When It Comes To Banning Soda, Marion Nestle Fights Dirty

I don't have a dog in the fight on the proposed New York City large-soda ban. But what I do care about, deeply, is using sound reasoning to think through important public policy issues. I believe it's offensive and unethical for pundits, leaders and public policy experts to employ fallacious logic and base appeals to emotion in their attempts to persuade us. I guess I'm just naive that way.

And this is why, in today's post here at CK, I'm going to break down and deconstruct Marion Nestle's latest defense of New York City's large-soda ban. First, I ask readers to read her post on its own, which ran both at the San Francisco Chronicle and on Nestle's own blog, Food Politics. (Friday Links readers have already seen this article.)

Next, read below, where you'll find her article combined with my parenthetical notes (in bold text) on each of Nestle's various fallacies and logic holes. I'll say up front: this article is one of the most dubious, illogical and unethically argued things I've seen in seven years of writing Casual Kitchen. My goal today is to give Marion Nestle's article a thorough Fisking, and expose, systematically, all of its questionable logic and tactics. What she's done here, as you will soon see, is misleading and wrong.

I have always respected Marion Nestle. I read her regularly. I look up to her for reasoned food industry analysis. But when I see a respected and admired food expert argue an important issue almost entirely based on appeals to emotion, innuendo, conspiracy theories, proof by vigorous assertion and conflicting logic, I simply cannot let it go uncriticized--even if I might actually agree with her position.

And when I see her strongly imply that important minority organizations acted against their own members' interests in this debate, I had to call Nestle out. Read on and you'll see what I mean.

Warning: Today's post is long--more than 2,000 words. But if you care whether our public policy issues are discussed fairly, reasonably and rationally, I encourage you to read the entire thing.

Once again, I don't have a dog in the fight over large sodas. I have a dog in the fight over honest debate.

Soda-Cap Size Is a Public Health Issue by Marion Nestle

Here’s my monthly Food Matters column from the San Francisco Chronicle. The question (edited) came from a reader of this blog.

Q: You view New York City’s cap on any soda larger than 16 ounces as good for public health. I don’t care if sodas are bad for us. The question is “Whose choice is it?” And what role should the nanny state play in this issue?

A: Your question comes up at a time when the New York State Supreme Court is hearing arguments about whether New York City’s health department has the right to establish a limit on soda sizes.

As an advocate for public health, I think a soda cap makes sense. Sixteen ounces provides two full servings, about 50 grams of sugars, and 200 calories – 10 percent of daily calories for someone who consumes 2,000 calories a day (This reason--that there's lots of sugar and calories in soda--actually doesn't make sense unless you ban all large sizes of all high-sugar and high-calorie drinks. A sixteen ounce glass of orange juice provides almost exactly the same amount of sugar and even MORE calories than soda. Calorie and sugar content therefore can't be a rationale for a large soda ban unless we ban many other high-calorie drinks too).

That’s a generous amount. In the 1950s, Coca-Cola advertised this size as large enough to serve three people. (This is a convincing appeal to emotion, but logically it's irrelevant. This debate doesn't hinge on what Coca-Cola may have advertised in the past. Heck, in the 1890s, Coke advertised coca leaf extract in its cola).

You may not care whether sodas are bad for health (This is shaming language; it subverts and criticizes the questioner's character and motives. It's an example of the ad hominem fallacy and it is also an appeal to our base emotions), but plenty of other people do (this fallacy, which we're about to see in the next sentence, is called the False Authority fallacy). These include, among others, officials who must spend taxpayer dollars to care for the health of people with obesity-related chronic illnesses, employers dealing with a chronically ill workforce, the parents and teachers of overweight children, dentists who treat tooth decay, and a military desperate for recruits who can meet fitness standards (While these are all groups that we all care deeply about, none--with the possible exception of dentists treating tooth decay--is relevant to this argument. In order to have logical justification for a soda ban, you must at least show some evidence that soda is a key cause of the problems each of these groups face. But there are countless drivers behind obesity and chronic illness.

Further, why in the world are we including the military on this list of hypothetical groups who care whether sodas are bad for health? A soda ban in New York City plays no role in any issue facing our military. This is just a list of sympathy-inducing groups meant to appeal to our emotions at the expense of rational thought.)

Poor health is much more than an individual, personal problem. If you are ill, your illness has consequences for others (Agreed that my hypothetical illness may have economic consequences for others, however we lack evidence that banning large bottles of soda will have any impact on obesity or on obesity-related illness. This is a poorly substantiated leap of logic.)

