The Corporate Quest for Preemption of State Laws: Impact on Public Health

For the most part, big corporations and their conservative supporters oppose federal involvement in their business. They see “big government” as the problem, not the solution and prefer free market to regulatory solutions to almost every problem. If government does need to be involved, big business would usually rather interact with state governments, which are sometimes seen as more malleable or subject to competition with other states. For example, licensing of corporations is a state function and in order to attract business, states compete to set the most attractive rules.

Recently, however, tobacco, gun, automobile, pharmaceutical and other companies have sought to move legal cases against them from state to federal court or to overturn state laws that hold them to a higher standard than do federal laws. Philip Morris, for example, tried unsuccessfully to move a tobacco lawsuit filed in Arkansas state court to federal court and the gun industry has long fought to move its battles to federal rather than state courts and legislatures.


Federal preemption is a constitutional principle by which federal law supersedes state law when the two conflict or, more rarely, when a federal law is so comprehensive that there’s no room for the state to act.(1) Proponents of preemption argue that when a federal agency regulates a product, only federal courts can hear liability claims against the manufacturer, even if the product has harmed citizens of a specific state.

Why corporations prefer federal courts

Why do corporations now prefer federal to state courts or regulation? One compelling argument is that in theory federal review is more rational, setting a single national standard that can be reviewed using the same body of (federal) law. If, for example, each state set different standards for automobile safety, car manufacturers might need to produce different models for each state and face contradictory mandates from state courts. In fact, several states, including California and New York, have set higher pollution control standards than the federal rules, leading to a federal court challenge by the auto industry and a National Highway Safety Administration proposal that would preclude states from adopting stricter fuel emissions standards for SUVs.(2) But efficiency is only one argument in favor of federal preemption. More practically, corporations prefer federal courts because they expect more favorable decisions. Federal courts generally award lower damages than state courts and corporate lawyers find it easier to master a single code of law rather than 50 separate ones. And with an increasingly conservative federal judiciary, corporate lawyers are more likely to find federal than state judges who share their free market values. Conversely, according to Edward Sveda, senior attorney for the Tobacco Products Liability Project at Northeastern University, plaintiffs in state cases forced to go to federal court are at a disadvantage because federal judges are less familiar with state statutes and starting in federal court reduces avenues for later appeal.(3)

Arguments against preemption

Critics of preemption of state tort law argue that such preemption is bad law and bad public policy. “Immunizing the makers of products that cause injury simply because, for instance, these products have been approved for marketing by a federal agency harms both the injured people and society generally”, claims Brian Wolfman, the Director of the Public Citizen Litigation Group in Washington, D.C..(1) Wolfman distinguishes between preemption of state “positive law,” direct state regulatory action in an arena also covered by federal regulations, and preemption of state “common law,” the laws set by previous state legal decisions. The latter, he argues, should not be preempted because it provides consumers with an important additional tool for deterring harmful corporate behavior. Another reason to oppose preemption of state action is the somewhat frequent failure of federal regulatory agencies to fulfill their mandate. For example, a 2006 survey of FDA employees by the Union of Concerned Scientists found that 61 percent of the respondents knew of cases where “Department of Health and Human Services or FDA political appointees have inappropriately injected themselves into FDA determinations or actions.”(4) Reports that the FDA approved Vioxx, the pain killer made by Merck, and Avandia, a diabetes medication made by GlaxoSmithKline, despite evidence of dangerous side effects illustrate the shortcomings of federal oversight. State tort liability may serve as a more effective deterrent against corporate promotion of dangerous products.

Under the Bush Administration, preemption has also found support within federal agencies. In 2006, the Food and Drug Administration approved new rules on drug labeling that pre-empted state laws, making it easier for drug companies to defeat consumer lawsuits. The National Highway Traffic Safety Administration proposed rules that would preempt state laws on safety standards for car roofs. In addition, last year, at the White House’s behest, the House approved food safety standards that would preempt states from setting higher standards than those set by the FDA.(5) Professor Thomas O. McGarity, a tort law expert at the University of Texas School of Law told the New York Times, “It’s very troubling. There is a certain hubris on the part of regulatory agencies to make the assumption they are doing their job perfectly and should not be second-guessed, especially in light of repeated histories of agencies being misled by industries.”

Supreme Court Rejects Philip Morris Plea for Federal preemption

On June 11, 2007, opponents of federal preemption won an important victory in the US Supreme Court. In a unanimous opinion, the Supremes rejected Philip Morris’s contention that since it was following federal FTC regulations in its cigarette testing and marketing program, it was acting as an agent of the federal government and was therefore exempt from Arkansas law. The Supreme Court disagreed, sending the case back to state court for resolution. As Matthew Myers, President of the Campaign for Tobacco-Free Kids, noted, “only a tobacco company would have the gall to argue that its deceptive practices are government-sanctioned acts.”(6) The plaintiffs, two young smokers, claimed that the company was violating Arkansas’s Deceptive Trade Practices Act in its promotion of Marlboro Light cigarettes. Sweda of the Northeastern Tobacco Project called the decision “a major setback for the industry.” (7) Smokers have filed similar suits in 20 states.

Industry uses diverse strategies to limit liability

While the recent Supreme Court decision slows the preemption bandwagon and may open new opportunities for public health advocates to make their cases in state courts, corporate interests do not depend on a single strategy to achieve their broader goals. In their efforts to shield themselves from liability or more vigorous regulation, corporations have used several different approaches, including legal challenges to state laws that impose stricter controls than the federal government, attempts to transfer court cases from state to federal judges, and blanket federal legislation that bans most liability laws against an entire industry. Two examples of the last approach are the Protection of Lawful Commerce in Arms Act, signed by President Bush in 2005, providing the gun industry with protection from both federal and state civil suits including retroactive dismissal of pending state and federal cases and the so-called Cheeseburger Bill, passed by the US House in 2004 and 2005 but not acted on by the Senate. The Cheeseburger Bill, supported by the Food Products Association, the National Council of Chain Restaurants, the National Restaurant Association and the U.S. Chamber of Commerce would have protected the food industry against obesity-related lawsuits brought by both individual plaintiffs and also federal agencies such as the Federal Trade Commission or the FDA.(8)

Each of these approaches entails some legal and political risks for the industry and as we have seen, industry wins some and loses some of its fights to avoid regulation and preempt state laws. What can public health advocates learn from a review of these experiences and how can those working in tobacco, food, pharmaceuticals and guns learn from each other’ successes and failures?

Lessons for Public Health Advocates

One obvious lesson is that advocates are best served by developing the capacity to contest industry in several different arenas: state and federal courts; local, state and federal legislatures and, of course, in the media. If corporate leaders and their allies know that they can usually win in a specific setting (e.g., the federal courts), they will always seek to engage their opponents on that front and to modify the rules to increase their chances of gaining the home court advantage. Tobacco control groups, the most experienced of the public health advocates seeking to change corporate behavior, have demonstrated their ability to work in multiple settings and liability lawyers engaged in challenging the drug industry are also gaining the experiences and resources needed to win in a variety of legal settings.

A second lesson may be the importance of integrating legal, legislative and electoral strategies. The 2008 election offers public health advocates an opportunity to encourage their constituents to select a Senate, House and President that will be more willing to protect public health and less willing to safeguard corporate interests. That election will also have a major influence on the shape of the federal judiciary in coming decades.

