If the legend of David and Goliath teaches anything, it’s that when you want to take down a giant, you should aim for its smallest unprotected body part. So when two Oakland-based organizations, the Environmental Law Foundation and the Environmental Working Group, wanted to raise concerns about the chemical content of the product sold by Glacier Water, they didn’t sue over the company’s manufacturing practices. They attacked the truthfulness of its advertising.
Although rival businesses and the Federal Trade Commission often hold companies accountable for the truth of their advertising, using such suits to push for consumer reforms is a relatively novel legal tactic for activists. But lawsuits of this type can be a useful tool for public-interest groups when government agencies fail to enforce their own regulations or when taking on a corporation through more conventional legal means is too difficult.
Activists often want companies to do more than just change their advertising copy — they want them to change their business practices and production methods. For instance, the plaintiffs in the Glacier Water case say they hope the suit will call attention to the quality of vended drinking water, possibly leading the company to produce a better product. They’d also like the state to begin more vigorously enforcing its own regulations, and consumers to change their buying habits.
The Glacier suit comes at a time when two other high-profile Bay Area suits also are challenging companies’ advertising as a way to force them to alter their behavior. In December, the Physicians Committee for Responsible Medicine filed the nation’s first false advertising suit against a major meat producer, saying that Tyson Foods, Inc., incorrectly advertises its chicken as additive-free and “all-natural” in magazine and television ads, and uses the Web to advertise chicken as a “heart-healthy” food that can be eaten “as often as you like.” The complaint claims that not only does chicken contain cholesterol, but due to the crowded conditions under which Tyson chickens are raised, its products may contain antibiotic residue, as well as antibiotic-resistant bacteria. The case cites a study in January’s issue of Consumer Reports claiming that 56 percent of the Tyson chicken products sampled contained the campylobacter bacteria and 15 percent contained salmonella.
Perhaps most notable is the case of Kasky v. Nike, which is now before the Supreme Court. In 1998, San Francisco environmentalist Marc Kasky filed a complaint against the sportswear giant for allegedly making false claims in press releases, letters to the editor, and on its Web site about the working conditions in its Asian factories. Nike claimed it was merely addressing a matter of public debate, and therefore has a constitutional right to free speech. Activist groups such as San Francisco’s Global Exchange, which has filed a friend-of-the-court brief on Kasky’s behalf, argue that, as a profit-making corporation, all of Nike’s statements are commercial speech that is subject to truth-in-advertising regulations. After the California Supreme Court decided 4-3 in favor of Kasky earlier last year, the case was appealed to the United States Supreme Court, which agreed last week to review it. If the court lets the ruling stand, it could have sweeping ramifications for what corporations are allowed to say about their own products and behavior.
Glacier Water is a formidable foe, although its advertising profile is actually quite minimal. It is the nation’s largest provider of vended water, doing business in 38 states, and supplying the serve-yourself water machines found in many Bay Area grocery stores. Glacier’s machines take the same tap water you get at home and run it through seven filters designed to remove chlorine and other foul-tasting impurities. Glacier CEO and President Brian McInerney describes the company’s vending machines as “essentially little factories that we hook up to municipal water sources.” “Anything the big bottled-water companies do, we do,” McInerney says. “We just do it through a machine. At no point do we add anything back to what is already state- and federally regulated water.”
But the two environmental groups claim that there’s something nasty in Glacier water. According to the results of a study conducted by the Environmental Working Group, the water in many Glacier machines exceeds state limitations on trihalomethanes, by-products of chlorination that have been linked with cancer, birth defects, and low birth weight. Although the federal government limits the amount of trihalomethanes permissible in tap water to eighty parts per billion, California’s standard for vended or bottled water is only ten parts per billion.
Glacier doesn’t run print or television ads; its advertising consists of statements on vending machines claiming to remove 97 percent of the contaminants in water. The environmental groups say that after testing more than 270 Glacier machines throughout the state, more than one-third failed to meet state standards for trihalomethanes, and more than two-thirds failed to meet Glacier’s claim that it removed 97 percent of the water’s impurities.
The complaint was filed under California’s Unfair Competition Law, which gives individuals and groups the right to sue companies for consumer fraud even if they have not been personally injured by the product. According to Bill Walker, vice president of the Environmental Working Group’s West Coast office, Glacier targets its sales at recent immigrants from Mexico and Asia, who may be accustomed to believing that tap water is unsafe. The price of Glacier Water varies, but it averages about 25 cents per gallon, while East Bay tap water costs about half a cent per gallon. “Glacier’s sales are in the range of $60 million, so you can see they’re making a tidy profit off of people who can least afford to spend that extra money on a product that doesn’t meet its claims,” Walker says.
Walker says suits such as the one against Glacier Water are a reaction to the government’s lackluster enforcement of its own regulations: The intent is to generate negative publicity that can change people’s buying habits. “If the state neglects its responsibility and doesn’t enforce its standards, consumers can become educated about the fact that this water isn’t chemical-free or this sneaker isn’t made without sweatshop labor,” Walker says. “They can vote with their dollars.”
