New litigation challenges Big Soda’s marketing strategy

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This blog post was co-authored by Javier Saladich, a Summer Research Intern at the O’Neill Institute. Javier is a third year law student at ESADE Business and Law School in Barcelona, Spain.

A Coca-Cola Foundation advertisement

Last month, two prominent African American pastors and a public health organization sued a major soda manufacturer and soda industry body, alleging that the defendants have misled the public about the health impacts of sugary drinks in breach of consumer protection laws. This post considers the impact of soda consumption on the health of Americans and the potential impacts of litigation against an industry that has prioritized profits over health.

An epidemic of overweight and obesity in the United States

The United States is facing an epidemic of overweight and obesity. Data from the Centers for Disease Control and Prevention (CDC) shows that, as of 2015, 35.7% of adults are overweight and almost 30% are obese. Approximately one in five children aged 6–19 is obese. African American and Latino populations are disproportionately affected by overweight and obesity. For example, data from 2011 and 2012 shows that 22.4% of Latino children aged 2-19 years were obese, compared to 20.2% of African American children, and 14.3% of White children.

Sugary drinks and disease

A growing body of evidence demonstrates that consumption of sugar-sweetened beverages (SSB) is linked to greater energy intake and weight gain, as well as increased risk for metabolic syndrome, type 2-diabetes and heart disease. The Dietary Guidelines for Americans 2015-2020 recommend limiting daily calorie intake from added sugars to 10% of total calories. Since almost half of added sugars in the diets of Americans come from sugary drinks, discouraging consumption is a priority for government health officials.

Big Soda obscures link and shifts blame

The soda industry, led by the American Beverage Association (ABA), denies and obscures the link between soda consumption and disease and lobbies against public health laws and policies designed to reduce consumption. The industry also devotes significant resources to shifting the blame for obesity from sugar intake to lack of physical activity (which is no doubt another national concern). Coca-Cola combines misleading ads with funding for scientific research focused on physical activity rather than the role of food and nutrition in obesity. Confusing and distracting consumers from public health messaging is nothing new for the soda giant, which paid three Harvard scientists in the 1960s to minimize the negative impact of sugar on heart health and shift the blame to saturated fats. The industry’s strategic objective remains the same: to maximize sales of harmful products, prioritizing profits over the public’s health.

Big Soda targets minority groups

In its quest to maximize profits, the soda industry (like Big Tobacco) has increasingly targeted specific communities. Predominately African American and lower-income neighborhoods bear a disproportionately heavy burden of ads for sugary drinks and junk food. In addition to targeted marketing, health disparities are exacerbated by limited access to, and affordability of, healthy and nutritious food options in many communities.

Fighting back: new litigation challenges Big Soda’s marketing strategy

In July, The Washington Post published the story of two African American pastors who got “tired of presiding over funerals for parishioners who died of heart disease, diabetes and stroke” and decided to file a suit against Coca-Cola and the ABA. Together with a public health organization, pastors William Lamar and Delman Coates allege that the defendants’ marketing is false and misleading and in breach of consumer protection laws. They argue that the industry has misled the public about the health impacts of sugary drinks, hampering efforts to protect parishioners. The suit demands a suit of remedies, including prohibiting future unfair and deceptive promotion of sugary drinks and prohibiting any marketing and promotion to children under 12. Coca-Cola states that the case is “legally and factually meritless” and has committed to mounting a vigorous defense.

Regardless of the final outcome, the lawsuit has brought national attention to Big Soda’s marketing strategies as well as the disproportionate burden of diet-related disease experienced by African Americans. As highlighted by Caitlin Dewey of the Washington Post, it “marks a break with tradition for African American and Latino community groups who have been reliable allies of Big Soda for years in policy fights across the country.”

