…And objects can’t cast shadows in a vacuum! AAP & formula funding April Fool lawsuit threat

I’m not normally a big fan of April Fools jokes, since most seem to be about the pointless taunting of individuals for being “gullible”. For this one, though, I’m making an exception. Because I love a delicious defamation-allegation hijinks story, don’t you?

On April First, Dr Jay Gordon released a fake press release “from” the American Academy of Pediatrics, “announcing” that they were severing ties with the infant formula industry. In on the joke, a few people contacted the AAP, po-faced, to ask them if it was true. The AAP was Not Amused at Gordon’s political satire. They have issued a legal threat alleging defamation, and claiming that the satire caused “confusion and alarm”.

Part of the AAP’s webpage outlining some of their sponsors

AAP sponsor page screenshot - formula and pharmaceutical companies, mcdonald's, pepsi, etc

Background

Dr Jay Gordon is well known on Lactnet, as a passionate and knowledgeable breastfeeding advocate, and as a critic of the American Academy of Pediatrics (AAP)’s policy of accepting infant formula company funding.

The AAP accepts sponsorship from McDonald’s, the National Dairy Council, Abbott, Gerber, Mead Johnson, Nestle, Pepsi, Playtex, the Corn Products Association, and a variety of pharmaceutical and chemical companies. A lot of people find this funding approach to be unethical, since the AAP is, as they claim, “Dedicated to the health of all children”. (There seems to be an asterisk at the end of that statement on their website, but I can’t see a footnote anywhere.)

The AAP’s history of accepting formula and pharmaceutical funding for conferences, undermining the National Breastfeeding Awareness Campaign at the behest of formula companies, and allowing infant formula logos to be placed on A New Mother’s Guide To Breastfeeding are well documented. When the AAP was contacted by a group of their own pediatricians about the formula logo, they were uninterested, citing financial issues. The AAP also put out “Nestlé Nutrition Centre” advertisements in the header of Table of Contents emails for their flagship journal, Pediatrics.

These facts are not contested, to the best of my knowledge, by the organisation. Nor do they contest the fact that the feeding of breastmilk substitutes has harmed millions of children; again, this is very well documented. Every day, more than 4,000 babies die because they’re not breastfed. (Yes, some of these dead babies are even in America.)

The tide is turning – very slowly. Gradually, even doctors themselves are starting to realise that industry sponsorship is often unethical and inappropriate, and it has been shown over and over that it influences practice – though most doctors like to think they are mysteriously immune. Two weeks ago the Journal of the American Medical Association (JAMA) published “Professional Medical Associations and Their Relationships With Industry: A Proposal for Controlling Conflict of Interest“, co-signed by a large number of different doctors, including a past president of the AAP. The article identified areas of conflict of interest, and asserted that sacrifice is required by professional medical associations in order to maintain integrity. [JAMA. 2009;301(13):1367-1372]

The First Email

On April First, this post appeared on Lactnet, clearly marked as coming from Dr Jay Gordon.

Press Release
4/1/2009

American Academy of Pediatrics—For Immediate Release

Dr. David T. Tayloe, President of the American Academy of Pediatrics which represents 60,000 primary care pediatricians, pediatric medical subspecialists and pediatric surgical specialists has announced that it is severing all ties with the infant formula industry.

“This method of feeding substitution has harmed millions of children both in America and throughout the world and we pediatricians can no longer continue our relationship with the manufacturers of infant formula.” said Dr. Tayloe, who assumed the post of AAP President in October of 2008.

“Our alliance with the pharmaceutical industry is unethical. Our accepting millions of dollars and continuing to allow these business people to influence our policies while sponsoring our speakers, conferences and conventions is an ongoing embarrassment and we will end this ethical problem right now.”

“Further, I would like to apologize for our past mistakes involving the breastfeeding advertisement campaign and allowing the maker of Similac infant formula to print its corporate logo on the cover of a special edition of the academy’s book on breastfeeding.”

“Again, I can cannot express enough regret and can assure you that the AAP will immediately seek compliance with the WHO Code and will promote the Baby Friendly Hospital Initiative.”

Sincerely,

David T. Tayloe, MD, President of the American Academy of Pediatrics
April 1, 2009

A poster immediately responded, calling it the April Fools joke it obviously was.

