by Tom Farley
In the end, the mayor approved only the proposal on parks and beaches. Although he could have enforced the smoke-free policy as a parks department rule, he agreed to propose it as a city law in a nod to the Speaker Christine Quinn, who liked the idea and wanted to take it through the City Council.
• • •
Just before that meeting, the tobacco companies fired their salvo against the in-store warning signs. Anne Pearson needn’t have worried that they weren’t taking the issue seriously. Indeed, they hated it. The suit rode in on a battalion of lawyers, as each of the big three tobacco companies bankrolled its own firm—Greenberg Traurig for Lorillard; Gibson, Dunn & Crutcher for Philip Morris; and Jones Day for R.J. Reynolds. Another firm—Cahill, Gordon & Reindel—represented the convenience stores. At the head of this army stood celebrity First Amendment lawyer Floyd Abrams, who was also representing the tobacco companies against the FDA’s rule to put graphic warnings on cigarette packs. The companies argued that the warning signs were preempted by federal law that governed labeling of cigarette packs. They said the rule trampled on their First Amendment guarantee of free speech. And because of the Constitution’s separation of powers, the Board of Health didn’t have the authority to write the rule in the first place. Our attempt to warn people to avoid a drug that killed one-third of its users, in their considered view, threatened the very foundations of our democracy.
12
“We were outgunned.”
Throughout the 2000s, obesity continued to swell as a slow-moving crisis. By 2008, 3.4 million of the city’s 6 million adults were overweight or obese, and more than half a million had diabetes. Although no one is labeled as having died from excess body fat, the health department’s epidemiologists estimated that the obesity in the city was responsible for at least 5,000 deaths a year. That was not as many as were killed by smoking, but it was close. Imagine the panic in the streets, I thought, if a virus were killing that many people.
Despite our efforts, we had no reason to think we were changing what New Yorkers ate. Not long after I started, Lynn Silver’s team was wrapping up an evaluation of the calorie labeling on restaurant menu boards. Before and after the labels went up, her group had surveyed more than 11,000 customers as they exited 275 locations of the city’s thirteen biggest chains. They found big increases in the proportion of people who noticed the calorie labels (from 11 to 56 percent) and in those who said they used them (from 3 to 15 percent), but mixed results on what people actually bought. In four chains—McDonald’s, KFC, Starbucks, and Au Bon Pain—people walked away with 20 to 80 fewer calories in their food. In several chains the calories they purchased didn’t change.
But in one chain—Subway—the number of calories purchased increased. Subway was unique. Even before the law went into effect, the chain had voluntarily put stickers with calorie counts on its display cases. And then in between the two data-collection waves, Subway had unleashed its “$5 footlong” sandwich promotion. Between the two surveys, the proportion of customers who bought twelve-inch sandwiches jumped from 28 to 73 percent.
Shortly after Silver showed these results at a scientific meeting, a group of economists published a study using data from the computerized cash registers at Starbucks. Customers at the coffee chain typically didn’t buy a lot of calories; still, the researchers found that after the calorie labels went up, the customers bought 14 percent fewer. Because they had data on all the transactions, the researchers could also answer a crucial question that we couldn’t: Starbucks did not see any fall in its sales overall. Its customers spent the same money on lower-calorie foods and drinks. So the calorie counts were helping some people buy fewer calories, but the effect was small, varied by chain, and could be overwhelmed if the restaurants marketed unhealthy foods aggressively.
After the years of painstaking work designing the calorie-label rule and the battle scars from two lawsuits, we found that conclusion disappointing. We all still believed that the labels were worth spreading nationally. The numbers helped some people, they raised red flags over particularly hefty foods, and maybe over time they would shame the restaurants into shrinking their giant items, or at least slowing the portion arms race. But on their own they weren’t going to make a dent in the obesity epidemic. We needed better solutions. For Lynn Silver, the studies “highlighted that we had to go beyond information interventions probably into actual regulation of the practices of restaurants.”