The plaintiffs’ claims resemble litigation brought by several US state attorneys general against major cigarette companies, which resulted in the largest civil settlement in US history, including payments to cover the cost of tobacco-related health care, the public disclosure of millions of tobacco industry documents, and restrictions on tobacco advertising. Ultimately, we may look back on Lamar et al v. Coca-Cola et al. as the beginning of a long, litigious battle against the soda industry, reminiscent of hard-fought and impactful litigation against the tobacco industry.

Posted in Non-communicable diseases; Tagged: , .


Human Rights-Based Approaches to Health: How Do We Measure Them?

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Neil Sircar, J.D., is an LL.M Candidate in Global Health Law at Georgetown University Law Center & the O’Neill Institute for National and Global Health Law. Any questions or comments related to this post can be directed to nrs53@georgetown.edu.

Dr. Tedros, the newly-minted Director-General of the World Health Organization, has made human rights and health one of if not the primary framings for how he will guide WHO over his tenure. However, the reality has long been that health and human rights are often icing on a cake for health system strengthening: sugary and sweet but not the substance that gets baked. Dr. Tedros is cognizant of this situation, stating that “When it comes to rights issues in the reform, importantly, it’s not so much the design of the processes or structures that will make a difference. Far more important is ensuring that health as a human right is engrained into the mindset and attitudes of staff.”

So, how do we measure success in human rights and health? The human rights-based approach (HRBA) a process that for years health advocates have looked to in integrating human rights into programming, and HRBA certainly is a good vehicle in its many iterations for that. But, HRBA remains half-baked (to use the previous metaphor) when it comes to evaluating positive health outcomes resulting from a health-and-human-rights intervention. Many contemporary programs include HRBA or human rights-oriented framing but there is little clear evidence of follow-through or impact; indeed, HRBA may not have been a priority for programs beyond engrained mindsets. Where there are positive claims of successful human rights interventions we lack critical analysis of those claims, their replicability in other contexts, and how big an impact they made. By no means is this posting a critique of those efforts, but rather what I draw attention to is that having the right words on paper or on the minds of global health actors is not enough: we need to know what human rights interventions for health work, when they work, and how to both design and evaluate them.

Some in WHO are already thinking on how to go from concepts to projects and programs, remaining cognizant of the challenges that come from measuring a spectrum of change. Health outcomes are the result of multiple factors, so HRBA may impact any or all of the factors contributing to health and be successful or not. We will not know though unless our interventions are designed to be measurable. Heretofore many study designs have not been structured substantively enough to allow for careful analysis of a particular human rights intervention’s health impact, or are designed in such a way that the impact of particular interventions are difficult to accurately assess. As a consequence, the designers of future HRBA and human rights interventions cannot determine which interventions work best in which contexts. They may not even know where to begin in designing a program or project, even if acting on a well-drafted guidance document or tool.

Human rights in health are a critically important field, and there are plenty of spaces to develop HRBA within global health governance and local health programming. WHO and Dr. Tedros are not alone in seeking to instill a greater modus operandi in their operations and those of their partners. My suggestion: in addition to engraining human rights into the minds of WHO staffers, WHO and other global health actors should develop measurable, evidence-generating interventions that can show the links between greater human rights realization and positive health outcomes, as we must bake-in HRBA to what is being done, not just what is on the minds of those doing something.


Posted in Uncategorized; Tagged: .


The Travel Ban & US Health

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“The executive order impacts all of us. Even as a citizen, I’m wary of traveling; I’m afraid of having problems at the airport.”

Since January, President Trump’s travel ban has triggered ongoing legal and political chaos. It’s been hard to keep up – one minute the order was to be instated, only for a court to stay it in full or in part. But, the order is now in force, for the next 90 days at least. The constant back-and-forth has paused for now, allowing space for reflection. This blog asks, what has happened so far, what’s to come, and should we fear for our health as a result?

Who is banned?

The original order barred entry of nationals of seven majority-Muslim countries (Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen) for at least 90 days; suspended the refugee resettlement program for 120 days; cut the total number of refugees admitted for resettlement to 50,000 in 2017, and imposed an indefinite ban on Syrian refugees. Refugees from a minority religion in their home country, e.g. Christians, would be prioritized. The order also mooted that a list of countries from which entry would be frozen be decided.

