Kids Act of 2012.  The rule would allow flavored milk with added sugar, waive requirement to provide whole grains, and delay reductions of sodium levels in school foods. PHAI submitted a comment to USDA opposing this rollback of healthy eating requirements for school food.

In addition to evidence-based arguments opposing the proposed “flexibilities,” the comment notes our research in collaboration with the Berkeley Media Studies Group from 2016 that examined nutrition and policy proposals in 11 states. We found that two-thirds of relevant legislative or regulatory documents containing at least one policy argument (n=91) argued in favor of the 2012 guidelines. More than half of those arguments raised in favor of the guidelines argued that the guidelines will allow food service directors to provide healthier options or that the guidelines will benefit children’s health. In every state except Oklahoma and Texas, there were more pro-guidelines arguments than anti-guidelines arguments presented.

To learn more about this rollback and to comment (through January 29, 2018) visit this link at Regulations.gov.

This comment was primarily authored by our policy associate, Emily Nink, MS, and edited by Mark Gottlieb, JD.

View PHAI’s comment (pdf)

End of Year Appeal

This year, PHAI continued moving cases against Philip Morris and R.J. Reynolds to trial, went to court to tell Coca-Cola and the American Beverage Association to be honest about the link between sugar drink consumption and disease, and have been working on a number of other potential lawsuits with a public health impact.

We provided help to communities seeking to adopt and implement tobacco prevention policies, promoted smoke-free housing policies, and are working to disseminate the Tobacco-Free Generation approach to phase out tobacco sales entirely over time.

We created and curate a new web-based database of all of the tobacco prevention secondary literature that allows advocates to quickly find current resources and evidence on a range of tobacco prevention topics vital to policy making.

Most recently, we published a report on state policies to help get drinking water to children in schools and childcare centers.

PHAI administers the Violence Transformed project which uses a variety of trauma-informed approaches to utilize art creation and expression as a means to reduce the impact of violence in the community. We are currently collaborating with others on a project that is exploring the role that this approach might have in the context of housing insecurity in the Dorchester neighborhood of Boston.

We also continue to administer the Beyond OSHA project that works to improve the health and safety of some of the most vulnerable workers in the U.S..

In short, we continue to work our hardest to develop and implement “big ideas for advancing public health and social justice.”  We are not afraid to take on the big corporations that profit at a tremendous cost to public health and develop new approaches to make a healthier world.

We do this without the benefit of any huge grants or contracts or gifts.  While some of our income derives from fee for service work, much of our work is funded only through donations to PHAI from individuals who are passionate about public health.


Or mail your check to:
The Public Health Advocacy Institute, Inc.
360 Huntington Avenue #117CU
Boston MA 02115-5000

or contact us for more information at 617.373.2026 or moreinfo@phaionline.org.

FDA Reboots Tobacco Regulation with Harm Reduction

On Friday, July 28, 2017, U.S. Food and Drug Administration (“FDA”) Commissioner Scott Gottlieb unveiled a revamped approach to tobacco product regulation in an announcement that surprised tobacco companies, investors, and the public health community in equal measure.  The goal, as articulated by Gottlieb, will be to regulate products so as to encourage migrating existing consumers from the most lethal combustible tobacco products (i.e., cigarettes) to non-combustible products lower on the continuum of risk. This approach is known as “harm reduction.”  The keystone will be to promulgate product standards so that cigarettes deliver insufficient nicotine to users to create or sustain addiction so that current nonsmokers never start and current smokers either quit or switch to non-combustible tobacco product that present a lower health risk.

This idea, while somewhat radical, is not new.  It had been a topic of discussion at the American Medical Association in the mid-1990s. Congress gave the FDA regulatory authority over tobacco in 2009 with the Family Smoking Prevention and Tobacco Control Act of 2009 (“Tobacco Control Act”).  It prohibited the agency from banning cigarettes or from banning nicotine.  The law does, however, explicitly allow for the potential reduction of nicotine in cigarettes to any level above zero.  The Public Health Advocacy Institute at Northeastern University School of Law produced a white paper on this approach in 2009 and proposed further research on the policy, but enthusiasm at the agency and the Executive Branch was lacking. Northeastern University Distinguished Professor, Richard A. Daynard, characterized non-addictive cigarettes in the New York Times as one of two important strategies that could end the cycle of addiction, disease, and death from tobacco products.

