On another occasion, Koop testified in defense of latex gloves, which have been linked to life-threatening allergies. Latex allergies affect roughly 3 percent of the general population and upward of 10 percent of health care workers who are regularly exposed through the use of latex gloves and other medical supplies. An estimated 200,000 nurses have developed latex allergies, which can be disabling and even deadly. Alternatives to latex exist and are gradually being adopted by the health care industry, but Koop told Congress that latex glove concerns are “borderline hysteria.” He also claimed—falsely, as he later discovered—that a study undercutting concerns about latex gloves had been conducted by the U.S. Centers for Disease Control and Prevention. In fact, the study he cited had been sponsored by a company that makes the gloves. And Koop had failed to disclose the fact that two years previously another maker of latex gloves had paid him a reported $656,250 in consulting fees to serve as a “spokesman for the company.”82
“What this long admired and respected man has done in taking money from a glove manufacturer and then speaking out on its behalf is wrong,” said Susan Wilburn, senior specialist in occupational safety and health for the American Nurses Association.83 Another ANA representative, Michelle Nawar, noted that latex allergy “is a very serious disease” that “can be a debilitating, career-ending illness.” In fact, five deaths have been reported from using latex gloves, four involving nurses.84
The conflicts of interest involving Frederick Seitz are even more telling. Shortly before his retirement from Rockefeller University in 1979, he went to work as a “permanent consultant” to the R. J. Reynolds tobacco company, a hiring that was deliberately not publicized.85 The tobacco industry eagerly traded on Seitz’s reputation, even though R. J. Reynolds CEO William Hobbs privately advised executives at Philip Morris in 1989 that Seitz was “quite elderly and not sufficiently rational to offer advice.”86 In June 1993, the CNN news network ran a report citing claims by Philip Morris that “prominent scientists privately agree” with its opinion of the EPA risk assessment of secondhand smoke. “We asked for specifics, promising anonymity if necessary,” stated CNN correspondent Steve Young. “The only name Philip Morris provided was the former president of this prestigious institution, Rockefeller University, in New York.” Although CNN never discovered Seitz’s background as a tobacco industry consultant, he did not perform well in his role as third-party spokesperson. When Young called Seitz to ask directly if he had said that EPA’s report was based on flawed science, Seitz responded, “No, I have not.”
“You have not said that?” Young asked again.
“I have not said that, no,” Seitz replied.
“Well, why not?”
“I haven’t read it,” Seitz replied.87
That same month, however, Multinational Business Services (Jim Tozzi’s lobby shop and Steven Milloy’s former employer) reported to Philip Morris that it had “initiated discussions with Dr. Seitz of Rockefeller University to support MBS findings on ETS.”88 The following year, a report appeared with Seitz listed as the author, concluding that “there is no good scientific evidence that moderate passive inhalation of tobacco smoke is truly dangerous under normal circumstances.”89
The Legacy
Industry’s campaign to stigmatize environmental and consumer health advocates has left its mark and continues to influence public and media attitudes. In 1999, University of Pennsylvania professor Edward S. Herman surveyed 258 articles in mainstream newspapers that used the term “junk science” during the years 1996 through 1998. Only 8 percent of the articles used the term in reference to corporate-manipulated science. By contrast, 62 percent used the term “junk science” in reference to scientific arguments used by environmentalists, other corporate critics, or personal-injury lawyers engaged in suing corporations.90
“What’s starting to happen is that this term, ‘junk science,’ is being thrown around all the time,” says Lucinda Finley, a law professor from the State University of New York at Buffalo who specializes in product liability and women’s health. “People are calling scientists who disagree with them purveyors of ‘junk.’ But what we’re really talking about is a very normal process of scientific disagreement and give-and-take. Calling someone a ‘junk scientist’ is just a way of shutting them up.”91
Industry’s campaign against junk science has also provided a pretext for growing infringements on such basic constitutional rights as freedom of speech. With the publication of Galileo’s Revenge, Peter Huber took the concept of junk science out of the courtroom and introduced it to the mass media. Elizabeth Whelan’s revisionist campaign to rehabilitate the image of Alar transformed Huber’s concept into a weapon for attacking the media.