A third lesson is the value of opening new fronts that may increase the pressure for corporations to make healthier decisions. For example, in recent years, foreign governments including Brazil, Nigeria and the European Union have brought legal action in US and foreign courts against US tobacco companies to recover medical costs attributed to their products.(9,10,11) Whether such actions will prevail or lead to change in the global behavior of the tobacco industry remains to be seen However, too often legal or regulatory victories in the United States have led tobacco, drug, food or other companies to increase marketing of unhealthy products in other nations, especially developing nations with weaker public health laws. These practices exacerbate existing global inequalities in health. If corporate leaders know that unhealthy products and practices can be successfully challenged around the world, they may be more willing to adopt international standards that would can their liability and protect their reputations not only in the developed world but globally.



1. Wolfman B. Why preemption proponents are wrong. Trial.2007; 43:3. 
2. National Environmental Trust. California auto standards and state efforts to curb global warming pollution from cars and light trucks. No date. Accessed on July 27, 2007 at 
3. Lynch J. U.S. justices return cigarette suit to state court. Arkansas Democrat-Gazette(Little Rock), June 12, 2007, p.1. 
4. Union of Concerned Scientists. FDA Scientists Pressured to Exclude, Alter Findings; Scientists Fear Retaliation for Voicing Safety Concerns. July 2006. Accessed on July 27, 2007 at
5. Labaton S. “Silent tort reform is overriding states” powers. New York Times, March 10, 2006, p.C5. 
6. Myers, M. Supreme Court Ruling is Victory for Consumers Deceived by Tobacco Company Light Cigarettes. Campaign for Tobacco-Free Kids, June 11, 2007. 
7. Stohr. G. Philip Morris Loses US High Court Case on Suit Site. Bloomberg News, June 11, 2007. Accessed July 27, 2007 at 
8. Burnett D. Fast-Food Lawsuits and the Cheeseburger Bill: Critiquing Congress’s Response to the Obesity Epidemic Virginia Journal of Social Policy and the Law 2007; 14(3): 357-414. 
9. No author. Foreign governments are not entitled to recover tobacco-related medical expenses. Health Law Week, March 23, 2007. 
10. Haruna G. Tobacco control battle shifts to courts. Accra Mail, May 8, 2007. 
11. No author. European Court of Justice rules that decision of EC Commission to file civil actions against US tobacco companies in US federal court did not alter legal rights of companies European Union, 13(1), January 2007.

Mayors Against Illegal Guns Coalition battles the NRA and other Gun Rights Groups Over Gun Control Legislation

On Thursday, June 28, 2007 the Senate Appropriations Committee voted to renew the Tiahrt Amendment, a provision that has been attached to U.S. Departments of Justice spending bills each year since 2003. By taking this action, the Senate rejected the recommendations of public health advocates and Mayors Against Illegal Guns, a new coalition of more than 200 Mayors who seek to reduce gun violence This year, the amendment further restricts law enforcement agencies and the public from gaining access to gun trace data The federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) collects data that tracks the movement of a gun from the time of its first retail sale. Previously available under the Freedom of Information Act, the Tiahrt Amendment, if passed by Congress and signed by the President, would now bar the ATF from providing database information to outside agencies unless prosecutor or law enforcement agency certifies that it will be used solely in conjunction with a specific criminal investigation or prosecution.

By withholding aggregate gun trace information, the proposed amendment would prevent law enforcement agencies and public health officials from wider investigations into the sources of illegal guns. In practice, the amendment would allow local law enforcement agencies to obtain information from the ATF on a specific gun used in a prior crime but not to investigate whether the original source of the guns has also provided other guns used in other crimes. The current version was sponsored by Senator Richard Shelby (R-AL) and is considered more restrictive than the original version originally sponsored by Rep. Todd Tiahrt (R-KA). Shelby’s version stipulates that gun trace data used by a police officer for purposes broader than a specific criminal investigation, such as identifying trafficking patterns, could bring up to five years in prison.

The story of the Tiahrt Amendment illustrates how the gun industry and its supporters use the legislative process to achieve policy objectives that endanger public safety, jeopardize law enforcement, and thwart local efforts to reduce gun violence.

The Amendment has many supporters, including the National Shooting and Sports Foundation (NSSF) – the industry’s trade association – and the National Rifle Association (NRA), which lobbied forcefully in favor of the amendment. According to the Center for Responsive Politics, Representative Tiahrt, who introduced the legislation, has received $68,000 in campaign contributions from advocates of gun rights. In 2006, pro- gun groups contributed $1,054,775 to Congressional campaigns, 87% to Republicans. The sponsor of this year’s Tiahrt amendment, Senator Richard Shelby, had more cash in his Senate campaign treasury at the end of 2006 – almost $12 million – than any other Senator, including presidential candidate Hilary Rodham Clinton of New York. Big business groups were the primary source of contributions.

While the gun industry and its supporters have long opposed public oversight of their retail practices, this year some new groups joined the fight to reduce gun violence by seeking new tools to investigate illegal gun sales. One of the leaders in this effort is the Mayors Against Illegal Guns Coalition, a bipartisan coalition that now includes 225 members from more than 40 states. In April 2006, New York Mayor Michael Bloomberg and Boston Mayor Thomas Menino invited 15 mayors to Bloomberg’s New York estate to discuss gun violence. There, they drafted a statement of principles that has now been signed by all members. The U.S. Conference of Mayors and the National Conference of Black Mayors have also endorsed the principles.

Mayors Against Illegal Guns, as well as the International Association of Chiefs of Police and other law enforcement organizations argue that the Tiahrt Amendment, limits the ability of local police departments to fight crime by tracking down the source of illegal guns in their communities. Mayors Against Illegal Guns waged a media campaign to urge repeal of the amendment. In one television message, Patricia Tucker, the widow of a North Carolina sheriff who was shot in the face by a teenager on probation for an earlier offence, tearfully urged television viewers to “ask Congress to protect police officers, and not criminals”. Her husband’s assailant was found to have bought a shotgun from a dealer who allegedly should have refused the sale.

The NRA targeted members of the coalition, encouraging their members to send letters their local mayor urging reconsideration of membership in the Mayors Against Illegal Guns. The NSSF also sent letters to the Mayors explaining why the organization supported the reauthorization of the Tiahrt Amendment. Under such pressure, mayors from four cities – Anchorage, Alaska, Rio Rancho, New Mexico, Idaho Falls, Iowa and Williamsport, PA – have left the coalition. The NRA has also pressured local television affiliates in several states not to air television ads created by Mayors Against Illegal Guns. The NRA argued that the group distorted facts in their ads and therefore stations had a responsibility to pull them, given licensing agreements which stipulate that television stations are responsible for the truthfulness of the issue advertising they air. While two Kansas affiliates pulled the ads, another station in Youngstown, Ohio kept the ad on the air.

Though mayors around the country have taken heat for their participation in Mayors Against Illegal Guns, Mayor Bloomberg became the poster boy for the NRA’s counter campaign and is often painted as a “vigilante,” and an “elitist.” NRA Executive Director Chris Cox likened Mayor Bloomberg’s gun control work to totalitarianism. In one NRA publication, Bloomberg was labeled a “billionaire, Boston-grown evangelist for the nanny state – beholden to nothing except his own ambitions.” In April, the cover of NRA Magazine, America’s 1st Freedom, depicted Bloomberg as a sinister octopus with the headline “Tentacles!” James Norell, editor of the magazine stated, “Bloomberg’s tentacles reach throughout the country to foist N.Y.C.-style gun control on you, your friends and neighbors.”

