Oakland non-profit sues soda makers on false advertising claims

It’s a chilly Wednesday evening in late January and all the slotted wooden folding chairs at Mrs. Dalloway’s bookstore in Berkeley are occupied. Some people stand near the entrance behind the 70 seated guests. A few listen from the back, deep into the fiction section.

Oakland author Gary Taubes is slim and trim, with a full gray coif. His pre-teen boys scour through books on a corner bookshelf. Soon enough, they ask their mother for her iPhone so they can play Pokémon Go. Taubes makes a joke of it. The audience laughs.

Taubes is discussing his latest book, The Case Against Sugar. In it, Taubes, an award-winning food science journalist, is the self-professed prosecution against sweet stuff. While sugar has been the dietary bad guy as of late, its known adverse effects on human health go back more than a century. Taubes’ book starts with a case study of diabetes from 1893.

Since then, nutrition and obesity research has been gummed up with ideas like “a calorie is a calorie, and the worst thing you can say about Coca-Cola is that it’s empty calories,” Taubes said in an interview before his presentation.

The assertion that all macronutrients in food are created equal, he says, has helped mask sugar’s role in disease, particularly obesity, type 2 diabetes, heart disease, and other common killers. Marketing campaigns from companies pushing sugar-rich foods and drinks don’t mention those risks.

“I’m trying to shame them out of that practice,” Taubes said.

While Taubes is trying his case against sugar in the court of public opinion, others are taking Coca-Cola, the world’s largest beverage manufacturer, and the American Beverage Association (ABA), the lobbying arm of the beverage industry, to actual court.

Last month, lawyers representing the Praxis Project, which has offices in Oakland and Washington, D.C., filed a lawsuit alleging the nonprofit used significant resources to combat “false advertising” and marketing by Coca-Cola and the ABA have engaged in for decades.

The Praxis Project helps out ground-level organizations that need resources related to health-justice and equity issues, such as addressing the disproportionately high rates of chronic diseases in people of color. Its executive director, Xavier Morales, says a major challenge is educating children about the dangers of sugar while soda companies engage in “shock and awe” marketing and low “predatory pricing” of its drinks.

“They’re not even selling a product anymore,” Morales said. “They’re selling an image.”

The lawsuit, filed January 17 in the U.S. District Court for the Northern District of California, alleges that Coca-Cola used front groups to engage in a “deceptive campaign” by falsely representing and manipulating scientific research to shift focus away from diseases linked to their products. The lawsuit, citing internal company documents, alleges these strategies are a core of the company’s marketing strategy.

According to the text of the suit, the company relied heavily on paid experts to back up their “a calorie is a calorie” argument—or that all food calories are created equal, regardless of their source—while stressing “energy balance,” or light exercise to offset the health consequences of dietary choices.

The lawsuit argues that Coca-Cola and the ABA executed an “aggressive campaign of disinformation” on everything from phone apps to billboards featuring celebrities to ads on Buzzfeed.

For example, in its “Be OK” campaign, the suit alleges that Coca-Cola advertised that a 12-ounce can of its trademark beverage contains 139 “happy calories,” which could be easily offset by “75 seconds of laughing out loud” or “10 minutes of letting your body do the talking.”

According to the suit, Coca-Cola spent $22 million in 2014 on physical activity-related programs that doubled as soda and product ads. This includes, among other tactics, distributing branded soccer balls at the World Cup.

Beverage-makers also pay dietitians to blog and post to social media in an effort to confuse the public of the detrimental health effects of excessive sugar consumption, the lawsuit alleges. One specific post cited in the lawsuit equated a can of soda to a sensible snack like “a pack of almonds.”

These tactics, the lawsuit alleges, are tantamount to those used by those making and selling cigarettes.

“Coca-Cola continues to target children with a material segment of its advertising,” the suit states. “Like the tobacco industry, Coca-Cola needs to replenish the ranks of its customers, and it tries to recruit them young.”

The Praxis suit was filed on behalf of the nonprofit itself, arguing it had to “divert resources away from other important health and nutrition initiatives.”

“Coca-Cola pushes a lot of product in Oakland,” said Maia Kats, an attorney representing Praxis.

The lawsuit did not specify how much money Praxis has spent on efforts related to soda or which of the group’s other initiatives weren’t funded at their expense. According to its tax records, in 2014, the latest year available, their total revenue was less than $2.2 million.

The suit asks the court to “cover the cost of [Praxis’] advocacy, including for meetings with policy makers in various local and state regulatory bodies.”

In addition to an unspecified reimbursement for costs incurred combatting soda advertising and marketing, Praxis wants Coca-Cola and the ABA to publicly release any files acknowledging known health implications of consuming their products, fund a public health campaign educating consumers on those risks, and cease “all deceptive advertising and promotions,” especially campaigns aimed at children under the age of 12.

Kats, an attorney for the Center for Science in the Public Interest, a D.C.-based watchdog group that advocates for a healthier food system, said the parties representing Praxis have been working to combat companies like Coca-Cola for decades. The basis of the lawsuit, she said, is that it’s illegal to market a product as being safe when science says something entirely different.