Huber charged that junk science was responsible for an avalanche of frivolous lawsuits, “The incentives for the lawyer today are simple and compelling,” he wrote. “If the consensus in the scientific community is that a hazard is real and substantial, the trial bar will trumpet that consensus to support demands for compensation and punishment. If the consensus is that the hazard is imaginary or trivial, the bar will brush it aside, and dredge up experts from the fringe to swear otherwise. . . . Junk science, to put things bluntly, has become a very profitable business. . . . Costly towers of litigation are being erected on the soft, ever-shifting sands of junk science.”92
Once junk science was redefined as a media problem, however, organizations like ACSH began to argue that what society needed was more lawsuits—lawsuits aimed not at corporations that make dangerous products, but at citizens who question their safety. Writer Tom Holt posed this argument directly in ACSH’s quarterly magazine, Priorities. Holt’s essay was titled “Could Lawsuits Be the Cure for Junk Science?” It began with a review of the Alar saga, complaining bitterly that existing libel law “has been a major stumbling block to the progress of a lawsuit brought by the Washington Apple Growers against the Natural Resources Defense Council, perpetrators of the Alar scare. The growers initially filed suit in Yakima County (WA) Superior Court; but . . . the growers lost their case.” Fortunately, “agribusiness is now fighting back, shepherding what are known as ‘agricultural product disparagement laws’ through state legislatures.”93
Agricultural product disparagement laws were designed to rewrite the rules of evidence so that future lawsuits against food industry critics would have a better chance of winning in court. In the years since Alar hit the headlines, cries of “never again” from the food industry prompted legislatures to pass product disparagement laws in 13 states—Alabama, Arizona, Colorado, Florida, Georgia, Idaho, Louisiana, Mississippi, North Dakota, Ohio, Oklahoma, South Dakota, and Texas. The new legislation was designed to protect industry profits by preventing people from expressing opinions that might discourage consumers from buying particular foods. “An anti-disparagement law is needed because of incidents such as the Alar scare several years ago. Apple producers suffered substantial financial losses when people stopped eating apples,” argued the Ohio Farm Bureau in lobbying for the new law.94 According to Holt, the new laws placed “the onus on the disparaging activist, rather than under liability law, which would place the onus on the grower or manufacturer of the disparaged product.”95 Shifting the onus meant that instead of corporations being forced to prove their critics were wrong, food safety critics could be judged guilty in court unless they could prove what they had said was correct.
In 1996, one of the new state laws was used for the first time when Texas cattle ranchers sued TV talk show host Oprah Winfrey over remarks that one of her guests made regarding the dangers of mad cow disease. The case finally went to trial in 1998, culminating in a victory for Winfrey, after which a second group of cattle ranchers stepped forward and filed a similar lawsuit in a separate jurisdiction. The second lawsuit was finally dismissed in early 2000. By then, Winfrey had spent millions of dollars in attorney fees to defend herself. In Ohio, a consumer group ran afoul of an anti-disparagement law when it discovered that a local egg producer
was washing and repackaging old eggs for resale. “We interviewed over 40 employees who knew of the repackaging,” says Mark Finnegan, an attorney for the group. “We had workers tell us they found maggots in the eggs.” When the group went public with its finding, it got hit with a lawsuit and ran up large legal bills by the time the lawsuit was dropped.
Within the legal profession, this tactic of suing opponents into the ground is known as a “SLAPP suit”—a “strategic lawsuit against public participation.” Often, an actual victory in court is not necessary in order to achieve victory. The real goal is to force the defendant to run up huge legal bills. For someone who lacks Oprah Winfrey’s wealth, the costs of mounting a legal defense could literally mean financial bankruptcy, even if the case never goes to trial.