Almost immediately, organizations, states and individuals filed requests for a stay. And within a week of its issuance, a federal court stayed the order nationwide. In response, the government amended the order with targeted changes: Iraq was removed from the ban and preference for minority religions was removed. Yet again the order was suspended by courts, finally finding its way to the Supreme Court.

The Supreme Court reinstated the order with respect to foreign nationals who “lack bona fide relationship” with a person or entity in US. A “close familial relationship” is required or a relationship with an entity that is “formal, documented, and formed in the ordinary course” rather than to evade the order, such as a university student or employee.

In light of the Supreme Court decision, the government published guidance to its agencies to enforce the order. It did not include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, siblings in law as close familial relationship. Further, having a resettlement agency in US provide formal assurance for a refugee is not enough. But, in State v. Trump, the government’s interpretation was found an “unduly restrictive” reading of “close familial relationship”, and the listed classes were included. This interpretation was left in place (for now) by the Supreme Court. The Supreme Court will decide on the cases in October session unless the ban has already been lifted.

And why?

The original executive order was called “Protecting the Nation from Foreign Terrorist Entry into the United States.” The express basis for the order was the need to prevent “terrorist or criminal infiltration by foreign nationals.” Yet, the administration did not present empirical evidence between the selected nationalities and the commission of terrorist attacks in the US. The Administration asserts that the temporary travel ban is in the interests of national security, and designed to strengthen vetting procedures from countries at risk of producing terrorists.

Opponents of the order argue that it amounts to discrimination, and preferential treatment of religion contrary to the constitution (the establishment clause). In Hawaii v. Trump, the Court had found that the order exceeded President’s authority under 8USC §§1182(f) and 1185(a) and motivated by anti-Muslim goal.

Direct and Indirect Health Impacts

Forced separation

The travel ban has had documented impacts on the mental and physical health of affected children, families and individuals. In a recent Amnesty International report on the ban, an informant tells of the health impact of feeling compelled to leave his baby in Malaysia for two months while he arranged an emergency visa:

“[The baby] was breastfeeding when she was separated from her mother. I am telling you the mother is like a crazy person now; she does strange things. She blames me: she says this is my fault. You can imagine how she is missing her child. Even I am truly suffering: I feel torn inside that I left my baby.”


All informants in the report speak of the underlying anxiety and concern they have for their future and that of their families. This uncertainty will likely have physiological impacts on those affected and those close to them. In particular, the manner in which the order was issued promoted discord: with no warning it was ushered in, meaning persons with valid visas were denied boarding or entry on arrival. The result was chaos and distress at major airports as citizens protested the sudden events. It has been estimated that immigration officials denied entry to at least 141 people in the first week the order was issued.

Attracting medical professionals

The US faces dire shortages of health workers. Yet, the uncertainty caused by the travel ban discourages workers from engaging in the laborious process of getting a visa to the US. This has implications not just for workers from the listed countries, but also workers from countries who may feel at risk of targeting at a later point. The most qualified applicants may prefer to immigrate to alternative destinations that are more welcoming.

This sad saga in US politics is far from over.  Will the ban be lifted in 90 days or reinforced? Will the Supreme Court have the opportunity to decide on the case? The suggested health impacts are hard to quantify at this juncture and more data is required. However, what is sure, is that in many parts of the world, the image of the US as a beacon for the “tired, huddled masses” has slipped.

Posted in Human Rights, National Healthcare;


Reproductive Rights in Flux: Updates from Latin America and the Caribbean

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This post was written by Rebecca Reingold and Priscila Valencia.

Image Courtesy of NPR

Despite the tremendous strides made towards the realization of reproductive rights in Latin America and the Caribbean in recent decades, the region remains home to the majority of the world’s most restrictive abortion laws. However, reproductive rights advocates are leading efforts to change that in various countries, including Chile, the Dominican Republic and El Salvador.

