Light Meals.

• Author: Lynch, Michael W.

In which our man in Washington samples dioxin, ice cream, sexual harassment, and butt-kissing analysts.

Date: Thurs, December 16, 1999

1:45:15 PM

From: mlynch@reasondc.org

Subj: Ben & Jerry's Breakfast

The Competitive Enterprise Institute was serving Ben & Jerry's ice cream this morning. The occasion was a press conference announcing that CEI had filed a false advertising complaint against the makers of Cherry Garcia.

Ben & Jerry's is quite concerned about the environment and quite supportive of Greenpeace, on whose board company cofounder Ben Cohen sits. The company combines these affections by producing "dioxin free" containers (ECO-Pints) and citing the Greenpeace party line on why this is a good thing in such adver-informational pamphlets as "Our Thoughts on Dioxin." One such thought is, "The only safe level of dioxin exposure is no exposure at all."

The problem: Ben & Jerry's packaging may be OK, but the company's ice cream, according to certified lab results, contains a heap of dioxin--nearly 200 times the amount the Environmental Protection Agency considers safe.

Such hypocrisy is more than the folks at CEI could take. According to CEI General Counsel Sam Kazman, the institute believes the federal government serves two legitimate purposes: to protect against force, which is why the military is OK, and to protect against fraud, which is why some folks at CEI consider the Federal Trade Commission legitimate. Today CEI has called on the FTC to investigate Ben & Jerry's for false advertising. Hence, I got ice cream for breakfast.

CEI is known for such creativity. In 1995, after the FDA announced it could regulate cigarettes as nicotine delivery devices, the folks at CEI embraced the model and called on the FDA to regulate colas and coffee as caffeine delivery devices. Purveyors of such products, after all, market them heavily to children even as they manipulate the levels of caffeine. And everyone knows that caffeine has pharmacological effects. This stunt cost CEI the support of Coca-Cola, according to Sam Kazman, and they weren't even serious.

This time, however, they are. To prove it, they presented retired government biologist Michael Gough, who has been studying dioxin since 1979 and served on the EPA's scientific advisory board on dioxin.

At 10:05 a.m., Sam Kazman stepped behind the podium and, with five or six empty containers of Ben & Jerry's ice cream to his right, articulated the complaint. By claiming that its packaging is dioxin free, he said, Ben & Jerry's is committing two well-established legal violations: deception by omission of material fact--in this case, that the ice cream contains dioxin--and deception by implication--in this case, the implication that the ice cream doesn't contain dioxin.

Kazman used a hypothetical kosher restaurant to illustrate the violations. Suppose a restaurant advertised it was kosher by claiming to maintain separate utensils for the handling of dairy and meat products, but didn't tell customers that the beef it served wasn't kosher. This would be false advertising.

Kazman doesn't claim a health hazard, nor did the scientist Gough. Indeed, a point of the exercise seems to be to get Ben & Jerry's to admit that ingesting a little dioxin, even if nearly 200 times what our...