Friends and Enemies
Notwithstanding the differences between Steven Milloy and Elizabeth Whelan over the tobacco issue, they seem to have kissed and made up. An ACSH newsletter in early 2000 reported with satisfaction that ACSH had been mentioned favorably in several places on the Junk Science Home Page. “The top story on Junkscience.com for December 24 was ACSH’s ‘Love Canal: Health Hype vs. Health Fact,’ ” it stated.96
ACSH returned the favor by helping disseminate a November 1999 “scientific study” in which Milloy claimed to find dioxin in Ben & Jerry’s ice cream. By any reasonable standard of scientific inquiry, Milloy’s study, coauthored with the Cato Institute’s Michael Gough, would itself have to be condemned as junk science. Milloy has frequently attacked real scientists for using small sample sizes in their studies, but his own study relied on only a single sample of ice cream. He and Gough simply purchased a carton of Ben & Jerry’s in a grocery store and took it to a laboratory for analysis. Their results, written in the style of a scientific research paper, were never published in a peer-reviewed scientific journal and would have a hard time finding a reputable publisher, given that their statement of methodology consisted in its entirety of a single sentence. As for the finding that Ben & Jerry’s ice cream contains dioxin, this is hardly surprising, since dioxin accumulates in fatty tissues and is therefore common in dairy products. The real point of the study was to attack Ben & Jerry’s for “hypocrisy,” because the ice cream makers have been outspoken in calling for reforms that would reduce dioxin production and use a dioxin-free process to manufacture the cardboard cartons in which their product is packaged.
It would be more accurate to characterize the Milloy-Gough study as a publicity stunt than as scientific research. ACSH, however, loved it. “Ben & Jerry’s might be described as a chemically holier-than-thou company,” stated an editorial on the ACSH website. “So it was more than a bit ironic when two investigators . . . found that the product contained traces of dioxin. . . . Ben & Jerry’s has been caught in its own game.”97 The ACSH newsletter boasted subsequently that “the ACSH editorial on Ben & Jerry’s ice cream received more than 700 hits over a 36-hour period.”98
The cozy relationship between ACSH and Milloy stands in marked contrast with their hostile relationship to other, reputable mainstream consumer and health groups such as the Center for Science in the Public Interest (CSPI). Milloy calls CSPI’s Nutrition Action Health Letter a “rag” and accuses the organization of “doing its best to scare Americans about food.” Whelan likewise calls CSPI “the nation’s leading food terrorist group” for its warnings about excessive fat, sugar, and artificial additives in restaurant and snack foods. In one funding appeal to the Kellogg Company, she boasted of her organization’s lengthy history of combat with CSPI executive director Michael Jacobson over food issues. “We’ve been there to counter CSPI’s claims as he has attacked virtually every aspect of modern-day food technology, whether it be caffeine, sugar, dietary fiber, the fat-replacer Olestra, dietary fat and cholesterol, moderate consumption of alcohol—or whatever other alleged carcinogen, toxin, or ‘killer’ ingredient his organization has singled out for indictment,” she stated.
Whelan has long rankled at charges that ACSH is beholden to the corporations that pay its bills. “I’ve been called a paid liar for industry so many times, I’ve lost count,” she complained in 1997. She frequently cites her stand on tobacco as evidence of her personal integrity and has responded to criticisms of her organization’s reliance on industry funding by insinuating that prominent environmental and consumer groups are themselves beholden to tobacco money. “My counterparts, why aren’t they quizzed as to funding?” she asked Washington Post reporter Howard Kurtz, adding that the Natural Resources Defense Council and CSPI receive “substantial funding from the cigarette families, including R. J. Reynolds family foundation. . . . Who knows where else they get their funding? They don’t publish their funding list on a regular basis.”