Gun supporters have been particularly upset about New York City’s out of state sting operations. In 2006, New York City undercover agents traveled to five states – Georgia, Virginia, Pennsylvania, South Carolina and Ohio – to target 43 gun dealers who were suspected of illegal gun sales. In such operations, investigators attempt to make “straw purchases” in which an individual fills out legal forms and buys a gun for another individual who cannot legally purchase one. Straw purchases are prohibited by federal law and are often used by convicted felons who cannot legally own firearms. Based on these sting operations, New York City brought lawsuits against 27 gun dealers. To date, 12 have settled and, agreed to monitoring of their sales by a court-appointed master.

In justifying these tactics, Mayor Bloomberg has noted that out of state guns also account for 60% of New York City homicides. Bloomberg and San Francisco Mayor Gavin Newsom make the case that current federal laws that prohibit illegal guns sales don’t go far enough since they don’t allow law enforcement agencies to determine who is selling the illegal guns to begin with. After attending the funerals of eight New York City police officers killed with illegal firearms in June alone, Mayor Bloomberg argued that repealing the Tiahrt Amendment is a step in that direction. Speaking at the organization’s National Summit in Washington, DC in January, Bloomberg declared, “Mayors are the ones who see first hand the death and devastation caused by illegal guns in the hands of criminals. This is not a question of ideologies of a referendum on the Second Amendment; it’s about saving lives.” After the Senate’s 19-10 decision in late June, Bloomberg stated that the vote “showed Congress at its most craven, buckling to pressure from the gun lobby to protect those who traffic in illegal guns.”

At both the national and state levels, Mayors Menino and Bloomberg are leading the way for stronger gun control measures. Menino created the Strategic Crime Council, a broad-based approach to approaching gun violence, lead the passage of the Gang Bill and Witness Protection Bill, and filed state legislation to require that all guns sold in Massachusetts use micro-stamping technology which links shell casings to the guns which fire them.

Members of the House Appropriations Council will vote on a version of the Tiahrt Amendment in mid July. NSSF Senior Vice President and General Counsel Lawrence G. Keane stated, “As the Shelby amendment works its way through the legislative process, NSSF will look forward to educating lawmakers in the Senate and House of Representatives on the importance of putting public safety and the lives of law enforcement ahead of gun control politics.” National Rifle Association spokesman Andrew Arulanandam believes that efforts to defeat the amendment are have little hope and argues that gun control has waning support in Washington. Kristen Rand, legislative director for the Violence Policy Center (VPC) in Washington urged citizens who wanted to reduce gun violence to support Mayors Against Illegal Guns. “Keeping gun trace data secret,” she said, “puts the whims of the gun industry ahead of the needs of local officials and law enforcement who are desperate for information that will help them fight illegal gun trafficking.”

While Mayors Against Illegal Guns may not succeed in blocking the Tiahrt Amendment this year, they have mobilized public support and media attention and demonstrated the power of local governments to confront an industry and its supporters who have consistently opposed efforts to reduce America’s burden of gun deaths.

Photo Credit:

All photos: Mayors Against Illegal Guns Coalition

Public Health Advocacy on Tobacco and Guns Down Under and Beyond – An Interview with Simon Chapman

Simon Chapman is Professor of Public Health at the University of Sydney in Australia. He has studied and participated in public health advocacy on tobacco, guns, and other issues. He is a sociologist who wrote his PhD dissertation on the semiotics of cigarette advertising, and has written 10 books and major government reports and published more than 160 papers in peer- reviewed journals. His main research interests are in tobacco control, media discourses on health and illness, and risk communication. He teaches courses in Public Health Advocacy and Tobacco Control in the University of Sydney’s MPH program. He also serves as editor of Tobacco Control and was a key member of the Coalition for Gun Control that won the 1996 Australian Human Rights and Equal Opportunity Commission’s community Human Rights award. His new book, Public Health Advocacy and Tobacco: Making Smoking History will be released this September by Blackwell Press. A few months ago, Corporations and Health Watch founder Nicholas Freudenberg interviewed Chapman in his Sydney office. We publish here excerpts of that interview.

CHW: Can you tell me your perspective on the similarities and differences in the tobacco control effort in Australia and the United States, and what’s special about how these conflicts have played out here in Australia?

Chapman: What is similar is that both Australia and the United States are very robust democracies where freedom of expression, criticism of the government, criticism of the corporate sector … all of those issues are not problematic. Whereas in places like China or Vietnam, talking about advocacy is like talking Esperanto because the notion that you could ever make an argument against government or even against corporations is pretty much unheard of. So that is the major similarity.

In Australia, in tobacco control, we have not had the problem that you’ve got in the States with the First Amendment and the issue of free speech being taken to include commercial free speech. Very early on in Australia, arguments were put forward about banning tobacco advertising and promotion, and there was never any serious impediment to that which was constitutionally based or, indeed, based in values that would suggest that corporations could somehow not be silenced in their exercise of free speech. The tobacco industry, of course, fought very hard against any restrictions, along the lines of trying to play games about getting us to reach an impossible level of evidence about cause and effect of advertising and smoking. But those arguments petered out and in the early 1990s we got rid of all tobacco advertisements in Australia. Today you can’t see any advertising anywhere except for very limited point of sale promotion inside tobacconists.

CHW: Are there other cultural or political differences that influence attitudes towards tobacco?

Chapman: Another difference between the States and Australia in terms of tobacco control is concern about what I would characterize as very trivial erosions of personal freedom like having to wear seat belts or a motorcycle crash helmet. Here in Australia, there has not been any significant civil libertarian resistance, whereas I’m very aware that in those two areas there has been conflict in the States. But we haven’t had anything like that, so arguments in Australia about, for example, rules about designating places where we couldn’t smoke were pretty well accepted by the population. The idea that it was fair and just that the government should intervene with laws when somebody was harming your health through second hand smoke was reasonable. So the problem always became the vested interest groups, mainly the tobacco industry, but more importantly, third parties acting on their behalf. This included principally the hospitality industry and the hotel industry, and what we call “clubs”, places where members can gamble, smoke and drink. Australia has successfully imposed restrictions on smoking in these places.

CHW: I know you have also worked on the issue of reducing gun violence in Australia. How does your experience here compare to the US?

Chapman: Well, again, we have nothing like the Second Amendment, or a right to bear arms. In 1996, we had a horrendous civilian massacre in Port Arthur, a historic tourist site in Tasmania, where a man ran amok with military style semi-automatic weapons and killed 35 people.

That was a tipping point for a lot of gun control advocacy that erupted in the decade leading up to that. I describe these experiences in my 1998 book Over our dead bodies: Port Arthur and Australia’s fight for gun control. ((Read the British Medical Journal review) In that book, I make the case that in health care we have disaster plans where every working hospital is prepared for a major industrial explosion or an aircraft crash or something like that. In public health we also ought to have disaster plans because sometimes big public health incidents, like a gun massacre, can trigger (sorry about the bad pun) major reconsiderations in public health law, and that was certainly what happened after Port Arthur.

CHW: By disaster plans, you mean a plan to move advocacy forward if there’s a window for policy change?

Chapman: That’s right. It opens a window of opportunity where a major disaster can suddenly concentrate decades of advocacy. All of a sudden, communities start using the arguments that you’ve been seeding for years and years, leading to a huge avalanche of public outrage that something should be done now. After the Port Arthur massacre, we found terms and phrases that we’d been using for years suddenly being repeated by politicians, police officers, and citizens in ways that showed the groundwork for advocacy comes home to roost when public concern is fired up by these incidents.