In 2009 we didn’t have specific ideas on regulating restaurants, so we came back to sugary drinks. We had hopes for taking a second swing at a soda tax. And soon after I started, Geoff Cowley wanted to show me some counter-ads that had grown out of Mary Bassett’s junk food group.
When we had first tried to rally support for a sugary drink tax in neighborhoods that were hard hit by obesity, we had met stiff resistance. Everyone knew that French fries and cupcakes made you fat, but soda? People didn’t see sugary drinks as a health problem, so they saw a soda tax as just government greed. When we first contemplated sugary drink counter-ads, we meant them to persuade people to drink less soda. Now that the tax idea was in the air, though, we realized that ads might build political support for it, too.
In coming up with good counter-ads, we faced a problem with deep roots. Like cigarettes, soda isn’t just sold—it’s marketed. Its brilliant advertising, about $1 billion a year in Coke polar bears and Pepsi pop stars, overwhelms our televisions, sports stadiums, movie theaters, delis, bodegas, pizza joints, and snack counters. Coke and Pepsi reinforce those powerful ads by inserting their sodas into movies and TV shows and by sponsoring museums, parks, sports teams, and the Olympics. They put bottles in Americans’ hands with all of the other P’s of marketing: clever packaging, tempting prices, and in-your-face placement.
The marketing that Americans have been subjected to—over generations—has welded an intense emotional attachment to the Coke and Pepsi brands. When a father takes his son on his sixth birthday to see his first Major League baseball game and buys the boy a hot dog and a Coke, it creates a golden memory. For the rest of that boy’s life, when he wants a little emotional lift, he will grab a Coke. The marketing geniuses in Atlanta know that and have been playing variations on that theme for a century. Coke is Santa Claus, Coke is happiness, Coke is America. And Pepsi is youth, fun, and excitement. To tell New Yorkers that Coke and Pepsi meant blubber and diabetes would provoke ugly emotions.
Jeffrey Escoffier had ordered up some anti-sugary-drink ads from Jose Bandujo, who ran an advertising agency that was on contract with the department. “Don’t worry if it’s tasteful or anything,” he later remembered telling Bandujo. “Just do whatever you can so that it’s strong and a hard-hitting thing on soda.” Then Escoffier tested them with focus groups of soda drinkers, some of whom were overweight.
The problem we faced showed up immediately. In the warm-up, the participants commented that they didn’t think of sugary drinks as healthy, but they didn’t see them as truly unhealthy either. “Anything in moderation is okay,” said one woman. Yeah, said another, drinking one or two sodas a day wasn’t a problem. In fact, an additional one or two sodas every day might be enough to drive the entire obesity epidemic.
The moderator passed around several sets of ads, face down, then asked the participants to turn them over one set a time. One pair of ads made our problem even clearer. The images showed morbidly obese men in stained T-shirts, guzzling soda from 2-liter bottles, and the text said that soda “just dumps sugar and calories into your system. This can lead to obesity, high blood pressure, and diabetes.” The participants refused to believe it. Bandujo remembered, “Immediately people said, ‘He didn’t get that fat from just soda. He got fat from McDonald’s. He got fat from fast food. He got fat from other stuff.’” They were also convinced that people as fat as those in the ads must just have “bad genes.”
Other ads proved that we were in treacherous emotional waters. One set mocked soda brands, showing glasses or bottles labeled “Dr. Diabe
tes” and “Mountain Don’t.” The participants were offended on behalf of the soda companies. “It was like we were talking bad about their mother,” said Beth Kilgore. “And they even got their legal hat on,” said Bandujo. “‘Oh, are you allowed to do that?’ Poor Mountain Dew!”
Another group of ads mixed a tough message with a touch of humor. A woman’s huge buttocks were labeled “Soda Can.” A guy’s gut (going after “sports drinks”) was branded “Sports Section.”
When a group of women turned over the pictures, there was a flutter of nervous laughter. “That’s what my stomach looks like.” “I’m like, wow, I could look like this.” “This is really offensive because it is real.”