Research to date, including a $50 million research project funded by the National Institute on Drug Abuse, have produced preliminary results supporting the notion that very low nicotine cigarettes will lead to fewer cigarettes smoked and reduced toxic exposure to consumers.  So long as the nicotine levels are very low, compensatory smoking behaviors such as inhaling more deeply and smoking greater numbers of cigarettes do not seem to generally occur.  Some of these preliminary results were presented at Northeastern University School of Law in 2014 by a Principal Investigator of the grant, Dorothy Hatsukami, at PHAI’s conference, “Accelerating Tobacco Endgame Strategies in the United States.”

Another important tool that the FDA can use is to issue rules pertaining to the use of flavors in tobacco products.  While the Tobacco Control Act banned the use of characterizing flavors other than mint or menthol in cigarettes, concerns around the role of flavors in tobacco initiation have intensified in recent years.  “Little cigars,” which closely resemble cigarettes, are available in a range of child-friendly flavors.  E-cigarettes, likewise, have been criticized for offering fruit and candy flavors that would seem to appeal to children.

The question of exempting menthol flavored cigarettes from the flavor ban has been extremely controversial.  The Tobacco Control Act, it was thought, would not have garnered the votes needed to pass Congress were a menthol cigarette ban included.  Rather, the law specified that an expert committee must be convened by FDA to study the issue and issue a report on the health impact of menthol as a characterizing flavor in tobacco products.

The resulting reports concluded that although menthol itself did not contribute to the toxicity of tobacco products, it tended to anesthetize the lungs in a way that facilitates smoking initiation by youth and frustrated cessation efforts.  Further, mentholated cigarettes have been historically marketed in a way that targets African Americans.  Almost 90% of African American smokers prefer menthol cigarettes, which is the most robust sector of the cigarette industry in the United States.  The company that produces the menthol market leader, Newport, was recently acquired by R.J. Reynolds which, in turn, was acquired by British American Tobacco this year. Reportedly, much of the value sought in these acquisitions derived from the Newport brand and the value of menthol cigarettes.

To date, the FDA has taken no action on mentholated tobacco products.  Chicago and San Francisco have passed ordinances restricting sales of menthol tobacco products.  San Francisco’s ordinance, which passed in July of 2017, is a total ban on all flavored tobacco product sales, including menthol.

The FDA announced that it will soon release three Preliminary Notice of Proposed Rulemakings seeking public and stakeholder comment on: 1) pros and cons of nicotine reduction strategies; 2) role of characterizing flavors, including menthol, in youth initiation and as a means to attract smokers to non-combustible tobacco products with less risk; and 3) potential health risks and use patterns of premium cigars.

Non-combustible products such as electronic nicotine delivery systems including e-cigarettes and emerging “heat-not-burn” products would be likely alternatives to non-addictive cigarettes as would nicotine replacement therapies such as the gum and patch.  While this harm reduction approach has many supporters in the public health community, it would have the likely effect of perpetuating the commercialized recreational use of nicotine long into the future.

Since the FDA began regulating tobacco products in 2009, almost every substantive regulatory effort has been met with litigation. This includes 2 lawsuits challenging a host of the law’s provisions; challenges to the legal legitimacy of the report FDA issued about menthol; a successful First Amendment challenge to regulations for graphic cigarette warning labels; and a dozen or so lawsuits challenging the agency’s regulation of e-cigarettes and cigars.

This litany of litigation has, to this point, slowed or partially derailed the agency’s regulatory agenda and has drawn the criticism of many in the public health community. The FDA’s announcement marks a new and more aggressive regulatory vision for tobacco. Many questions remain. Is the scientific evidence base sufficient to justify this new approach?  What will be the effect of inevitable legal challenges from manufacturers and smokers? What are the health impact of non-combustible tobacco products to users and non-users?  How did the political environment in the Executive Branch change to allow for this new strategy to emerge and will it last?

With so many questions remaining and so many potential rules to enact, the timeline for the FDA to implement its new regulatory approach is uncertain.  Based on past experience, it would be reasonable to expect that it may be a decade or more until cigarettes are non-addictive.  Until then, there will be an effort by the tobacco industry to attract millions of consumers to new, less dangerous, but still addictive tobacco products.