CHW: Have these same dynamics played out in tobacco control?

Chapman: With tobacco, the major challenge is that if you don’t do something about control today and you postpone it for weeks, months, or even years, there is not the obvious temporal association between something not having been done and the disease incidence down the road. It’s the old difference between statistical victims and what’s been referred to as the rule of rescue, where you’ve got identifiable, named individuals with acute health problems, saying the government should be providing this new cancer drug for me or reducing waiting lists in public hospitals. Whereas, with chronic disease, of which tobacco control is a great example, you can run the same arguments about harm reduction or controlling the tobacco industry for years and years. It’s really only when windows of opportunity open – and they include things like political charismatic leadership coming along where you start getting the substantive kind of gains. I’ve never seen really tobacco control events without a strong political advocate who comes along and decides to do something about it.

CHW: That’s an interesting observation. So you’re suggesting acute crises like gun massacres or a toxic release open their own windows of opportunity for policy change whereas chronic health problems related to tobacco, alcohol or food may depend more on charismatic leadership. Can we return for a moment to gun control? In the United States, as you know, one of the key obstacles to reducing gun violence is the National Rifle Association. Its well-funded and skilled lobbying operation has been remarkably successful in blocking public health measures, even when public support for such measures is strong. What’s the situation here in Australia?

Chapman: Well, gun ownership is pretty widespread in Australia but it’s not as common as in the U.S. Here, however, the organized gun lobby is fairly small. Since the Port Arthur massacre, people who want to have a gun are obliged to be a member of a sporting shooting club or show a history of hunting. The equivalent of the NRA in Australia is called the SSAA, Sporting Shooters Association of Australia. SSAA has become very well off because all shooters now have to undertake an approved safety instruction course, as if safety was the issue. Safety is really a trivial component of gun injuries and deaths. To own a gun here, individuals have to register their attendance at a shooting range a minimum of four times a year. And the criterion of ownership of a gun for self- defense was explicitly removed. You can’t just say, “I want a gun for self defense.” The only reasons you can have a gun are if you are a member of a sporting shooting club or you are a bona fide gun collector, and then you’ve got to show evidence you’ve been collecting for a long time. It’s very difficult to become a new collector. The third reason to have a gun is that you have explicit permission from a rural property owner to go on their property and shoot kangaroos and feral pigs, or whatever. But just the idea that you can have a gun if you want to is not allowed.

CHW: So the SSAA has developed a close interdependent relationship with the government?

Chapman: Yes, they get training course fees and club registration fees and so they become quite powerful. For example, we had a state election last week and I discovered that the SSAA had given $350,000 to a political party called the Shooters Party to try and get them elected. In Australia, that is a big political donation. So the question is where did they get the money? They get it from shooter’s licenses so the irony is that the government will be opposed by a funding stream its own laws created.

CHW: How did you become involved in public health advocacy? Do you think there’s a potential for bringing health advocates together across issues like tobacco, guns, alcohol and so on?

Chapman: I got into advocacy because I had a typical community health education job when I was a younger guy, and a few like-minded colleagues and I became frustrated with being obliged to work in downstream problem solution, educating school teachers, that sort of thing. We could see all of this corporate malfeasance and industry promotion of unhealthy behavior all around us. I was working in the drug and alcohol areas, so I thought, if we’re going to be serious about reducing drug and alcohol problems, we need to address the upstream stuff. So I got involved in forming a public interest group that was a typical, totally unfunded, flying by the seat-of-the-pants opportunistic pebble in the shoe of the tobacco companies. In the early 1980s, we had a major victory when we were able to engineer an end to the involvement in a leading cigarette advertising campaign of Paul Hogan, the actor, who was Crocodile Dundee. Hogan was on every advertisement for this particular brand, and he had major appeal to children. The tobacco industry had a self- regulatory rule that just didn’t work so we challenged that process and won. All of a sudden with no resources we made a difference by strategically using the media and creative research strategies. So I started getting interested in advocacy principally in tobacco control. Then in the early 1990s, I got involved in gun control.

CHW: So you have had a lot of experience on several different campaigns. As someone who is interested in the advocacy process, how do you decide which issues to work on, which to study?

Chapman: Well, you can’t do everything in advocacy, so I do the things I am interested in and feel are important and I try to do things that when windows of opportunity open I can jump in and do something. Being opportunistic is so vital for effective advocacy and if you can’t make room for those opportunities when they open you’re not going to be very effective.

CHW: Are you talking mainly about media advocacy here?

Chapman: Media advocacy is, of course, only one component of the overall public health advocacy enterprise, but to me it’s rare for an advocacy campaign to succeed if there is no media advocacy component. It’s usually the elephant in the living room that runs it.

CHW: You’ve written about the public discussion of tobacco. How do you think media advocacy has affected that dialogue?

Chapman: The tobacco industry in Australia has largely vanished from public discourse. In fact, I’ve got a graduate student of mine working on going back and looking when it was that the tobacco industry started disappearing from the press. It’s around about the late l990s when all those documents came out because, of course, it was then so easy just to contradict everything they said by showing them their own words. But they now operate almost entirely through elite-to-elite communication channels, you know through funding of political parties, through funding of free enterprise foundations, that sort of thing.

CHW: So in effect, you’re arguing that successful media advocacy by tobacco control activists re-framed the media discussion and drove the industry to find new channels of communication. How do you think this lesson applies to other industries, say alcohol or food?

Chapman: The alcohol industry is the one where I get the most requests from people who say, “Can you do for alcohol what you helped do for tobacco?” To me, there are enormous fundamental differences between the two. The main one is that there is no safe level of tobacco use, whereas there is a lot of very respectable epidemiology that suggests that low to moderate alcohol use is actually beneficial. So in alcohol there are not too many points of comparison with the core messages of tobacco control which are: “Get rid of all advertising and promotion”, “Put the price of tobacco products up significantly”, “Reduce opportunities to get hold of tobacco”, and “Limit sales outlets”. I haven’t heard a really compelling call for banning all alcohol advertising.

On the other hand, my alcohol advocacy colleagues tell me about issues that do call for advocacy. For example, you can buy bulk wine in Australia in these boxes with taps on the bottom. You can get four liters of this wine for under ten bucks, and it’s the favored drink of indigenous people who have extraordinary health problems from alcohol. It’s taxed at a much lower rate than table wine, quality wine. But there’s no rationale for different levels of taxes. There ought to be a standard way of taxing all beverages by alcohol content.

CHW: I’d like to switch gears here and talk about teaching about the impact of corporate practices on health and the role of public health advocacy. How do you approach this subject in your public health curriculum?

Chapman: The very first lecture I give in my Public Health Advocacy course is a description of the traditional host, environment, agent and vector model from infectious disease epidemiology. And I say, let’s apply this to chronic disease epidemiology and to the tobacco industry, tobacco control. What is the vector? The vector is the tobacco industry. I tell my students that any comprehensive approach to chronic disease control, injury prevention, whatever, if you don’t address the vectors who are profiting from the proliferation of abusive behaviors, or dangerous products, then you’re going to miss the boat. So vector control in chronic disease invariably takes you into consideration of industry groups who are out to profit.

CHW: And do you see this as a model for public health folks or do you think it has a potential for mobilizing more popular political support?

Chapman: I see it as both. When politicians favor downstream solutions, more education, more information, rather than upstream solutions, that’s because the comprehensive control model that they’re using does not embrace vector control, control of industry. At the same time, I also think that sometimes industry can be very much a part of the solution.

