We the regulators

30/08/2003

Last fortnight, I said I did not know how the two Cola giants would respond to our study on pesticides in soft drinks. Now I do. I have learnt how global corporations deal with public concerns.

Hours after we released our report, PepsiCo and Coca-Cola convened a press conference to condemn our report and question the credibility of our laboratory. Then followed a public relations blitz. The strategy was simple: denigrate the report, the institution and the individuals who work there; in the process, hope the findings get rubbished. This wasn't surprising, new and certainly not very imaginative. It was as predictable as corporate strategies can be.

But what is new, at least for India, is an emerging line of attack to question the "right" of a non-governmental organisation to raise public issues. Pepsi has filed a writ petition in the court, which takes the view that the Centre for Science and Environment (CSE) is "a non-governmental organisation having no legal authority or recognition" and therefore, "the report prepared by a private person does not have any sanctity in law and could not have been binding upon any person, much less the governmental authorities." In its writ, Pepsi then asks for directions from the court to stop CSE from publishing statements and to withdraw materials from circulation and from its website. 'Gag' the institution. 'Suppress' its findings.

Building on this argument, the Pepsi chief has written articles in newspapers, saying that the study is "another instance where our democracy and constitutional freedom of speech is being misused" and that there is a need to focus on the code of conduct of NGOs.

The Pepsi chief is only practising what is a tried and tested strategy in the US. Such lawsuits, where the rights of individuals or institutions to bring matters to the notice of the public are questioned, are common there. Common enough to be given a name: Strategic Lawsuits Against Public Participation, a SLAPP for short. A typical SLAPP case in the US involves business operations suing individual citizens or small non-profit groups because they have gone public with their views or tried to influence government action.

SLAPP amounts to silencing people into submission. They are not just "intimidation lawsuits". They question the rights of individuals and institutions to speak out on a public issue, and to communicate their views to government officials. These cases have become a fine art. When TV show host Oprah Winfrey discussed the mad-cow disease in one episode and said that the fears of the disease "just stopped me cold from eating another burger", she was sued for defaming cattle. It took her four years and over US $1 million to be vindicated in court. Similarly, when a resident of Rhode Island wrote a letter complaining about contamination of local drinking water from a nearby landfill, she spent five years defending herself against the company, which charged her with "defamation" and "interference with prospective business contracts."

Industry likes this strategy. It argues the environmental movement is imposing avoidable costs on the consumer. Therefore, industry believes, there should be laws allowing corporations to effectively sue, chastise and punish their enemies. Importing such a strategy worries me.

I say this because this issue is not about Pepsi and Coke or even pesticides in their soft drinks per se. It is about the functioning of effective mechanisms to manage industrial growth and its toxic fallouts. From everything we see around us, it is clear to me that increased private sector participation will need more governance, not less. More importantly, we will need more democracy, not less. But government will have to be reengineered so that its regulatory role strengthens enormously. In this case, the norms for this industry are weak and meaningless. Government has more or less abdicated its role to safeguard public health.

More importantly, we will need countervailing power to the growing influence of business. This requires democratic rights, and institutions that can defend or advocate these rights - from courts to civil society institutions. Business calls the shots and civil society is weak, if engaged, and mostly powerless, if not. An effective system will require a much stronger civil society armed with the best of science and knowledge to be able to question, critique and advocate.

In this case, evidence shows multinational companies have stooped low to follow non-existent Indian regulations, and not the global standards they claim to. I say this not only because we found differences between bottles manufactured in India and in the US, but also because the companies just don't have data to show that they have been regularly monitoring their products for pesticide content. They did not check because they did not need to, in India.

They know that this is their vulnerable spot. If this case establishes the double-standards of multinational corporations then it will incumbent on governments - across the developing world - to spruce up and set national standards to regulate this "food" industry. It will force the industry to become accountable to national governments and to the public.

They know that most governments are weak and apathetic. But they worry about public pressure, built on credible information. It could help to build a regulatory spine in the interest of all. This, big corporations dread most of all. We have learnt fast.

- Sunita Narain

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