That is where public health measures come in. The closest analogy is food fortification. You have to eat vitamins and iron with your bread and cereals whether you want to or not. (Let's set aside the basic tone-deafness of an expert saying you have to eat something "whether you want to or not" and consider that the idea of food fortification is an example of a health policy decision that may not be good for us at all. This isn't evidence to support a soda ban--if anything, it's evidence that public health elites are often wrong in the things they decide for us.) You have to wear seat belts in a car and a helmet on a motorcycle. You can’t drive much over the speed limit or under the influence. You can’t smoke in public places (Readers: are these fair analogies or fallacious ones? Hint: smoking in public directly harms the people around you. Driving over the speed limit directly increases risk to other drivers. Drinking large sodas harms others only if we can swallow the unsubstantiated leap of logic Nestle makes in the prior paragraph.)

Would you leave it up to individuals to do as they please in these instances regardless of the effects of their choices on themselves, other people and society? Haven’t these “nanny state” measures, as you call them, made life healthier and safer for everyone? (I don't want to get into a debate on civil liberties here, but in a free society we actually can do more or less what we want as long as we don't injure others. Thus I can eat food or drink soda whenever I wish, even if might be bad for me. This argument, as definitional as it might be, doesn't concern Nestle.)

All the soda cap is designed to do is to make the default food choice the healthier choice. (But what is stopping people from buying two, three or ten 16-ounce sodas?) This isn’t about denial of choice. If you want more than 16 ounces, no government official is stopping you from ordering as many of those sizes as you like. (This is an incoherent contradiction. Is this a ban or not? If it won't impact our choices, then why have it? This is where a citizen should begin to suspect that things are not as they seem: Don't worry about our ban, it won't impact anything, really. It won't.)

What troubles me about the freedom-to-choose, nanny-state argument is that it deflects attention from the real issue: the ferocious efforts of the soda industry to protect sales of its products at any monetary or social cost. (Here's where Nestle shifts the argument onto even more tenuous logical ground with a neat sleight of hand. She dismisses the issue of civil-liberties as irrelevant, when it quite obviously is an incredibly important issue to many. In its place we are presented with a rhetorical diversion and a new enemy: greedy corporations. Emotional words and phrases like "ferocious" and "at any monetary or social cost" help lubricate this transition. Most readers will never notice the logical fallacy.)

The lawsuit against the soda cap is a perfect example. It is funded by the American Beverage Association, the trade association for Coca-Cola, PepsiCo and other soft-drink companies, at what must be astronomical expense. (Any organization, person or corporation has full rights to use the court system in an appropriate way under the law. But if you use phrases like "at what must be astronomical expense" you've now framed it up as just another manifestation of corporate greed. Nestle is painting a picture here, not using logic. This is another example of appealing to emotion. PS: If you hate corporations too, you will always fall for this argument technique.)

To confuse the public about corporate profits as a motive, the beverage association enlisted two distinguished civil rights groups – the NAACP and the Hispanic Federation - to file an amicus brief on behalf of its lawsuit. (Here's where Marion Nestle starts making some really big, and really bad, mistakes. Here, she implies--unintentionally, I hope--that the NAACP and the Hispanic Federation were somehow duped into filing friend-of-the-court briefs in an effort "to confuse the public about corporate profits as a motive." Keep reading. Things are about to get very ugly.)

Never mind that the obesity rate for the communities these groups represent is considerably higher than average in New York City, and that these neighborhoods would benefit most from the soda cap. The amicus brief argues that the soda cap discriminates against them. (Hold on: A paragraph ago, Nestle claimed the amicus brief was intended to confuse the public about the beverage association's motive for profits. Now, she's implying that the NAACP and the Hispanic Federation are acting contrary to their own members' interests.)

The brief, however, neglects to mention that both amicus groups received large donations from soda companies and that the NAACP in particular has a long history of partnership with Coca-Cola (Nestle now puts herself on very risky rhetorical ground. She implies that the NAACP and Hispanic Federation wrote an amicus brief to the court in a quid pro quo... for money. I ask readers to reread the prior three paragraphs and decide for themselves whether it is truly ethical, appropriate and relevant to make these allegations. This article is supposed to be a defense of the large-soda ban, yet Nestle strays totally afield, resorting to the oldest rhetorical trick in the book: smear the opposition. This is a sophisticated use of the ad hominem fallacy.)

Financial arrangements between soda companies and ostensibly independent groups demand scrutiny. (This is still more innuendo: an analogy would be to demand to see and scrutinize all the donors--corporate and otherwise--who give money to NYU, where Marion Nestle teaches. That said, if Cadbury-Schweppes or PepsiCo donated money to NYU, would this invalidate all of Marion Nestle's views? Of course not.) National and local reporters – bless them – have done just that. (I'm sorry, but blessing them has nothing to do with anything.)