The food industry is a particularly complex area for public health advocacy. If I ask nutritionists and dieticians, “Exactly what is it that you want people to put in their mouths?” they give me laundry lists of a good diet. And if I ask, “And where do you get hold of that diet?” they say, “Oh, you can buy it at shops.” And I say, “Well, who puts it in shops?” The food industry puts it in shops.

Any view of the future of nutritional change which sees the food industry as being only part of the problem, rather than part of the solution, is myopic. They are certainly part of the problem, but I think that public health advocates also need to understand how coalitions and relationships and networks can be formed with the food industry to push it in the right direction.

Too often the public sector and the NGO sector people concerned about obesity just talk to each other. But where does the average person get nutrition information? They get it from food labeling and from advertising. They may get a bit from public sector, but the total budget of the average bread company is bigger than the government’s entire nutrition campaign budget. So sometimes the role of government can be to stimulate the market to do something differently. With the tobacco industry, people say it’s so easy, so black and white.

CHW: What do you see as the global dimensions of health advocacy to change corporate practices?

Chapman: Well, in tobacco, there has been an immense amount of global networking and information and strategy exchange going on. For example, 190 NGOs have been very instrumental in making sure that the Framework Convention of Tobacco Control just passed in 2003 is fully implemented.

And the Internet has absolutely revolutionized advocacy practice. Not a day goes by where somebody isn’t saying, “Do you know this organization?” “Do you know that individual?” “This has happened. What would you do?” “Is this guy an industry stooge?” So that has been immensely important. I’m not as well connected with gun control any longer, but a colleague of mine runs the major website for the world, , which reports on breaking news about guns and gun control from around the world.

CHW: So if I can come back to ask your opinion on the underlying question. What do you see as the potential for campaigns, advocacy networks or actual social movements that would bring greater attention and action on some of these issues, particularly in Australia?

Chapman: I think there’s a lot of potential. Public health has got many specializations within it. You walk around the corridors of this building, the public health building at the University of Sydney, there are statisticians, behavioral scientists, epidemiologists, and anthropologists, and you walk into major NGOs and there is a Director of Marketing, of Community Development, of Campaigns, but there is seldom an Advocacy Director. Advocacy is unfortunately something that people seem to do in their spare time almost. In University settings, there are not a lot of people around the world who are teaching courses on Public Health Advocacy in Masters of Public Health degree programs.

Now in the States I know you’ve got that Hatch Law that prevents government workers from engaging in certain kinds of political activities. . There’s not the problem with that here. Here in Australia, advocacy isn’t a dirty word nearly as much as it is in the States. Government officials, of course, can’t advocate but NGOs are expected to do that. Academic research in the advocacy process is an emerging specialization within public health. The course I teach here is problem based. I give students realistic scenarios and I say let’s analyze what’s going on here, and I ask a series of structured questions. What is the public health problem arising from this scenario? What are our public health objectives? What are our media advocacy objectives that would suit our public health objectives?

Is there opportunity that would short circuit the need for advocacy? How are our position and our opponent’s position being framed in public discourse? How is the debate running in the media? Is it about unnecessary debt or is it about commercial freedom? Then drilling down even further, say a reporter phones, you’ve got a chance to say something that’s going to heard by 20 million people, and you’ve got seven seconds to say it. What are you going to say? So actually bringing that analytical process to considering what your intervention is going to be in that seven seconds. And then, are there other strategies in which you would engage beyond the media advocacy? Are there influential people you can see? Can you discredit your opponents?

CHW: Tell me about your new book, Public Health Advocacy and Tobacco: Making Smoking History. Ken Warner, the Dean of the University of Michigan School of Public Health and a long-time tobacco researcher wrote about your book, “ I was fascinated, educated, and occasionally entertained by this broad and deep “manual” of how to do tobacco control in the 21st century.” What’s the aim of your book?

Chapman: Well, I think the goal of tobacco control is to make smoking history. In the book, I describe effective and ineffective approaches, condemn overly enthusiastic policies that ignore important ethical principles, and offer readers a cookbook of strategies and tactics for denormalising smoking and the industry that promotes it. I hope readers will find it useful.

CHW: Thanks very much.

Free trade, the food industry and obesity: How changes in US – Mexico food trade contributed to an epidemic

Like other countries, Mexico has seen a dramatic increase in obesity and diabetes in the last decade. While obesity has many causes that operate at multiple levels, this report examines how new trade agreements can lead to changes in the practices of multinational companies that can then contribute to health problems. It also illustrates how these global changes interact with national and local trends to influence health.

At the global level, the food market integration between Mexico and the United States that began in the 1980s accelerated after the two countries signed the North American Free Trade Agreement (NAFTA) in 1994 (1). NAFTA removed trade barriers between the US, Canada and Mexico, making it easier for Mexico to export flowers and tropical fruits, for example, and for US companies to sell Mexicans low-cost corn, processed food and other goods and to invest US dollars in the Mexican food industry. Between 1988 and 1997, U.S. foreign direct investment in the Mexican food processing industry increased from US $ 210 million to US $ 5.3 billion, a 25-fold increase (1). This increase had a major impact on the types of food available in Mexico.

Most NAFTA-inspired US foreign direct investment in the Mexican food industry supported production of processed food. Between 1995 and 2003, sales of processed food increased by 5 to 10% annually (1). In the same period, the Mexican diet changed considerably. Between 1992 and 2000, for example, calories from carbonated soft drinks increased by almost 40%, from 44 to 61 Kcal per capita per day. By 2002, the average Mexican was drinking more Coca Cola servings per year, 487, than US residents, who drank 436 8- ounce serving (1).

Increased globalization and consolidation of the Mexican retail food sector and the growing consolidation of supermarkets affected others sectors of society, including agriculture, where small farmers had trouble selling to large supermarkets (2). As a result, many left their farms and moved to the city, leading to more urbanization, decreased access to fresh foods and loss in family and community food self-sufficiency.

How did these changes influence food intake? Between 1988 and 1999, the total energy intake from fat in Mexico increased from 23.5% to 30.3 % (1,3). The increase in urban Mexico City was 32%, compared to the poorer more rural South, where it was only 22 % (3). In this same period, the national prevalence of overweight/obesity increased from 33% to 59%, a 78% increase (4). The overall prevalence of diabetes in Mexico increased from 8.8% in 1993 to 11.4% in 1999, a 30% increase.

In Mexico and other developing nations, urbanization can contribute to higher prevalence of obesity by increasing access to energy-dense fatty foods, especially for low socioeconomic populations groups moving from rural areas (5). Between 1970 and 2000, the proportion of the Mexican population living in urban areas increased from 58% to 75%, the highest rate in Central America. By 2000, Mexico City, the capital, was the second largest city in the world. Furthermore, longitudinal studies suggest that the rapid transition from rural to urban and from high rates of early malnutrition to later childhood overnutrition serve as independent risk factors for obesity, diabetes and cardiovascular disease in adulthood (6). Thus, the particular pattern of economic development that Mexico pursued facilitated gains in weight, especially in the growing urban low income population. When food markets then made high calorie low nutrient foods readily available to newly urbanized, mostly sedentary people, the stage was set for rapid weight gain.

Impact on Health

Growing rates of diabetes, fueled by the epidemic of obesity, consumed larger portions of the nation’s health care budget, depriving resources from other health problems. In 2000, the annual cost of diabetes care per person per year in Mexico was US $607 and one study estimated that total diabetes costs in Mexico in 2000 were US $15.1 billion (7).