When Kurtz investigated these allegations, however, he found that unlike ACSH, the NRDC and CSPI do disclose their institutional funding sources. Whelan’s claim that NRDC and CSPI take tobacco money is based on the fact that both organizations have received some funding from the Mary Reynolds Babcock Foundation, which is run by second-and third-generation heirs of tobacco money who choose to give their money to liberal causes.
But if CSPI’s several-degrees-of-separation links to tobacco money are worth mentioning, it seems only fair to note that Whelan serves on the advisory council of Consumer Alert, a tobacco-financed front group for industry. Founded by former Bush administration chief of staff John Sununu, Consumer Alert is funded by Philip Morris along with the Coors Company, the Beer Institute, Monsanto, the Chemical Manufacturers Association, Chevron, Exxon, American Cyanamid, and a host of other usual corporate sponsors. In 1993, when the Clinton administration proposed raising cigarette taxes to fund its health plan, Consumer Alert worked closely with Philip Morris to attack the plan. “The antithesis of the Nader/Citizen Action brand of ‘consumer defense,’ Consumer Alert has worked with us in the promotion of the concept that the Clinton plan is anti-consumer,” stated a Philip Morris strategy document. “Via continuation of their forums, position papers and op-eds, we are discussing a further media blitz for early Spring.”99
In fact, ACSH has numerous ties, through its board of directors and advisory board, to many of the conservative, tobacco-funded organizations that Whelan accuses of “blurred vision” on tobacco. The ACSH advisory board includes representatives of the Hudson Institute, the Progress & Freedom Foundation and the Cato Institute, all of which receive funding from the tobacco industry and oppose efforts to regulate tobacco. Priorities magazine also repeatedly publishes articles from people affiliated with these and other pro-tobacco think tanks, including the Competitive Enterprise Institute and the Capital Research Center (which published two books in the 1990s denying that direct smoking causes cancer).100 The 17-member ACSH board of directors includes Henry Miller, a former FDA official now at the Hoover Institution, who regularly grinds an ax against what he considers the FDA’s “extraordinarily burdensome regulations” regarding genetically engineered foods and new drugs. In 1996, Miller also editorialized against the FDA’s proposal to regulate tobacco. “The FDA’s anti-tobacco initiative . . . has not been without its own costs to American consumers and taxpayers,” he stated, describing FDA commissioner David Kessler as “personally consumed by this single issue.”
Priorities has also published the work of Jacob Sullum, the Reason magazine editor whose vociferous defense of the tobacco industry appeared in full-page newspaper ads paid for by Philip Morris and R. J. Reynolds. Whelan is well aware of Sullum’s track record as a tobacco defender, stating on one occasion that he “defies the now nearly unanimous view of scientists that ETS can be harmful.”101 In 1996, however, an essay by Sullum, titled “What the Doctor Orders,” appeared as a Priorities cover story. In it, Sullum attacked government efforts to curb smoking, alcohol and drug abuse, along with handgun controls and motorcycle helmet and seat-belt laws, calling them examples of the “fundamentally collectivist . . . aims of the public health movement.” In an accompanying letter, Whelan and ACSH D
irector of Public Health William London described Sullum’s essay as “the most important critique of governmental public health activities we have seen,” which “should be assigned reading in every school of public health.” The same issue of Priorities offered commentaries on the Sullum article from eight other writers, who mingled similar words of praise with occasional criticisms. To finish off this “symposium,” Sullum concluded with a final response in which he threw in an attack on Medicaid and Medicare for good measure.
What binds ACSH to thinkers like Milloy and Sullum is their common roots in a right-wing, “free market” ideology that overrides even Elizabeth Whelan’s awareness of tobacco’s dangers. These ideological underpinnings explain why Whelan blames the rest of the anti-tobacco movement for the failure of other conservatives to join them. “Discussions of tobacco and health policies are dominated almost exclusively by well-meaning social engineers and safety alarmists whose expansive agenda all but guarantees that many on the right reflexively gravitate to the opposite camp,” she argues. “In this way, liberal anti-smoking enthusiasts have poisoned the waters for the political right.”
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