They report, among other connections, that one of the law firms working for Coca-Cola wrote the amicus brief, and that a former president of the Hispanic Federation just took a job with that company. (That's all? That's all the support Nestle has behind the implication that NAACP and the Hispanic Federation sold out their members by offering an amicus curae brief for a court case?)

Last fall, the East Bay Express exposed how the soda industry exploited race issues to divide the electorate and defeat the Measure N soda tax initiative in Richmond. It revealed that the beverage association not only paid for the successful “grassroots” campaign against Measure N but also encouraged views of the soda tax as racist (And yet it isn't exploiting race issues to imply that the NAACP and the Hispanic Federation were either duped or acted contrary to their members' interests--as Nestle does across the previous six paragraphs. The illogic here is simply astonishing).

Driven by this experience, the soda industry is repeating this tactic in New York City.

Is a cap on soda sizes discriminatory against groups working for civil rights? Not a chance. (Nestle offers no evidence to support this statement. This is the proof by vigorous assertion fallacy).

Public health measures are about alleviating health disparities and giving everyone equal access to healthy diets and lifestyles. (Yet this is a completely different issue. It has nothing whatsoever to do with banning large soda sizes. These are feel-good phrases and emotional appeals; there's no logic here.) This makes public health – and initiatives like the soda cap – broadly inclusive and democratic (Even if you don't have a problem with policy experts deciding what size soda we're allowed to drink, you have to admit that calling it "broadly inclusive and democratic" is egregious doublespeak).

If anything is undemocratic and elitist, it is suing New York City over the soda cap. (On the contrary, eliminating peoples' choices--even if you believe it's for their own good--is undemocratic and elitist. A related thought: when a public policy expert says "I'm not elitist, my opponents are!" immediately after using ad hominem arguments to attack that opposition, consider Shakespeare's quote you doth protest too much.)

In funding this lawsuit, the soda industry has made it clear that it will go to any length to protect its profits (now Nestle launches into pure conspiracy theory in an overt appeal to emotion), even if it means discrediting the groups that would most benefit from this rather benign public health initiative. (No. In reality, it was Marion Nestle who did all the discrediting here by implying that both the NAACP and the Hispanic Federation acted contrary to their members' interests.)

Final Thoughts
I was afraid to publish today's post. I'm worried readers might interpret it as nothing more than a really long hatchet job. Or that they might think I have nothing better to do than to criticize and take potshots at a perfectly harmless public health professor at NYU. Or that I'm in over my head on issues I have no credibility discussing.

But the reason I hit the publish button on this post boils down to one thing: I believe--strongly and perhaps naively--that debates on important public policy issues should be honest, earnest and fact-based.

If you have to rely on fallacy, appeals to emotion and smearing the opposition to "win" a public health policy debate, can your position really be defensible?

Readers, please share your thoughts.

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chacha1 said...

Dan, I love you.

I respect Marion Nestle as a person, but her blog always annoys me. This piece is a prime example why.

Yes, corporate farming and food manufacturers create bad food and tempting advertising. None of that removes the duty of the consumer to take responsibility for his/her own consumption.

While I understand the reasoning - apparently some people really do have to be FORCED to stop doing things that are bad for them! - I think the "soda ban" is a pretty dumb use of time, money, and other resources that could be much better employed by our various levels of government.

Stuart Carter said...

fantastic post, Dan. Very well phrased, and relevant to another issue that is getting a lot of air time just now that the proponents claim is "common sense (from their perspective and anyone who disagrees is a terrorist)"

Joanne said...

I am all for the soda ban (especially as one who lives in NYC and doesn't drink soda) but it was definitely interesting to read your post! It definitely helped me think more critically on the issue and ignore some of the rhetoric that's being thrown around...which is always a good thing.

Daniel said...

Thanks for the good vibes Chacha, Stuart and Joanne, I'm grateful.

One other thing that's been a surprise about this post: the pageview traffic on this post has been off the charts--despite the fact that it's more than twice as long as the typical CK post! Nice to see.


Anonymous said...

Joanne what a bone head. Help me understand why you are for the ban & you don't even drink sodas. Don't you get it? Dan said it perfectly "eliminating peoples' choices--even if you believe it's for their own good--is undemocratic and elitist" What happens when they start limiting the things you do drink or eat, then will you be against a ban? Use the brain God gave you.

Daniel said...

