Jane McCredie: Legal slap

A STUDY of fast-food advertising directed at children would seem like grist to the mill for a major international paediatrics journal, especially when the research appears to show companies disregarding their own industry guidelines.

But when researchers seek to name and shame big companies, things can get complicated.

An article published last week in Pediatrics details what happened at that journal when researchers submitted a paper on advertisements for McDonald’s and Burger King, two companies which at the time of the study were responsible for 99% of fast-food television advertising directed at children in the US.

The investigators found the companies had failed to comply with industry guidelines requiring them to focus the child’s attention primarily on the product being advertised rather than other incentives such as toy giveaways.

In fact, fewer than half of the children shown the ads realised they were actually about food, suggesting they had failed to meet requirements that children’s advertising not be deceptive.

The paper was being considered for publication by Pediatrics when the journal’s publisher, the American Academy of Pediatrics, asked that company names be removed for fear of a defamation suit.

The authors refused and withdrew the manuscript, which has since been published — with company names — in PLOS One.

So what happened here? Could the fast-food chains have won if they had sued over properly conducted scientific research?

The authors of the follow-up article in Pediatrics (including one of the authors of the original withdrawn paper, paediatrician Dr James Sargent) argue not, citing legal precedents from the US and the UK.

One of those cases prompted an appeals judge to declare plaintiffs could not silence those who held different views, no matter how adverse to their interests, simply by filing suit and crying “character assassination!”.

“Scientific controversies must be settled by the methods of science rather than by the methods of litigation”, the judgment said. “More papers, more discussion, better data, and more satisfactory models — not larger awards of damages — mark the path toward superior understanding of the world around us.”

Similarly, when the British Chiropractic Association (BCA) sued scientist and writer Dr Simon Singh for saying they promoted bogus treatments for conditions ranging from colic to asthma, the court of appeal found for Dr Singh, expressing concerns the law suit might have deterred others from expressing opinions on the subject.

“… this litigation has almost certainly had a chilling effect on public debate which might otherwise have assisted potential patients to make informed choices about the possible use of chiropractic”, the judgment said. “… the unhappy impression has been created that this is an endeavour by the BCA to silence one of its critics”.

The desire of corporate or other interests to silence critics through legal means has spawned an acronym all of its own: SLAPP, or Strategic Lawsuits Against Public Participation.

Specific strategies will vary depending on the legal framework in any given jurisdiction, but globally SLAPPs may include suits for defamation, conspiracy, nuisance, damage to business and so on. They may target journals, the media, individual writers, or community protestors.

Although no action has, as far as I’m aware, been initiated in the current case, McDonald’s has in the past sued UK activists in the so-called McLibel case as well as people protesting against its now-built outlet at Tecoma near Melbourne.

“Companies initiate baseless SLAPPs to limit free speech that criticizes their practices”, Dr Sargent and colleagues write in Pediatrics. “They are confident their targets, fearful of the costs and trouble of litigation, will back down or settle.”

Because SLAPPs rarely go to trial, and journals may pre-emptively self-censor for fear of them, it’s impossible to know how big the “libel chill” problem is, the authors write, but they suggest there might be some lessons journals could learn from big business.

“Modern corporations go to great lengths to protect their free speech rights to market and advertise their products; medical publishers should do the same for research that scrutinizes the ill effects of those products on human health.”

The editors of Pediatrics may not have done that in this case, but they should be congratulated for going public on the issue now.
 

Jane McCredie is a Sydney-based science and medicine writer.