“It’s important people understand this litigation is not about stopping choice” of products on the market, she said. “The issue is transparency.”

Coca-Cola did not respond to email requests to discuss the lawsuit, although they often defer to the ABA for comment. An ABA spokesperson wrote that “unfounded accusations” such as those in the Praxis lawsuit “won’t do anything to address health concerns” while actions the association is taking, like pairing with health groups and community organizations to reduce the calories Americans get from beverages, do.

As of Friday, neither group had filed a legal response. The first hearing in the suit is scheduled for April 6 in San Francisco.

This is not the first suit to fight soda advertising and marketing in court.

Kats and other lawyers involved in the Praxis litigation filed a class-action lawsuit in 2009 against Coca-Cola regarding unfounded health claims about its Vitaminwater line of beverages. In April, a New York judge accepted a settlement agreement that bars Coca-Cola from claiming that Vitaminwater will “keep you healthy as a horse.”

The Praxis lawsuit was filed in the same court that, in May, upheld a San Francisco Board of Supervisors’ unanimous vote that required warning labels on advertisements for sugar-sweetened beverages.

The ABA and Coca-Cola were the principle financial backers of the campaign against Oakland’s Measure HH, a one-cent per ounce tax on sugar-sweetened beverages. Together, the companies paid more than $7.3 million to defeat HH, the majority of which went to fund an ad campaign that labeled HH a “grocery tax.” All told, in 2016, sodamakers spent more than $42 million against soda tax initiatives across the country, according to CSPI.

Oakland passed its tax—modeled after the first such tax passed in Berkeley in 2014—by 61 percent of the vote. Voters in San Francisco, Albany, and Boulder, Colo., also passed similar taxes on November 8. Since then, Cook County, Illinois, which encompasses Chicago, passed one as well, joining Philadelphia as another major American city to apply “sin taxes” to sugary drinks.

Last month, Praxis hosted representatives from the three Bay Area cities that recently passed soda taxes for a discussion. Morales said he shared his experiences of serving on a Berkeley board that recommends to city council members ways to spend revenue from the taxes.

While Praxis is considered a national organization, Morales said focuses much of his attention is on California and the San Francisco Bay Area.

“I’m a Berkeleyan,” he said. “It’s hard not to be involved in local issues.”

But not all of the Bay Area’s prominent sugar critics agree that this lawsuit is the best way to seek retribution for the ills created, in part, by sugary drinks.

Dr. Robert Lustig is a pediatric endocrinologist at UC San Francisco, and he is a prominent champion of the argument that sugars, like sucrose and high fructose corn syrup, cause obesity, type 2 diabetes, and other preventable conditions. (Lustig’s favorite saying is “a calorie is not a calorie.”)

Lustig also studied at the UC Hastings College of the Law. As a medical professional, Lustig despises sugar, but his legal training has him questioning the effectiveness of the Praxis lawsuit.

“Science being tried in the court doesn’t work very well,” he said.

Suing Coca-Cola and the American Beverage Association on the grounds of false advertising, however, is a losing argument, he argued, because the company and the lobbying group never claimed that sugar-sweetened beverages are healthy. “I don’t think this is going to be an effective strategy,” Lustig said.

While he agrees with the lawsuit’s intentions, he thinks the argument should be based on “failure to warn,” meaning that a product causes harm and its maker hasn’t adequately warned the user. For soda, he says, this argument could be advanced for “eggshell patients,” or those at a higher risk of being harmed by a product.

One example of that, Lustig says, is the warning on diet sodas that use the artificial sweetener aspartame. For one in 20,000 people with a condition known as phenylketonuria, consuming aspartame comes with an advanced risk of brain cell death. “If it didn’t have that warning on there, they could sue,” Lustig said.

Lusting said that Latinos and Native Americans, who have two separate gene variants that affect the production of fat in the liver, are the most likely groups to be negatively affected by the sugar in sodas. As a result, these ethnic groups are more at risk of diseases caused by the consumption of sugar-sweetened beverages. They’re more likely to develop metabolic syndrome, a cluster of diseases that increases a person’s risks for serious but preventable diseases. Those include heart disease, obesity, and diabetes.

Because Praxis represents Latinos, among other groups of color, Lustig says a suit built on the failure-to-warn argument, not the false advertising claim, would have more legal merit.

Speaking that night in Berkeley, the first U.S. city to pass a soda tax, Taubes acknowledged he was preaching to the choir. He questioned the likelihood of a successful lawsuit against sodamakers when so many people believe “a calorie is a calorie” and obesity can be cured with exercise.

But, he said, educated consumers are forcing the food and beverage industries to see the “writing on the wall.” Even though they are increasingly offering sugar-free options, it may not be enough.

“I actually think the soda industry is at that point,” Taubes said. “When your primary product is sugar … how do you diversify?”

But the focus of Taubes’ book isn’t on legal battles with sugar.

“My interest has always been in the science,” he said. “If we’ve gotten the science right, it wouldn’t have been an issue. We wouldn’t have to sue people.”

A version of this story also appears in the East Bay Express.