Whoa, whoa. Okay. I also talk about the ad hominem fallacy too, Anonymous. Let's not devolve into name-calling, all right?


Anonymous said...

I'm not from the us since almost everything that happens there is reflected in a lot of countries including mine it's kinda a perturbing thought, however it was a rather interesting article, i think the soda cap (as long as i understand is to limit to certain sizes) is mostly a really low campaign, when people can't buy the large soda bottles, they will be forced to buy the small ones, now imagine to get out from a store with 7-12 of the small bottles, there will be dirty looks and some name calling included with that, of course there will be a reduction but more by public humiliation than the right reasons, btw i found interesting that most of your recipes don't have salt on it

Morgan Downey said...

Great post. I very much agree. I’d like to point you to a post I made in September referring to research studies which undermine the rationale for this ban. http://www.downeyobesityreport.com/2012/09/note-to-mayor-bloomberg-its-harder-than-you-think/
In addition, the Supreme Court decision upholding the Affordable Care Act uses hypothetical obesity regulation as an example of what would not be constitutional under the Commerce Clause. Yes, it is dicta. And yes, New York has police power and need not rely on the Commerce Clause. Nevertheless, Chief Justice Roberts’ decision and another case from California on regulating violent video games indicate that there are constitutional limits on reach of well-intentioned but intrusive legislation. http://www.downeyobesityreport.com/2013/02/the-supreme-court-and-the-future-of-obesity-policies/

Morgan Downey said...

I'd like to make another comment on the position of the NAACP and Hispanic groups on this issue. Growing up in New York City in the 50s, there was a lot of concern that the "ghetto" as it was called then was full of liquor stores and in need of economic development. Food outlets were a natural business to bring in and franchises are well suited to minority entrepreneurs. Those small business owners are the backbone of the minority communities and organizations. Minorities are more the target of this ban than whites so it is natural that these groups would try to protect their businesses.

deedeeski said...

I think you did a really good job. As a doctoral student, I have been schooled to watch the value statements and emotional arguments. I too like Marion Nestle and her work, but you were right on much of what you said. The only thing I am left to whimper (because I love the soda size ban and Mayor Bloomberg) is that there is scientific evidence that soda drinkers tend to consume more calories than non soda drinkers and thus have higher rates of obesity. Of course, we don't have a nice RCT to infer causation. You were spot on that it is NOT a soda problem. Its an association between sugar sweetened beverages and overweight. Orange juice is evil. :) (I mean that, eat your fruit for goodness sakes)

Neva Cochran, Registered Dietitian said...

Great post. As a registered dietitian, here's my take on this soda portion limit. While this ban may make good headlines, it's unlikely to have any real impact on people’s waistlines. That’s because added sugar intake from both table sugar and high fructose corn syrup has gone down in the U.S. over the last 12 years, significantly driven by a decline in sweetened soda consumption. People are switching to more calorie-free sodas!

Neva Cochran, MS, RD, LD, Consultant, Corn Refiners Association

Anonymous said...

Dan, I learned a lot! You made me scratch my head and heat up some brain cells, pointing out the different tactics of debate.

I'm still on the fence about the soda ban. I think our efforts could be better used elsewhere (BPA, food additives, etc), but I also agree that those consuming Big Gulps are a drain on all taxpayers. In a perfect world the USDA would promote organic farming and end subsidies that soda companies rely on. In a perfect world the "Nanny State" would look at whole health and address a broader spectrum, not just point the finger at soda. In a perfect world common sense would reign. I guess we need more Big Picture thinking from our government? And influential people like Marion Nestle? And ourselves?

Shall I hold my breath?

Thanks for writing this, it was very educational!

Unknown said...

That's a very nicely written blog post, Daniel. I loved reading it. Even I'm also in the favor of ban. Eventually it is for the good only.

Finn Felton
Kopi Luwak

Adele Hite said...

Wow. I second chacha - I think I love you too. Although there are plenty of things that Marion Nestle says that make sense (why have health claims on product packages?), too often her claims are empty--or as you've brilliantly pointed out, loaded--rhetoric. I am a nutritionist (a registered dietitian) and a PhD student in Communication & Rhetoric. I chose my PhD program because Nestle-type rhetoric has infected much of public health nutrition. Nestle positions herself as an "outsider" doing battle against "big industry" and fails to acknowledge her long-time connections to the biggest player in food/nutrition, the US government. We didn't actually have an obesity crisis until the USDA/HHS started telling us what to eat in order to avoid obesity. It's a policy they--and Nestle--have been trying to justify ever since, with the kind of rhetoric you illustrate here. Terrific job.