The Second Email

Three hours later, this post appeared, also marked as coming from Jay Gordon. Excerpted:

We had all been warned about the April First Virus. […]
My sincere apologies to Dr. Tayloe and the AAP for implying that there could possibly be a shred of truth to my “severing ties with the formula industry” fantasy.

Jay Gordon, MD, FAAP, FABM, IBCLC Emeritus

The revised possible/fantasy but not real press release appears below and has nothing to do with the AAP or Dr. Tayloe.

Press Release
4/1/2009

American Academy of Pediatrics—For Immediate Release on April Fool’s Day

Dr. David T. Tayloe, President of the American Academy of Pediatrics which represents 60,000 primary care pediatricians, pediatric medical subspecialists and pediatric surgical specialists has announced that it is continuing ties with the infant formula industry.

“This method of feeding substitution is alleged and proven to have harmed millions of children both in America and throughout the world and, in spite of that proof pediatricians will continue our relationship with the manufacturers of infant formula.” said Dr. Tayloe, who assumed the post of AAP President in October of 2008..

“Our alliance with the pharmaceutical industry is deemed unethical by breastfeeding experts all over the world even by our own Committee on Breastfeeding. Our accepting millions of dollars and continuing to allow these business people to influence our policies while sponsoring our speakers, conferences and conventions is an ongoing embarrassment but we will not end this ethical problem because they support too many of our endeavors and doughnuts.”

“Further, I cannot apologize for our past mistakes involving the breastfeeding advertisement campaign and allowing the maker of Similac infant formula to print its corporate logo on the cover of a special edition of the academy’s book on breastfeeding.”

“Again, I will not express enough regret and can assure you that the AAP will continue to ignore the WHO Code and the Baby Friendly Hospital Initiative.”
Sincerely,

(NOT!) David T. Tayloe, MD, President of the American Academy of Pediatrics
April 1, 2009

[Note: Dr Gordon included a sexist “joke” in this email. He has since apologised for this: see comments 15 and 17. I have redacted it here, partly because of the apology, and to keep the post on topic. See also comment 19.]

The Community Response

I have done searches for the text of the first email, and it is debunked everywhere it is posted. No-one who’s paying attention believes that it’s real. A critical mass of folks knows damn well that powerful medical organisations aren’t about to clean up their acts any time soon, when it comes to raking in handouts from multinationals dedicated to making money at the expense of children and families.

Quite a few WHO Code advocates and critics of unethical sponsorship arrangements thought Gordon’s spoof was rather scathingly effective political satire. Some people decided to pretend to take it seriously, and take the piss out of the AAP by contacting them and asking about their “press release”, pressing them for information on their formula company funding plans. This plan was hatched on forums, and others joined in.

But wait. It gets better. Much, much better.

The AAP’s Response

Yesterday, a Lactnet listmum posted this [emphasis is mine].

The following letter has been received by the listmothers. We are publishing it to the list so there can be no doubt about what the AAP’s position is on Jay Gordon’s April Fool’s day joke published on this list. In addition, we are offering to post a statement on behalf of the AAP if they wish to further illuminate for Lactnet’s readers their stance on financial relationships with industry.

“Ladies and Gentlemen:

Our firm serves as legal counsel to the American Academy of Pediatrics (the “AAP”). We understand that one or more of you, as a founder, owner, facilitator or host of the Lactnet e-mail LISTSERV (R) have the ability to remove postings in that list.

On behalf of the AAP, we must insist that you immediately remove two items posted by Dr. Jay Gordon on April 1, 2009, copies of which are attached hereto for your reference. In the first posting, Dr. Gordon, without the knowledge or permission of the AAP, issued a fake press release purportedly sent on behalf of the AAP by Dr. David Tayloe, the AAP’s president. This posting contains patent misstatements of fact and misrepresents the AAP’s position, and it is defamatory. In addition, it misappropriates the AAP’s name and Dr. Tayloe’s name and has already caused confusion and alarm among your members, many of whom have contacted the AAP to inquire about the fake press release they believed to have been issued by the AAP. The second posting is a purported apology, which itself has caused further confusion and is wholly undercut by its obvious malicious tenor and unprofessional introductory comments.