One ad from this group showed a little girl’s fat stomach pushing out her bathing suit, with the label “Juice Container.” This one was too painful even to laugh at. “I felt sorry for her,” one man said sadly. “It’s cruel to show kids.”
We couldn’t run ads like those. Even if they worked, they would spark a firestorm among overweight New Yorkers and light up the tabloids.
Bandujo’s team had come up with another idea, one that went directly at people’s disbelief. “People could easily rationalize in their head that when you eat a cupcake, it turns to fat,” he said. “When you eat a hot dog, it turns to fat. . . . People weren’t thinking of a liquid turning into a solid—fat!” The ad just showed a can of soda being poured into a glass, but as the soda fell, it turned into yellowish globules of fat laced with thin red blood vessels. In big letters beneath, the ad asked “Are you pouring on the pounds?”
Among women, the ad worked beautifully. One said, “I can’t even look at this.” Another said, “It has my stomach churning.” She thought she might vomit right then. Another said, “I would put it on my refrigerator” to remind her not to drink soda. But the men shrugged; to them, the fat globules weren’t disgusting enough. One man said helpfully, “Maybe if you showed somebody drinking it . . .”
Still, “revulsion was the most effective approach,” the focus group summary report read. “What we’ve learned in public health is that negative is very good,” said Bandujo. “Negative is what makes them think.”
I liked the soda-turning-into-fat ads instantly and got approval to run them. We posted three versions on the subways showing different beverages: a cola (in a plastic bottle with a red label), a lime green sports drink (in a plastic bottle with an orange cap), and an iced tea (in a glass bottle with a yellow label). None of them had any brand names or logos. The headline “ARE YOU POURING ON THE POUNDS?” was now followed by “Don’t drink yourself fat. Cut back on soda and other sugary beverages. Go with water, seltzer, or low-fat milk instead.”
The subway ads stirred up just the kind of chatter that we wanted. The Times story said that the health department had “opened a new front in their struggle against high-calorie beverages.” Their editors wrote, “The city’s health department has gone the yuck route, which officials say worked well with cigarette ads. . . . Smoking in the city went down after television commercials showed a man with a hole in his throat and a woman with missing fingers.” The American Beverage Association, calling the campaign “over the top,” tried to divert attention to everything else. The ads would “undermine meaningful efforts to educate people about how to maintain a healthy weight by balancing calories consumed from all foods and beverages with calories burned through exercise.”
But Jose Bandujo wasn’t finished. That focus group participant’s suggestion had given him an idea. He and a producer hired an acting student, sent colleagues to the grocery store to buy the “grossest stuff we could think of to make this yellowish orange-ish chunky concoction,” and turned on their video cameras. In the video, backed up by campy music, the actor pops open a can of soda to pour it into a glass, but what plops into the glass is globules of fat. Then the actor tips up the glass and gulps it down, the fat blobs overflowing onto his cheeks and down his chin. Words drop onto the screen to the sounds of deep echoing booms: “DON’T DRINK YOURSELF FAT.” Then, holding up the glass of fat as if to propose a toast, the young man turns to the camera, smiles, and gives a mischievous wink.
When I saw it, I burst out laughing. Our cigarette ads had needed a dead-serious tone. But people weren’t fully ready to hear that sugary drinks made you sick. This ad managed to deliver that tough message with a smirk and a punch line. I couldn’t wait to release it.
But then we got stuck on the words that would appear on the screen. At first, they were “Drinking a can of soda is like drinking 150 calories of fat.” We couldn’t say that, I told my staff. The problem with soda was the sugar, and metabolically, sugar wasn’t like fat. Eating a giant blob of fat was bad for you, but in a different way. The point about sugary drinks, I insisted, was not that they were like fat but that they made you fat. The words had to be about weight gain. But how much weight? After a few days of haggling with my team over e-mail about the tagline, I settled on a number and included a flexible word, ending up with “Drinking 1 can of soda a day . . . can make you 10 pounds fatter a year.” I also suggested adding a small disclaimer like “assuming no other changes in diet or physical activity.” But my staff never added the disclaimer, and I didn’t notice that they hadn’t.