Author –  Public Health Advocacy Institute
Reprinted from:

New Lawsuit Alleges Coca-Cola, American Beverage Association Deceiving Public About Soda-Related Health Problems

Despite the scientifically established link between consuming sugar drinks and obesity, type 2 diabetes, and heart disease, the Coca-Cola Company and its trade association, the American Beverage Association, deceive consumers by denying and obscuring soda’s link to those diseases, according to a lawsuit filed today.

Bringing the action filed today in the Superior Court of the District of Columbia are Reverend William H. Lamar IV, pastor of the historic Metropolitan African Methodist Episcopal Church in Washington, DC; Reverend Delman Coates, senior pastor of Mt. Ennon Baptist Church in Clinton, MD; and the Praxis Project, a nonprofit organization focused on building healthier communities.  Praxis had brought, but soon withdrew, similar litigation against Coke and the ABA in California pending the addition of the new plaintiffs.

“For far too long, Coca-Cola has been convincing people, including children, that soda is a source of fun and happiness and that it is safe to drink,” said Rev. Coates.  “But from my vantage point, Coca-Cola is devastating the African American community by fueling an epidemic of obesity and an epidemic of type 2 diabetes.  I visit hospitals and homes, and officiate at funerals. I routinely encounter blindness, loss of limbs, strokes, and even death.  Efforts to talk about the role of sugar drinks and advertising in these epidemics, including many of my own efforts—are hampered by the effects of Coca-Cola’s deceptive marketing.”

The lawsuit quotes Coca-Cola executive Katie Bayne’s much-publicized statement that “[t]here is no scientific evidence that connects sugary beverages to obesity” as representative of the kind of deception that Coke and the ABA publicly engage in. Sugar-sweetened beverage consumption is linked scientifically not only to obesity but also to type 2 diabetes and heart disease. The Centers for Disease Control and Prevention, the federal government’s 2015 Dietary Guidelines for Americans,  the American Heart Association, the American Medical Association, and numerous other prominent medical and health authorities all acknowledge such links.

Plaintiffs and Andrew Rainer Discuss the Lawsuit

“When industry wanted to sell more cigarettes, it used powerful advertising to make smoking seem glamorous, and it tried to muddy the waters and make it seem as if smoking’s link to lung cancer were in doubt,” said Rev. Lamar.  “Soda might not be smoking, but the tactics of the companies are strikingly similar to me:  Market heavily.  Cast doubt on science.  People need and deserve to know the facts about soda consumption. They need to know that the beautiful bodies seen in Coke commercials are not the norm for regular soda drinkers.  And they need to know about the possibility of lost limbs, blindness, sexual dysfunction, and premature death.”

Coca-Cola and the ABA’s larger advertising campaign attacks the science while promoting lack of exercise as the primary driver of obesity and related epidemics.  The ABA wrote that “the anti-soda campaign misleads people with unsound science,” and that “[A]ll calories are the same regardless of food source,” according to the complaint.  James Quincey, Coca-Cola’s new CEO, claimed in a widely publicized interview that “the experts are clear—the academics, government advisors, diabetes associations … a calorie is a calorie.”

Coke also paid health professionals to promote sugar-sweetened beverages on the Internet, including one dietitian blogger who suggested that an eight-ounce soda could be a healthy snack, like “packs of almonds,” according to the complaint. The complaint also cites the widely reported secret funding by Coca-Cola—$120 million between 2010 and 2015—to scientists and projects that publicly advanced the proposition that “energy balance” is more important than reducing soda consumption.  Meanwhile, advertising campaigns like “Be OK” misleadingly implied that light exercise, such as laughing out loud for 75 seconds, offsets the health effects of Coke consumption, or, in the words of the ABA-funded campaign known as “Mixify,” that some afternoon Frisbee earned players “more” soda.

Coca-Cola’s Deceptive Ad Campaign

Other promotions deceptively advance sugar drinks as a safe form of essential hydration. The complaint again cites Coca-Cola’s Bayne, who claimed that “What our drinks offer is hydration. That’s essential to the human body. We offer great taste and benefits … We don’t believe in empty calories. We believe in hydration.”