As in the Nike and Tyson cases, the plaintiffs in the Glacier Water case are doing more than quibbling about semantics: They want concrete reforms. “We are not trying to put Glacier Water out of business, but nothing would delight us more than them improving their practices to the point where they can meet both state law and the claims they’re making,” Walker says.
After all, it’s often an uphill battle to get the government to scrutinize private company’s practices, notes Jay Ukryn, staff attorney for the Physicians Committee for Responsible Medicine, which filed the Tyson chicken case. “I would love for Tyson to stop making products the way they do, but there’s so little federal regulation of food and animal production that it’s hard to say that Tyson is doing anything illegal, because we just don’t know,” he says. It’s easier to focus on something that is clearly illegal and very public — false advertising.
Although the Food and Drug Administration oversees relevant product labeling and conducts some investigations, it seldom micromanages the way the companies it regulates do business. Likewise, although FTC staff attorney Matthew Gold characterizes the nation’s advertising regulations as being “very common sense and fairly strict,” the commission’s oversight is not absolute. “It’s a big country and there are a lot of companies out there, and we’re not a huge agency,” he says. “We’re not always able to police everything that’s going on.”
This problem is often reiterated at the state level. There simply aren’t enough eyes in enough places to catch every example of consumer fraud. “Sometimes agencies don’t have a whole lot of money, or maybe there’s politics involved,” says Megan Evart, a law fellow with the Environmental Legal Foundation. “The government relies on private parties to do some of the work they just don’t have the resources to do.”
But gathering enough evidence to file a strong consumer complaint suit can be difficult, even for private parties. “In general, you have to wait until somebody gets injured or dead,” says Jane Kelly, director of the Oakland office of Public Citizen, the consumer rights group founded by Ralph Nader. In a case where a product allegedly contains small amounts of dangerous compounds that build up over time — as is alleged in the suits against both Glacier Water and Tyson — it can be hard to show damages. “It takes lifetimes before those kinds of injuries might show up, and generally they’re not the kind of injury that’s significant enough to file a personal-injury lawsuit,” says Kelly. “They have to wait until a significantly large injury to a single individual is clearly caused by that corporation’s lie — for example a rollover of a sports utility vehicle with Firestone tires on it.”
Although activist groups frequently file conventional lawsuits to challenge corporate practices, the going can be slow. Global Exchange, for example, just settled a class-action lawsuit against retailers including the Gap, Target, Nordstrom, and J. Crew, which they claimed were operating sweatshops on the Pacific island of Saipan, a US territory. It took four years of legal wrangling for the court to decide in Global Exchange’s favor. “It can be very effective, but it’s also hugely time-consuming,” says Global Exchange organizer Jason Mark. “The courts move very slow, and for us that’s been very frustrating, even when we got the victory in the end.”
Litigating over advertising language has been closely tied to rising public concern about nutrition, the environment, and workplace conditions, and industry’s corresponding attempts to market their products to consumers for whom these values matter. But as manufacturers rushed to advertise their products as “dolphin safe,” “low sodium,” “fair trade,” or being “a significant source” of desirable vitamins, the ambiguity of these terms was confusing to consumers — not to mention to the agencies charged with enforcing such standards. “Those words could be thought of as very vague,” says Gold. “What is ‘a significant source’? What is ‘low’ and what is ‘high’?”
After all, the validity of manufacturers’ environmental and human-rights claims aren’t always readily apparent. Buyers can typically tell if a soap gets stains out as well as its advertisements claim, but it’s much harder for someone to know under what factory conditions their clothing was produced, or whether the food they’re eating is truly chemical-free. “There are a lot of things we can judge for ourselves, but with nutrition and chemical content we really need to rely on the truth in the advertising to make a good decision,” says Andrea Levine, director of the national advertising division of the Better Business Bureau.
This ambiguity led to a rash of legal challenges in the early ’90s, Levine says. In 1992 and 1993, the FTC and the FDA laid down definitions for terms such as “fat-free,” “biodegradable,” and “recycled.” But the pressure on companies to look good publicly led some to exaggerate their eco-friendliness — a practice activists quickly branded as “greenwashing.”
“When companies are trying to greenwash themselves or make the claim that they are paying attention to human-rights violations issues that have been raised, for them to turn that around and use it to their advantage to sell products is particularly galling if their claims are not true,” Public Citizen’s Kelly says. “I’m really happy that these groups are monitoring the claims these corporations are making and holding them accountable in the courts because that’s one place where they can’t ignore it.”
All of this is somewhat befuddling to McInerney, Glacier’s president, who says he’s surprised that his company is being targeted. For one thing, he notes, even the Environmental Working Group admits that the trihalomethane levels in Glacier Water meet federal standards, which he believes ensures the complete safety of consumers. Plaintiffs in the case also agree that there is no impending health crisis nor evidence that anyone has ever been damaged by drinking water from Glacier’s machines. “We’ve been doing this for twenty years and we’ve never had a public health issue,” McInerney says. “We do 40,000 biological tests a year to make sure the water’s safe. We’re not just winging it here.” And since the company doesn’t advertise except on its dispensers, there’s no ad copy to change. However, he says, “We will do what’s right and go look at the machines they claim had problems and make sure they are operating correctly.”