As you may know, the AAP is among the largest and most prominent of the organizations that share its mission to attain optimal physical, mental and social health and well-being for all infants, children, adolescents and young adults. The AAP has a long standing policy promoting breastfeeding and providing support for nursing mothers. Its views regarding breastfeeding and other topics related to the well-being of children and adolescents are widely consulted, both the U.S., and internationally. While the AAP considers the open exchange of competing viewpoints and constructive criticism to be essential to the process of developing knowledge and advancing its mission, needless to say, the manner in which Dr. Gordon has chosen to express his views is legally unacceptable. Unfortunately, while Dr. Gordon’s posting may have been generated by a misguided sense of humor, its satirical nature was not readily apparent tot many readers who contacted the AAP to inquire about the press release purportedly issued by the AAP. Accordingly, to avoid further damage to the AAP and Dr. Tayloe, it will be essential for the original items and all copies on your server, wherever located, to be immediately taken out of circulation.

Please contact me if you have any questions.

Sincerely,
Nicole Finitzo
Schiff Hardin LLP”

The lawyers are claiming the first email was defamatory, not the second one. The FIRST. The one saying that the AAP was planning to start respecting United Nations/World Health Organisation minimum acceptable practice with regards to infant health promotion.

I do believe this is the very first time I’ve seen someone accused by a lawyer of defamation for claiming that an organisation was more ethical than it actually is.

And those people who didn’t comprehend that it was satire? AAP, it’s not the folks who contacted you who didn’t get it. Here, I have something for you:

handmirror

[post title refers to this.]

Followup: Check out what happened next, in this post: Political speech and PR cleanup: the AAP squirms at the DigitalNow conference



Categories: ethics & philosophy, health, law & order

Tags: , ,

30 replies

  1. I don’t know about US law – but can a corporation BE defamed? Or just an individual?
    Grendel’s last blog post..Coretto Cocktail

  2. I believe a corporation can be defamed – but when it comes to comment on a matter of public interest, the bar becomes a fair bit higher. The elements include:
    1. A false and defamatory statement concerning another;
    2. The unprivileged publication of the statement to a third party (that is, somebody other than the person defamed by the statement);
    3. If the defamatory matter is of public concern, fault amounting at least to negligence on the part of the publisher; and
    4. Damage to the plaintiff.
    In the case of public figures, “actual malice” must also be shown. Defences include truth, opinion, fair comment on a matter of public interest, and a pre-existing poor reputation of the plaintiff (among others). More on defenses to defamation suits here at expertlaw, including a section on “Why Commencing A Defamation Action Is Not Aways A Good Idea”.
    Over half of the states of the USA have enacted anti-SLAPP (Strategic Lawsuit Against Public Participation) legislation, according to Wikipedia. But which State this would be pursued in, if any, is anybody’s guess.
    ObDisclaimer: IANAL (I Am Not A Lawyer).

  3. I find it incredibly depressing that a pediatrician and breastfeeding advocate would make a “babiez are lucky! Cos boobies are hawt!” joke that derives its humor from sexualization of breastfeeding. Reducing a nursing mother to OMG SEXY BOOBIEZ = advocacy fail.

  4. Please submit this to the New York Times OpEd section. I was going to write something, but you’ve done a much better job. Now I’m contaminated by reading your excellent blog and would end up having to plagerize most of what you’ve written more eloquently here. Unless, I just quoted most of what you’ve written!

  5. I’m not sure what you’re talking about, wildstrawberry, but welcome to the blog. (Were you typing in the wrong window?)
    Susan: Wouldn’t have the first idea of how to go about submitting to the Times, but thank you for your kind words! You’re welcome to quote me anytime, attributed (obv).

  6. Here’s how:
    OP-ED/EDITORIAL
    For information on Op-Ed submissions, call (212) 556-1831 or send article to oped@nytimes.com.
    They suggest 650 words. With a bit of clipping you have the entire article. If you don’t do it I’m going to have to do lots of quoting with a few transitions in between!

