Attacking the Ads to Change the Product 

Activists discover an effective new weapon to drive corporate reform: false-advertising lawsuits.

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."

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