We had no money to run the ad on television, so we just posted Man Drinking Fat on YouTube and sent out a press release. The ad incited a swarm of outraged “sharing.” “The best thing you can do on a viral video is to get some comments like ‘This is the grossest thing ever,’” said Bandujo. “Everybody needs to click on that to see what it is.” In its first week online, Man Drinking Fat got nearly a half million views and a piece of Jay Leno’s monologue. With all the outrage, the ad was doing exactly what we wanted—getting people to talk about how sugary drinks make you fat.
• • •
After we got past the election, I met with Mayor Bloomberg to propose a new push for a soda tax. I had heard that the Greater New York Hospital Association and the hospital workers’ union were planning to lobby hard for a soda tax in the next legislative session, and I wanted to put the city’s political power behind it. By then we had new estimates from an academic expert that a 1-cent-per-ounce tax might reduce sales by 8 percent, stop 60,000 people in New York City from becoming obese, and prevent 7,500 from developing diabetes.
As a businessman, Bloomberg instinctively believed that raising the price was the surest way to cut sales of anything. With the state still in a budget crisis, the legislature would be hungry for money. He thought we should present a simple trade-off: we could have a soda tax that generated a billion dollars a year and save the jobs of thousands of teachers or cops, or we could skip the tax and lay them off.
In January 2010, Governor David Paterson did propose another soda tax, along with a dollar-per-pack increase in the state cigarette tax, as part of a package to fill the state’s projected deficit of $7.4 billion. Even with the soda tax and the higher cigarette tax, the governor proposed big spending cuts, slashing $1.1 billion in funding for schools and $900 million in payments to hospitals, nursing homes, and home care agencies.
This time the governor got the soda tax right. His new proposal was a 1-cent-per-ounce excise tax, with the revenue paying for health care. The sugary drink distributors would pay the tax based on how much they shipped. Everyone assumed—from experience with cigarette taxes—that the distributors would pass the cost on to retailers, who would then raise the prices for sugary drinks at stores and restaurants. The proposal was much better than Paterson’s sales tax idea the year before. The tax would be simpler to collect because there weren’t many distributors in the state. Because it would increase the price seen by consumers, the tax would cut sales more. The tax would grow as the volume of soda grew, encouraging people to buy less. Channeling the tax revenue to health care would help get voters behind it. One poll found that while only 47 percent of voters supported an “obesity tax,” 76 percent supported “a tax on sugary soft drinks to balance the city budge
t.” In a second poll, 76 percent preferred a soda tax to cuts in health care.
A week later Bloomberg jumped on board. He said to the legislature, “Today, more than half the residents of New York City, and nearly forty percent of our public school students, are overweight,” which put them “dangerously on track to contracting diabetes” and other health problems. So “it’s in the interest of us all to prevent that from happening now—and the surest pathway to changing behavior is through the wallet.”
The year before we had been caught off guard, but this time we thought we had a good chance of passing the tax. All pulling in the same direction were the governor, the mayor, the hospitals, the union of hospital workers, and a charged-up coalition of health organizations, including the American Heart Association, the American Cancer Society, and the American Diabetes Association. Each played a part. State health commissioner Richard Daines wrote op-eds, met with editorial boards, and barnstormed the state, haranguing anyone willing to listen about the soda tax’s “triple play”: better health, less need for treatment, more money for health care. The hospitals were among the biggest employers in the state, and their 1199 SEIU union supported political campaigns, so they both had clout. Together with the health advocacy coalition, they put in more than 7,000 phone calls to legislators, met with more than a hundred of them, held a rally with 250 health care workers at the capitol, and held symbolic “soda buy-back” events around the state. They also ran television ads that featured doctors and nutritionists talking about the damage obesity was causing in kids and the link to sugary drinks. “It’s an epidemic, and it’s preventable,” one nutritionist says. “It’s a matter of life and death if action is not taken,” says another. The ad ends, “Tell Albany to pass the soda tax. Make New York healthier.”
