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NAANA DEI (ND): In your experience, what are some of the tools that corporations use to gain public support against health bills such as the soda tax? How can we leverage those tools and use them for public health advocacy?

THOMAS MERRILL (TM): They are really good at messaging. They have ad companies and ad departments that are pros at this. Public Health people are not so good at messaging.  With that said, even their messaging talents didn’t allow them to come out portion cap unscathed; our initiative to get people talking about big sodas and lots of the TV coverage, while pillaring us for limiting choice, similarly made fun of 48-ounce sodas. I think the net effect was to soften the ground for later campaigns like the Berkeley soda tax in California. If you stay on point, even if you lose, you make it possible for the next community or the next effort to work because the fact that soda isn’t healthy gets communicated.

I also think it’s worth looking at some of the messaging about smaller portions that the industry was doing on the eve of our rule going into effect. They thought they were going to lose (and they should have!). Consequently, they were preparing for a new market with smaller sizes and had started to promote their new products. They were pretty good at this and, if anyone can find the old ad campaigns that they were running on bus stops and bus sides about 16 oz and O sugar options, they were pretty good. 

ND: PepsiCo has lobbied against at least 29 public health bills, including the soda tax. They have also pledged to several environmental strategies. Can you describe some of the conflicts of interest that companies like PepsiCo have when lobbying against public health laws that could improve the health, specifically their partners (i.e., CUNY community)? 

TM: Soda is uniquely bad because, being that it is just sugar water, it has no health benefit [and is] directly associated with several diseases like obesity and diabetes. The conflict is that such funding obfuscates the unique health risks of SSBs and downplays its role as a health hazard.  For this reason, while at DOHMH, we developed a policy around gift acceptance and looked at various companies and charities associated with industries. Looking at various products and their health risks, we came up with two industries that we pledged not to take any money from: tobacco and soda.  We unsuccessfully tried to push the larger city to adopt this policy (but when you involve different agencies with different priorities and different villains it gets tough when you’re talking about limiting supplemental public funding).  For us, however, these two industries were uniquely bad and, with soda, for instance,  we didn’t want Coke or Pepsi to be funding “healthy” initiatives in the schools around physical activity because we thought it clouded the health impacts of soda. 

ND: What are some roadblocks experienced by DOHMH during the policy proposal phase and how can CUFPI avoid those challenges in our advocacy efforts against the PepsiCo PRC?

TM: Prior to the portion cap rule, we unsuccessfully advocated for a soda tax. This was around 2008 or so when Tom Frieden was Commissioner. There were two big roadblocks. One, taxes per the state Constitution must be authorized by the State legislature; this was not something we could do locally in New York City. That meant we had to convince Albany to create a tax and that proved undoable because of the second roadblock: Pepsi was a huge employer in the state, and because of that had lots of influence in Albany. 

We thus started looking for other policies that we could do locally and ultimately tried to limit portion size in 2013.  While we passed the rule through the Board of Health, we then faced these series of roadblocks: Firstly, the soda industry is much better at messaging than public health departments and groups are. The American Beverage Association (ABA), which is primarily funded by Pepsi and Coke, spun the rule both as a major infraction of consumer choice and an inequitable (discussed below) government action. Despite the rule really not being about choice (but about how a product was served) and the equity arguments being in our favor, we were never able to effectively counter their messaging.  

Secondly, the ABA has vast resources.  They pumped millions of dollars into NYC both to promote their messaging and to generate an “astroturf” movement against the rule. They had paid “activists” collecting petitions and promoting a fake public response to the rule.  And, perhaps most importantly, their vast resources allowed the industry to outgun the City legally.  NYC has a very large law department and more legal resources than even most states.  Yet, it was only able to commit a few lawyers to the case.  The ABA, on the other hand, was represented by teams of lawyers from several of the nation’s best firms and they hired teams of lawyers from yet other firms to represent the “interested groups” that were on their side.

Lastly, the ABA co-opted the equity argument. The burden of obesity and diabetes falls disproportionately on people of color. Yet, the “interested groups” against us and with the ABA included the NAACP and business groups like the first named plaintiff, Central Hispanic Chambers of Commerce.  The ABA gives funding to various NAACP chapters, which is how they secured this support (they also hired the lawyers who represented it). Their portrayal of the rule included attacks that it was bad for minority-owned businesses and would cost jobs, which is what they got CHC to argue. I don’t think there’s any evidence that smaller bottles would lead to less sales at bodegas and markets, but that is what they claimed.  It allowed them to have those allies and clouded out the argument that the rule would have addressed health inequity.  

ND: How can policymakers continue to engage with younger audiences to promote healthier laws? 

TM: Interesting question. I think effective engagement begins with effective education about health and diet. DOHMH had and probably still has programs in its health centers for families, but for a broad reach, it should be part of the school curriculum. This also ties into one of your other questions; one reason we were against industry-funded public initiatives; in addition to promoting brands they tend to overemphasize the role of physical activity in combating obesity. If education includes teaching about the importance of diet, youth will not only be in a position to make better choices for themselves but also more understanding of the marketing practices of the food industry and thus more willing to support policies that promote healthier choices. 




Thomas W. Merrill

Thomas Merrill, Esq., served as general counsel at the NYC Department of Health and Mental Hygiene (DOHMH) from 2006 to 2020. His knowledge and expertise as a lawyer contributed to portion cap initiative proposed in NYC by the Bloomberg Administration in 2012. This policy, which was later overturned, was intended to reduce the health impacts of sugary drinks by limiting the size of containers used to 16 ounces. He is currently an adjunct professor at CUNY’s Graduate School of Public Health & Health Policy, where he educates students about public health law and key areas of the legal process relevant to health care delivery.