“We need to put permanent protections into place that protect kids’ health by shielding them from Coke’s omnipresent and deceptive marketing,” said Praxis Project executive director Xavier Morales.  “It seems to me that Coke plays the long game and wants to hook consumers young. But its marketing and advertising are putting too many Americans, especially children and teens of color—who are twice as likely to see an advertisement for soda—on a trajectory that includes obesity, diabetes, and heart disease.  These medical conditions kill or maim. When one in every two Latino and African American youth born since 2000 are expected to get diabetes in their lifetime, we need to stand up and take action.  Praxis is proud to be bringing this lawsuit.”

In Washington, DC, more residents die each year from complications related to obesity than from AIDS, cancer, and homicides combined, according to the city’s health department.

The plaintiffs are represented by Maia Kats, litigation director of the nonprofit Center for Science in the Public Interest; Andrew Rainer and Mark Gottlieb of the Public Health Advocacy Institute; Daniel B. Edelman of the law firm Katz Marshall and Banks, LLP; and Michael R. Reese of the law firm Reese LLP.  The suit seeks an injunction under the District of Columbia’s Consumer Protection Procedures Act, which protects District residents from improper trade practices.  Such an injunction would stop Coke and the ABA from engaging in the unfair and deceptive marketing of sugar-sweetened drinks—including any direct or implied claim that the drinks do not promote obesity, type 2 diabetes, or cardiovascular disease.

“For decades, the tobacco industry engaged in a systemic campaign of deception to cast doubt on the science connecting smoking to lung cancer,” said Kats.  “Today Coca-Cola and the ABA are conducting their own campaign of deception to hide the science connecting sugar-sweetened beverages to obesity, and obesity-related diseases like diabetes and heart disease.  We seek to protect consumers and to stop the deception.”

The Public Health Advocacy Institute’s litigation director Andrew Rainer, who has tried cases against cigarette companies, said, “Coca-Cola and the ABA have taken not just a page but a whole chapter out of Big Tobacco’s playbook for denying scientific truth.  They claim there is “no science” linking their products to obesity, type 2 diabetes.”

Snowflakes Are Found in 84 Degree Richmond: The 2017 Altria Group Annual Shareholders Meeting

By Edward L. Sweda, Jr., PHAI Senior Attorney

As I approached the Greater Richmond Convention Center on the partly cloudy morning of Thursday, May 18, 2017, thoughts of sub-freezing temperatures and snowstorms never entered my mind.  But, before the morning gave way to the afternoon, I realized that I had just seen dozens of snowflakes.

As he opened the meeting just before 9:00 A.M., Altria Group Chairman, President and CEO Martin J. Barrington declared that the company had experienced “another outstanding year” in 2016.  That was followed by a “solid start” in the first quarter of 2017.  He listed four priorities for the company:

  1. Tobacco Harm Reduction;
  2. Marketing;
  3. Supply Chain Responsibility; and
  4. Employees.

The company’s strategies are:

  1. Maximize income from core tobacco businesses over the long term;
  2. Grow new streams with innovative tobacco products (including MarkTen XL, the “fastest growing e-vapor brand” in the last quarter of 2016); and
  3. Manage diverse income streams and a strong balance sheet to deliver consistent financial performance (citing Altria’s ownership of over 10% of AB InBev and its Ste. Michelle Wine Estates ).

I was able to begin the Question and Answer session of the meeting with the following question:

“You and other executives of Altria Group have often referred to tobacco litigation as an issue that is ‘manageable’ and, therefore, should not be troubling to investors.

Yet, just within the past two months, the following developments have occurred:

  • On April 6th, the Florida Supreme Court in the R.J. Reynolds Tobacco Co. v. Marotta case ruled that federal law does not preempt Engle Progeny plaintiffs from bringing strict liability and negligence claims against tobacco companies.
  • On April 12th in the Boatright v. Philip Morris USA, Inc. case, a Florida Appeals Court affirmed a jury award of $35 million against Philip Morris USA, Inc., and reversed the reduction of the award by the trial judge because the smoker was also at fault for his illnesses, ruling that Florida’s comparative fault law does not apply to intentional torts.  This increases the company’s exposure to liability.
  • On April 6th in the Sommers v. Philip Morris case, a Florida state jury awarded $1 million to the widow of a lawyer and real estate developer after finding Philip Morris responsible for his coronary artery diseases and fatal lung cancer.