  7. Thanks for the welcome, Lauredhel, and I should’ve been clearer. I was referring to the opening remarks of the 2nd email in which Dr. Gordon expresses a wish to return to infancy and be breastfed by Salma Hayek, Julia Roberts, and Halle Berry. (Because he’s a het dude who finds those women sexy! And he would like to touch their breasts! Just like their lucky, lucky babies do!). Honestly, I find it quite troubling that a pediatrician who cares for breastfeeding mothers and infants who is, by definition, obligated to turn a clinical gaze on a mother-infant dyad feels it appropriate to sexualize that gaze by making a joke about women he finds attractive and his desire to be in their babies’ place.
    As for the defamation and conflicts of interest, you pretty much covered it.🙂

  8. Ah, wildstrawberry, I passed over that, assuming he was taking the piss regarding recent Hayek (etc) fail with that bit as well. I can’t find any other evidence of that attitude in past posts by him, but I definitely could be wrong (and the target audience wouldn’t necessarily get that, either.)

  9. Like wildstrawberry, I’m hung up on Gordon’s self-proclaimed infantile fantasy of wanting suckle celebrity breasts and wanting them to fight over who gets to “nurse” him.
    I like satire. I love The Onion. In this case, however, I don’t think I would have picked up on how the law firm’s e-mail to delete the sham release because it makes the organization appear more ethical than it actually is seems to continue the prank. Pretty interesting.
    Jill– Unnecesarean’s last blog post..Cochrane Evidence Review: Move and Shorten First Stage of Labor

  10. Like wildstrawberry, I’m hung up on Gordon’s self-proclaimed infantile fantasy

    I don’t think it’s unimportant, but it’s not what this post is about – it is about systematic unethical sponsorship arrangements and legal threats to political speech. However, if anyone would like to blog about it, you’re welcome to place a link to your post here (or talk about it in the current Open Thread).

  11. Maybe I’m weird, but I didn’t find his celebrity comments offensive. They made me laugh.
    In my eyes, the primary purpose of the breast is to feed babies and young children. But in human beings, they’re also sexual objects. I think Gordon was just lightly recognizing their dual roll.
    What DOES offend me is when people make sexual comments while at the same time slamming woman who choose not to do premature weaning. You know…people saying Salma Hayak should stop nursing her very old 13 month old so they can have a turn at the breast. Not that anyone said those exact words, but I think some of the comments, regarding that incident, held those kinds of feelings.
    I personally think the April Fool’s Joke was awesome. The only thing that could have made it better for me is it NOT being a joke.
    Maybe one day….
    I can hope. Right?

  12. Thanks for posting, L.🙂

  13. I think the apparent asterisk at the end of ”Dedicated to the health of all children” is actually a trademark symbol. I guess they are only concerned with the interests of Children (TM) – patent pending

  14. I just did a quick back of the envelope calculation. If the AAP stopped taking all the funding from infant formula and feeding bottle companies listed on that sponsorship page, and instead covered the “shortfall” completely with dues from every pediatrician in the country, it would cost each pediatrician seventy-six cents. Even if I’m off by a couple of orders of magnitude, that’s not a huge sum.
    So given the pushback on this subject, I’m guessing there’s a huge amount of sponsorship that is invisible and undeclared to the public that the AAP is hooked on, and that that sponsorship is likely to be occurring in situations of high influence over pediatricians – conferences, freebies, “educational” material, and so on.

  15. wildstrawberry (and others) are right: That was a dumb way to start my second note. I was trying to humorously reference Ms.Hayek’s high profile and much-publicized cross-nursing of a very hungry child during her recent trip to Africa but I did a very poor job. I wish I could redact that part of my April Fool’s joke but I instead apologize for being so insensitive.
    Best,
    Thanks

  16. Well, I’ll be damned.
    If that’s a legit comment from Dr. Gordon, I am pretty impressed.
    I never made it over to the open thread to complain about it, but I was going to say something along the lines of how when Seth Myers made a similar joke on Saturday Night Live about Salma Hayek cross-nursing, I laughed. When a male that’s a lactivist of sorts made the same joke, I felt creeped out as a breastfeeding mom. It’s sort of a double standard.
    Back to the point of Lauredhel’s post, the dilemma of sponsorship and conflict of interest is something that I’ll be following up on. I am intrigued.
    Jill– Unnecesarean’s last blog post..New Spanish Commercial for Beds Features an Actual Birth

  17. My wife says that I should have a lock on my keyboard so that I can’t send emails or post after 11:00 PM. Apparently, poor taste can leak into the brain even the most committed breastfeeding supporter. (The auto correct wants me to say “breast-feeding” and that drives me crazy.)
    Jay

  18. If that’s a legit comment from Dr. Gordon, I am pretty impressed.

    I see no reason it shouldn’t be. Same ISP and all.
    Thanks, Jay.