At the municipal level, changes in the economy and food availability led to price increases. Between 1992 and 2000, in part as a result of economic changes precipitated by NAFTA, the cost in pesos per megacalorie of food tripled in both urban and rural areas but remained twice as high in urban than rural areas – making low-cost low-nutrient foods more attractive (8). Aggressive marketing of soft drinks and other high calorie, low nutrient snack foods by global and national beverage makers, especially to urban children and young adults, the fastest growing segment of the population and industry’s best hope for increased market share, further encouraged consumption (1). Cities, with dense populations, established media markets and numerous retail outlets, made particularly suitable venues for advertising. Often ad campaigns were planned by increasingly globalized advertising companies (1). In Mexico City, the first McDonald’s restaurant opened in the early 1980s; twenty years later there were 200 Golden Arches in the city (9).

At the neighborhood level, rapid urbanization, loss of green space, the decline in physical labor and high crime rates combined to discourage physical activity, further contributing to obesity. This social environment where diets included more high calorie low nutrient foods and less fresh produce as well as reduced opportunities for physical activity led to weight gain.

Genetic characteristics of the Mexican population also contributed to rates of obesity but it was environmental exposure to a rapidly escalating obesogenic environment that precipitated the phenotypic expression of genotypic vulnerability (10). Moreover, those with Indian ancestry, at higher risk of a genetic predisposition to diabetes, were often concentrated in the low-income urban and rural areas as a result of socioeconomic and ethnic segregation, precisely those areas where food availability was changing most rapidly. For example, a study of diabetes prevalence in a low-income barrio in Mexico City found that 59% of the population had some Native American ancestry (9). Thus, global, national and municipal factors intersected to create a new environment for a specific population with a higher genetic risk for obesity and diabetes.

This case also shows how changes in the practices of global food companies – e.g., increased exports to developing nations; aggressive marketing of high calorie, low nutrient foods and beverages; and expansion of retail outlets to reach diverse sectors of the population– created an obesogenic environment that contributed to the explosive growth of the epidemics of obesity and diabetes in a genetically vulnerable population. Rising rates of obesity and diabetes affected both urban and rural Mexico, but as a result of dense urban markets that facilitated aggressive food advertising, a growing urban middle class that could afford more processed food and a working class population whose food choices became more constrained and less healthy and the declines in physical activity, these epidemics left a distinct footprint in Mexico’s cities. Reversing these trends will require intervention at the multiple levels that have triggered the changes.

Popular mobilization is one potential source of change. In Mexico last year, corn tortillas, a crucial source of calories for 50 million poor people, doubled in price, precipitating protests, demonstrations and eventually government price controls. Whether similar global food changes will lead to a Mexican food justice movement that takes on hunger, obesity and the growing corporate control of food remains to be seen.

By Nicholas Freudenberg, Hunter College, City University of New York.


1. Hawkes C. Uneven dietary development: linking the policies and processes of globalization with the nutrition transition, obesity and diet-related chronic diseases. Global Health. 2006; 28;2:4. 
2. Schwentesius R, Angel Gomez M: Supermarkets in Mexico: impacts on horticulture systems. Development Policy Review 2002, 20:487-502.
3. Rivera JA, Barquera S, Gonzalez-Cossyo T, Olaiz G, Sepulveda J: Nutrition Transition in Mexico and in Other Latin American Countries. Nutrition Reviews 2004, 62:S149-S157.
4. Rivera JA, Barquera S, Campirano F, Campos I, Safdie M, Tovar V: Epidemiologial and nutritional transition in Mexico: rapid increase of non-communicable chronic diseases and obesity. Public Health Nutrition 2002, 5:113-122.
5. Jimenez-Cruz A, Bacardi Gascon M, Jones E: Fruit, vegetable, soft drink, and high-fat containing snack consumption among Mexican children. Arch Med Res 2002, 33:74-80.
6. Jimenez-Cruz A, Bacardi Gascon M,: The Fattening Burden of Type 2 Diabetes on Mexicans.Diabetes Care 2004, 27:1213-1215. 
7. Barcelo A, Aedo C, Rajpathak S, Robles S: The cost of diabetes in Latin America and the Caribbean. Bulletin of the WHO 2003, 81:27. 8. Arroyo P, Loria A, Mendez O: Changes in the household calorie supply during the 1994 economic crisis in Mexico and its implications for the obesity epidemic. Nutrition Reviews 2004, 62:S163-S168.
9. Williams K, Stern MP, Gonzalez-Villalpando C. Secular trends in obesity in Mexico City and in San Antonio.Nutr Rev. 2004;62(7 Pt 2):S158-62.
10. Gonzalez-Villalpando C, Stern MP,Gonzalez ME, Rivera MD, Simon J,Andrade IS, Haffner SM. The Mexico City Diabetes Study: a population-based approach study of genetic and environmental interactions in the pathogenesis of obesity and diabetes. Nutr Rev 1999;5:S72 – S77 


Spotlight on the Food Industry: Coke, PepsiCo, and McDonald’s Pledge Healthier Ads for Kids; Critics question impact

In April 2007, 15 food companies, including McDonald’s, Coca-Cola, and PepsiCo, announced that beginning in 2008, they will devote at least half of their ads directed to children under 12 toward promoting “healthy dietary choices” and/or physical activity. Does this new pledge represent a change in direction or is it simply an effort to avoid stronger public oversight?

At least some companies worry about the growing public focus on obesity. In a recent talk at the Venice Festival of Media, Coca-Cola Company Chief Creative Officer, Esther Lee admitted, “Our achilles heel is the discussion about obesity. It’s gone from a small, manageable U.S. issue to a huge global issue. It dilutes our marketing and works against it. It’s a huge, huge issue.”

A recent study of television advertising for children conducted by the Kaiser Family Foundation found that for children under the age of eight , only one ad out of 26 promotes fitness or a healthy diet and for children 8 to 12, it’s even worse, one ad out of 48. Furthermore, the food and beverage ads directed towards children overwhelmingly promote high fat and sugary snacks or fast food. The study looked at 8,854 commercials aimed at children, none of which promoted fruits or vegetables.

Do these ads affect eating behavior? A recent study at the University of Liverpool found that children who had been exposed to food advertisements on television were more likely to overeat than children who had not been so exposed. In the study, 59 nine to eleven year old children of varying weights were exposed to 10 food or 10 toy ads. The children were then allowed to eat a range of snacks at will – from fruit to potato chips and candy. Results showed that total calorie intake was significantly higher after the children were exposed to the food ads. Children of normal weight increased consumption by 84 percent, overweight children by 101 percent, and obese children by 134 percent even though the foods that the children were allowed to eat were not the ones that were advertised.

According to Dr. Jason Halford, Director of the University of Liverpool’s Kissileff Human Ingestive Behavior Laboratory and an investigator in this study, “That’s important because what we’re showing goes beyond branding effects. Advertisers have always argued that food ads do nothing but get kids to change from one brand to another for the same thing – the same argument tobacco companies used. This study shows that that’s completely incorrect. It doesn’t matter if the ad is for a specific product. It produces consumption. Kids consume after they see them.”

These studies suggest that to reduce over consumption and obesity, children may need to see fewer ads, not different ones. According to Marion Nestle, Professor at the Department of Nutrition and Food Studies at New York University, the main nutrition message Americans need to hear is “Eat less” yet the food industry consistently encourages Americans to eat more, the necessary message for healthy profits if not healthy children.