Read More

Posted in Global Health, Human Rights, Uncategorized; Tagged: , , , , , , .


HIV, Racial Justice, and Legal Organizations Release “Consensus Statement on HIV ‘Treatment as Prevention’ in Criminal Law Reform”

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This blog post was authored by Sean Bland and Javier Saladich, a Summer Research Intern at the O’Neill Institute and a third-year law student at ESADE Business and Law School in Barcelona, Spain.

Earlier this month, a group of organizations and advocates released a “Consensus Statement on HIV ‘Treatment as Prevention’ in Criminal Law Reform”. The consensus statement is intended to serve as a resource in efforts to modernize HIV criminal laws across the United States. Part of the motivation for the consensus statement is to clarify how best to utilize the new science about HIV in advocacy to combat the unjust application of criminal laws to people living with HIV (PLHIV).

New scientific evidence includes numerous studies demonstrating that antiretroviral therapy (ART) not only effectively suppresses HIV in people living with HIV, but can also be a powerful tool for preventing HIV transmission to others. This preventative benefit of treatment is often referred to as Treatment as Prevention. Results from the HIV Prevention Trials Network (HPTN) 052 study found that early versus delayed initiation of ART reduced the risk of HIV transmission from an HIV positive to negative partner by 96%, and a follow-up to HTPN 052 found no transmission from persons with fully suppressed viral loads to their partners. A second study, the Partner Study, followed 1166 serodiscordant couples (one partner was HIV positive and one was HIV negative) for nearly four years and found zero transmissions from the HIV positive partner when that partner was taking ART and virally suppressed. This study was seminal because it included both same-sex and opposite-sex couples. Most recently, results from the Opposites Attract Study, presented at the 2017 International AIDS Society Conference on HIV Science in Paris, found no HIV transmission among more than 350 serodiscordant same-sex couples, even when couples participating in the study reported nearly 17,000 instances of anal sex without a condom over four years.

Concerned that many people living with HIV, medical providers, and those at potential risk of acquiring HIV are not aware that ART treatment is a highly effective HIV prevention strategy and that this information could remain locked in the research community, the U=U campaign (“Undetectable = Untransmittable”) was launched. The campaign works to change the way organizations and people talk about HIV and infectiousness by underscoring that when a person living with HIV is on effective treatment and has an undetectable viral load, they will not transmit HIV to sexual partners. With that in mind, “U=U is a message of freedom and home. It is an unprecedented opportunity to improve lives of people living with HIV, dismantle HIV stigma, and improve treatment uptake and adherence.”

The advances reflected in the U=U campaign also have implications for criminal justice. There is a concern that if HIV criminal reform focuses solely on changing laws so that those who are virally suppressed are protected, that approach would continue to leave people of color, LGBT people, sex workers, and others subject to unjust criminal prosecution. The consensus statement notes a legal defense could include showing that low viral load and related non-infectiousness, but it also warns “we must be careful to avoid giving policy makers the impression that, absent treatment or an undetectable viral load, prosecution of PLHIV is warranted.” At bottom, the consensus statement points out “the two biggest problems with almost all HIV criminal laws and prosecutions are that 1) they focus on HIV disclosure rather than on whether the PLHIV had an intent to do harm; and 2) HIV laws’ felony punishment and severe sentences treat any risk of HIV infection as the equivalent of murder or manslaughter.” To respond to these two problems, the most pressing responsibility in HIV criminal law reform is to advocate for the following legal principles: 1) conviction must require proof that the person intended to do harm; and 2) the degree of punishment must be closely related to the level of injury.

The consensus statement is an important resource to aid advocates in pursuing criminal law reform without creating unintended negative consequences for people living with HIV. It also includes frequently asked questions with answers that further explore issues facing advocates as well as links to additional resources.

Posted in Uncategorized; Tagged: , , .


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The views reflected in this blog are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.

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