My question is: do you understand why there are shareholders who believe that the tobacco litigation problem is no longer simply ‘manageable’?

Mr. Barrington’s response was, while acknowledging these and other recent legal setbacks for Altria, to emphasize that in the larger picture, tobacco lawsuits are still “manageable” in the view of Altria’s management.  He admitted that “litigation presents a risk and we devote substantial resources to it.”  Mr. Barrington also claimed that the litigation has been “well managed” and that the slope of the numbers of cases “has been coming down.”  Regarding Engle, he said that it presents a “complex set of individual cases” and that Altria is “working our way through it.”  He complained that the “terms on which those cases are being tried are not particularly fair to the defendants.”  He concluded by stating that tobacco litigation is “a complex matter but it is a finite matter.”

Reality Check’s Jonathan Chaffe asked about the growing number of localities across the country that have adopted Age 21 policies – making it illegal to sell or give cigarettes and other tobacco products to people under age 21.  Mr. Barrington responded by saying that he prefers to minimum age to be 18 rather than 21.  He also raised the potential problem of communities that have passed Age 21 laws being surrounded by other communities that hadn’t, thus encouraging young smokers to travel to a place where the minimum age is still 18.  Finally, he opined that it would be better to have this issue dealt with by Congress, rather than by states or localities.

A 15-year-old student from Elmira, New York asked Mr. Barrington what steps Altria is taking “to ensure that specific populations with higher smoking rates based on ethnicity, income, education and mental health are not being profiled by Altria’s advertising?”  Altria’s current top executive gave an answer that any number of his predecessors have given over the years.  He claimed that the company markets cigarettes “only to adults.”

In response to a question about how Altria plans to respond to the U.S. Department of Housing and Urban Development’s November 2016 policy for smoke-free public housing, Mr. Barrington said that Altria “hasn’t weighed in” on the issue but that, as a general rule, homeowners should decide whether to allow smoking in people’s homes.

A shareholder resolution, sponsored by the Sisters of St. Francis of Philadelphia (see http://osfphila.org/ ), called on the company to “voluntarily commit itself that, by August 15, 2017, it will not allow any images of its logo or products be placed anywhere outside any store, in store windows or anywhere else inside any store selling its tobacco products and will stop incentives to any retailer for such placements.”  The proposal noted that “people of low socioeconomic status have higher rates of cigarette smoking than the general population” and that a city of Philadelphia analysis of licenses found that lower income zip codes “had two-thirds more tobacco retailers per capita than higher-income zip codes and three-quarters more within 1000 feet of a school.”

The resolution received a 2.6% YES vote.

Before, during and after the meeting, at least thirty teenagers demonstrated outside the convention center, carrying teal and black balloons to emphasize how young people who begin using a deadly and addictive product become replacement smokers for Altria’s customers who die from smoking-caused diseases.  The teenagers, who were accompanied be several adults, were representatives of Reality Check New York ) and No Limits Nebraska.

After the 50-minute meeting had ended, I emerged from the meeting room to learn that the approximately 85 attendees were blocked from exiting from the same doors through which they had entered an hour or so earlier.  Instead, everyone had to walk down a long corridor – about the length of a city block – to get to the exit which led to the parking garage.

Why did Altria management take this action, which had never been done before in my experience of having attended annual shareholder meetings for more than 20 years?

If it hadn’t done so, shareholders would have seen dozens of teenagers wearing T-shirts with the message “People Over Profit.”  They would have seen the balloons that represent both tobacco’s death toll and replacement toll.  They would have heard the chants that describe the lies used by tobacco companies to help maximize profit levels at the expense of the health and the lives of the public.

In May 2016, the Urban Dictionary defined “snowflake” as “an overly sensitive person, incapable of dealing with any opinions that differ from their own.”  The key message of this year’s Altria Group shareholders meeting was not that 2016 was an “outstanding” year for the company.  It was that Altria’s management is afraid of opinions that differ from their own, especially when those opinions are espoused by young people who have the courage to speak truth to power – up close and personal.