Several recent and current government investigations have scrutinized food advertising to children. For example, this summer, the Federal Trade Commission will be issuing compulsory requests for information from 44 food, beverage, and quick-service restaurant chains. The FTC is especially interested in marketing practices of in-store promotions, events, packaging, internet marketing and product placement in video games, movies, and TV programs. According to the Institute of Medicine, annual sales of food and beverages to American children was more that $27 billion in 2002. Some researchers have calculated that children are exposed to 27 food ads a day and that most promote foods high in fat, sugar, and calories. As a result, children begin to make their first request for a product by two years of age, and 75 percent of those requests are for sugary cereals.

School foods have also become a new battleground. In an effort to lower the rates of childhood obesity, in April, the Institute of Medicine (IOM) recommended strict standards to cut calories, fat, and sugar in all snacks and beverages sold in school vending machines, at fundraisers, and as a la carte items in school cafeterias. In school systems around the country, parents, teachers and food activists are struggling to clear schools of unhealthy food.

Many food industry executives resent government involvement and dread the close attention. One executive told Advertising Age, “It’s clearly a witch hunt.” He said if anyone is to be picked as the scapegoat it’s likely to be the fast food outlets that buy as much media for the 6-to-11-year-old set as other marketers spend on their entire annual budget.

The April announcement is in part a response to this growing government attention. Food industry leaders hope that their voluntary measures will stave off further oversight. Yet, research evidence suggests that voluntary guidelines developed by industry often fail to achieve their objectives. Recently two nutritionists reviewed changes in portion sizes of sodas, hamburgers and French fries at McDonald’s, Burger King and Wendy’s and found few changes despite pledges by these companies to improve their offerings. The authors concluded that “voluntary efforts by fast-food companies to reduce portion sizes are unlikely to be effective, and that policy approaches are needed to reduce energy intake from fast food.”1

Historically the food and beverage industry have shown their capacity to respond quickly to public concerns about health. In 1991 the industry was called to introduce 5,000 new reduced fat food products by the year 2000 to support the Healthy People 2000 initiative – a goal they met by 1995. Yet as these new products came on the shelf, obesity rates continued to grow.

The Coca-Cola Company has been particularly adept in responding to new market forces. The Company’s global beverage portfolio now includes 400 brands that include soft drinks, diet soft drinks, juices, juice drinks, sports beverages, waters, teas, coffees, milk-based drinks and fortified beverages. However, no advertiser has yet promoted reduced consumption of such beverages or encouraged use of tap water, two messages that nutritionists support.

In fact, soft drink companies have been especially eager to promote physical activity, another avenue to weight reduction, rather than reduced consumption. For example, in its Get Active/Stay Active program, Pepsi Cola encourages young people to engage in sports and other physical activities while it still signs pouring rights contracts that require high schools to serve only Pepsi. The effort to divert blame for obesity to physical inactivity is reminiscent of the tobacco industry’s attempt to point the finger at air pollution as the main cause of lung cancer. Both air pollution and physical inactivity warrant attention but the self-serving goal of the focus makes the message suspect.

Some countries have chosen alternatives to voluntary guidelines. In November 2006, the British food regulator agency banned advertising of high fat, salt and sugar foods in television programs made for children or of particular appeal to children under age 16. In announcing the new regulations, outgoing Prime Minister Tony Blair said, “Particularly where children are concerned, I have come to the conclusion we need to be tougher, more active in setting standards and enforcing them.” The British regulatory agency also decided to prohibit the use of licensed characters, celebrities, promotional offers and health claims in food advertising to children. Whether the United States is ready for such a step could make an important issue for the 2008 election.


1 Young LR, Nestle M. Portion sizes and obesity: responses of fast-food companies. J Public Health Policy. 2007;28(2):238-48.

Towards a Global Tobacco Control Agenda: The WHO’s Framework Convention for Tobacco Control

Each month Corporations and Health Watch examines global perspectives on corporations and health. We post coverage of campaigns to change corporate practices in other developed and developing countries; present news and analysis on new global trade and other agreements among corporations and their supporters and among international alliances of advocacy groups working to modify health-damaging practices. We invite readers to send us suggestions for campaigns, reports and issues to analyze for our Global Perspectives section. Send suggestions to us.

On May 31, 2007 tobacco control advocates and activists around the world recognized World No Tobacco Day. Through their actions, they drew attention to the fact that globally, tobacco products claim nearly 5 million lives per year and secondhand smoke has been proven to cause death and disease, and they challenged Big Tobacco’s continuing attempts to weaken national and international tobacco control measures.

Tobacco control is a global issue for several reasons. First, as Western nations implement stricter laws curbing secondhand smoke and tobacco industry practices, Big Tobacco increasingly looks to the global south – where there are often weaker tobacco control laws in place – to market its products. Second, in an era of globalized media, Big Tobacco’s marketing efforts reach beyond their country of origin and influence individuals, particularly youth, worldwide. Third, if current trends continue, by 2030 tobacco products will cause more than 10 million deaths per year with 70% of such deaths taking place in the global south. Thus, controlling tobacco has the potential to improve population health around the world. Finally, smuggling of tobacco products is an international issue and this practice is often coordinated by the tobacco industry itself.

As part of a global effort to fight Big Tobacco, 168 countries have signed the Framework Convention for Tobacco Control (FCTC) created by the World Health Organization. Of these, 147 have become Parties – members of the regulating body of the FCTC. More than 250 organizations from 90 countries have also joined the Framework Convention Alliance for Tobacco Control – an international group created to support the FCTC.

The FCTC is considered the world’s first public health treaty. The treaty is designed to address the growing crisis of tobacco-related death and disease and to reduce the health, social, environmental and economic impact of tobacco and secondhand smoke. It was adopted unanimously by the World Health Assembly (the governing body of the World Health Organization) in May 2003. In November 2004, Peru became the 40th country to ratify the treaty, thus meeting the minimum number of ratifications needed to enter the FCTC into force, an event that took place in February 2005. The FCTC is legally binding for those countries that ratify it. However, it is up to national governments to implement the agreement.

The main provisions of the FCTC require signatories to: 1) Ban the use of misleading tobacco advertising; 2) Enact and enforce comprehensive bans on tobacco marketing and sponsorship within five years of ratifying the treaty; 3) Increase tobacco taxes; 4) Require health warnings on tobacco packaging that cover a minimum of 30% of the display area but ideally cover 50% and 5) Implement comprehensive measures to protect citizens from the health hazards of secondhand smoke.

The FCTC also promotes research and the sharing of such research internationally, encourages legal action against the tobacco industry, suggests signatories support cessation services, and requires action against tobacco smuggling and for regulation and labeling of all ingredients in tobacco products. Countries that sign and ratify the FCTC are encouraged to look to these provisions as minimum measures and are encouraged to take a stronger stand against the tobacco industry practices that harm health.

The United States has been an international leader in tobacco control, particularly since the 1998 1998 Master Settlement Agreement, the provisions of which helped reduced already declining smoking rates in the United States. However, the Bush Administration has not been supportive of the FCTC. For more than a year the U.S. refused to sign the treaty and attempted to undermine it. In particular, the Bush Administration fought the provision which mandated a comprehensive ban on tobacco advertising, sponsorship and promotion, claiming that this would be unconstitutional in the United States as corporations are granted First Amendment rights to freedom of speech, which protects their right to advertise. The Bush Administration continued to fight this provision even when language was proposed that would have called for a ban of advertising “within constitutional limits.” The U.S. also fought the funding provisions within the treaty. Finally, in May 2004 the United States signed the FCTC but as of yet it has neither been ratified by Congress nor have its legislative mandates been passed . “Unfortunately,” Kathryn Mulvey of the advocacy group Infact told The Washington Post, “our government has a history of signing treaties, leveraging its power to weaken the treaties, and then never ratifying them. This is a stunning PR maneuver. We are not holding our breath for the U.S. to ratify the treaty.”