  19. I’ve redacted the “joke” in the post with this note: “[Note: Dr Gordon included a sexist “joke” in this email. He has since apologised for this: see comments 15 and 17. I have excerpted them here, partly because of the apology, and to keep the post on topic. See also comment 19.]”
    In the interests of completeness and transparency, I reproduce it here:

    Unfortunately, it reached into my “fantasy folder” in the dark recesses of my hard drive and my mind. I am only grateful that it did not find the fantasy about my regressing to infancy and the fist fight about cross nursing among Salma Hayek, Julia Roberts, Halle Berry. That would have been really embarrassing.

    As it’s already been identified as a distraction, and apologised for, I’d like it if we could move on in this space. (As we have been doing.) Jay’s contact details are publicly available, if you wish to take it up further with him.

  20. I never wanted to be a lawyer/attorney because I never wanted to face the possibility of defending someone who is guilty. I do not envy AAP’s current lawyers’ position. They have achieved a tour de force in using technicalities to scorn an April’s fools joke that describes too accurately AAP’s deficiencies in their support of breastfeeding. If “misstatements of fact” apply to Jay Gordon’s first post, then Finitzo’s rebuttal has betrayed AAP with her own words. I just hope that AAP’s president Tayloe will see through the joke and make decisions that behoove his position.
    Otherwise, my friends, we still have a long campaign to wage.
    Lactationally yours,
    Nicole Bernshaw, IBCLC

  21. They have achieved a tour de force in using technicalities

    I don’t think they actually have achieved this. The presence of any provable defamation is very questionable, the supposed “confusion” by Lactnet subscribers doesn’t exist, there are several defences that could apply if necessary (and given that I expect this would be pursued in the USA, political speech is _heavily_ protected), and the CAN-SPAM Act connection (see the followup post) is just complete bullshit.

  22. Here’s how:
    OP-ED/EDITORIAL
    For information on Op-Ed submissions, call (212) 556-1831 or send article to oped@nytimes.com.

    Well, I was thinking about doing it (it’s school holidays and I haven’t got to it), but I can see you’ve done it already.
    Readers – Susan’s op ed is up at Huffington Post at this point. Unfortunately my name is repeatedly spelt incorrectly (“laurelhed”) and there’s no link to Hoyden, so currently only those with the best of Google-Fu can find their way here, but hopefully that will be fixed. Wonder where the story will go next?

  23. Dear all:
    I did not submit the article to the Huffington post and Jay did not ask my permission to do so. In fact, you are not supposed to submit to another “newspaper” for three days and there is a chance to “edit” if they accept the piece.
    Sincerely, Susan Burger

  24. He didn’t ask your permission? Blimey.
    Have emailed.

  25. Impulse control lacking. Foolish and thoughtless.
    All spelling corrected.
    Hoyden triple-linked to HuffPo’s millions. As it should be.
    Sorry, Lauredhel and Susan. (How strong a word is “blimey?”)
    Jay

  26. Jay:

    How strong a word is “blimey?”

    Almost-archaic BritEng, and not at all strong. More bemused/surprised than nastily condemnatory.
    Cheers!

  27. Dear Jay:
    The final task is to fix the reference to the NYTimes since that possibility is now a goner as they informed me this am. Since you didn’t actually ask me first, you make it clear that I gave you permission to post it after you read my now rejected NYTimes submission. I didn’t write it because you asked me to, I wrote it on my own. The three days on the NYTimes OpEd wait period was almost up since I submitted it on April 18th. It probably would have been rejected anyway, so I’m happy for the opportunity at the Huffington post.
    In fact, I might start sending you all the items that I would be sending to the New York Times and the flood to your inbox might be perfect revenge for not asking permission first. Had you asked permission I would have said yes and done a proper review to make sure every “i” was dotted and “t” crossed and certainly every “d” and “l” in its proper position.
    Best, Susan

Trackbacks

  1. Autism : David Tayloe and AAP Lawyers Take Umbridge At Jay Gordon's April Fools Satire
  2. Disco Knitter » Blog Archive » American Academy of Pediatrics Severs All Ties With Infant Formula Companies
  3. Political speech and PR cleanup: Video of the AAP at the DigitalNow conference — Hoyden About Town
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