By July 2006, 131 countries representing more than 75% of the world’s population had ratified the FCTC. Thus, as other countries sign, ratify and implements its mandates, the United States is falling behind.

From June 30 to July 6, 2007, the Framework Convention for Tobacco Control’s “Conference of the Parties”, a group of countries that lead the effort to monitor implementation, will meet in Bangkok, Thailand. Their agenda is to develop guidelines to:

  • provide protection from exposure to tobacco smoke in indoor workplaces, public transport, indoor public places and, as appropriate, other public places.
  • eliminate of illicit trade in tobacco products.
  • move towards a comprehensive ban on tobacco advertising, promotion and sponsorship, covering both its within-country and cross-border elements.
  • establish standards for packaging and labeling of tobacco products.

The Framework Convention and its nongovernmental partners have the potential to match the global tobacco industry in advancing an international agenda on tobacco, an agenda that protects rather than harms health. Whether the decisions made in Bangkok can realize this potential remains to be seen.

Campaign Profile: Licensed to Kill

Last month youth activists from around the world working with Essential Action’s Global Partnerships for Tobacco Control held a rally in front of the Altria/Philip Morris’ New York City headquarters one day after the company’s 2007 shareholder meeting. The youth staged an action Altria and handing out information to passersby. While youth activists have been taking on Big Tobacco internationally for some time, what made this action particularly interesting was that the activists were joined by rival tobacco company Licensed to Kill (LTK). At the rally, LTK representatives attempted to deliver the “Profiting off of Poison Award–Golden Coffin Award 2007″ to Altria representatives who declined to receive it.

Lest you think that tobacco industry representatives have finally come clean about the fact that their product, when used as directed, causes cancer, emphysema, heart disease and death, it is important to know that LTK is the creation of former corporate lawyer and now activist Robert Hinkley of Essential Action. However LTK is more than just a spoof; it is an actual tobacco company incorporated in the state of Virginia with the stated purpose of engaging in the “manufacture and marketing of tobacco products in a way that each year kills over 400,000 Americans and 4.5 million other persons worldwide.” Hinkley formed the company in order to make a point about both the tobacco industry and the protected status of corporations in American society, particularly those that operate at the expense of public health and safety. While LTK’s application raised eyebrows at the State Corporation Commission, as long as the name isn’t already registered and the applicant pays the filing fee, the application meets basic requirements, and the state has little choice but to grant a corporate charter. Thus, on March 19, 2003, Licensed to Kill was born.

One month later, anti-tobacco activists, including 200 youth, staged a protest at the Virginia State Capital to condemn the company, to call for stricter tobacco control and to stand in solidarity with tobacco control activists around the world. The activists were not alone. Licensed to Kill CEO “Rich Fromdeth” and other Senior VPs were at the state capital celebrating the founding of their new company. Company director Gray Vastone stated, “If a person was to ask the state for authorization to go on a serial killing rampage, he would surely be locked up in jail or a mental institution. Luckily, such moral standards do not apply to corporations.” As LTK executives attempted to introduce their new cigarette brands “Serial Killer,” “Genocide,” and “Global Massacre,” the youth activists booed and attempted to drown out their speeches. In an imaginative alliance, LTK and Essential Action work together to educate the media and the general public about the health hazards of tobacco, the tobacco industry, and the nature of corporations that profit at the expense of human health. In these staged confrontations, LTK “representatives” spoof Big Tobacco and Essential Action youth protest them and the tobacco industry at large.

Licensed to Kill’s website is a humorous critique of Big Tobacco. In the “about our company” section, LTK defines the five attributes that define their business as “a strong commitment to profits over people; excellence in marketing death; financial pay-offs; innovation in public relation spin, and an undying dedication to making a killing.” Their motto is “We’re Rich. You’re Dead!” Licensed to Kill separates itself out from other Big Tobacco companies through their dedication to transparency. They openly admit their products cause death and disease (and that they don’t care); they don’t attempt to improve their public image through a company name change, and they don’t state one thing publicly and another privately. Instead, LTK admits that they market to young people (“Duh! It’s plain common business sense!”) through brands like “Chain™”, a chocolate flavored cigarette. The company also admits it markets to African Americans and specifically designed the product “Slave” to celebrate the historical linkages between Africans and the tobacco industry.

While other tobacco industry representatives try to downplay the health hazards of smoking and secondhand smoke, (“The solution is really quite simple: just don’t breathe!”), LTK boasts that the death and disease caused by smoking is good for the economy: “When our customers eventually succumb to emphysema and cancer, they spend billions of dollars on oxygen tanks, chemotherapy, and medical operations. Every cigarette smoked represents money earned and a stronger American economy.” Big Tobacco is also good for the global economy, states LTK, and applauds weaker tobacco control regulations in countries around the world which allow them to market their products to larger numbers of youth and adults. Finally, Licensed to Kill representatives also laud the U.S. government for its granting corporations Bill of Rights protections such as the right to advertise a deadly product is protected under the guise of “free speech.”

Through mock documents on their website, press releases, and events staged throughout the world, LTK specifically critiques Philip Morris/Altria. For example, shortly after LTK’s incorporation, former Virginia Governor Mark Warner announced that Philip Morris would create 450 jobs in the Richmond area in return for a $25 million performance-based grant from the Virginia Investment Program. LTK responded that it would also seek a relocation incentive package from the state of Virginia. In order to increase its chances, company executives announced that they would invest $1 million in local Richmond area charities: “It’s a tried and true way of showing that, despite our company’s intent to kill 4.9 million people annually, we’re really a good corporation citizen – every dollar we donate buys us the freedom to continue business as usual,” stated Senior VP Corrie Prutspin.

In 2004 the company issued a press release stating LTK executives were in Thailand to attend the ASEAN Art Awards and to “lend Philip Morris support in defending their industry’s right to use art to cover up the 5 million lives it kills worldwide and every year – including more than 40,000 in Thailand alone.” Company spokesperson Virginia Slime also announced LTK’s support for efforts to prevent the ratification and implementation of the Framework Convention on Tobacco Control. The company had previously praised the Bush Administration for its efforts to gut the treaty. Rich Fromdeth declared, “A ban on tobacco advertising, promotion and sponsorship would eliminate one of our industry’s most effective avenues for hooking kids and young adults to our addictive product line. It’s heartening to have a president who stands up for the Big Guys, however unpopular or detrimental to public health it may be.”

In June of 2005, LTK issued a press release announcing that executives would be in Washington, DC to lobby DC city council member Jim Graham against supporting smokefree workplace legislation. CEO Rich Fromdeth argued, “If he cares at all about the health of the tobacco industry, he will take a stand for maintaining the smoky status quo.” Senior VP Virginia Slime continued, “Unlike our industry rival, Altria, which gave the Metropolitan Restaurant Association of Washington $10,000 for its awards ceremony last week, Licensed to Kill believes in direct lobbying.”

Essential Action’s humorous and over-the-top approach both provides information about Big Tobacco and also generates media and public interest in tobacco control, especially among young people. It demonstrates that small organizations can contribute to the changes in public consciousness that will be needed to reduce the harm from tobacco and other lethal but legal products.

Tracking the Effects of Corporate Practices on Health