“I believe that nicotine is not addictive.”
“Mr. Congressman, cigarettes and nicotine clearly do not meet the classic definition of addiction. There is no intoxication.”
“I don’t believe that nicotine or our products are addictive.”
So went the testimony of the presidents of Philip Morris, R.J. Reynolds, and U.S. Tobacco Company, respectively, back in 1994, under oath, during a hearing convened by the House Subcommittee on Health and the Environment. The hearing was held to consider whether the Food & Drug Administration should regulate cigarettes like a drug, and the addictiveness of nicotine was critical to answering that question. Within a few years, thanks in large part to whistleblower Jeffrey Wigand, who revealed that tobacco companies not only knew how addictive nicotine was but had used that information to make cigarettes more addictive, it was clear that these three, and their colleagues from the other Big Tobacco companies, had lied under oath. Those lies were the linchpin for both the courts and Congress to finally hold the tobacco industry accountable after it had dodged more than 40 years of lawsuits alleging product liability, fraud, and consumer protection violations.
By 1997, attorneys general from every state, the District of Columbia, and most U.S. territories, sued the tobacco companies to recover the public health costs incurred by smoking (in 1990, approximately 20 percent of all deaths in the country could be traced to the habit). The industry caved and agreed to pay a master settlement of hundreds of billions of dollars in damages, and to stop targeting youth in their advertising. By all accounts, it was a major victory in corporate accountability.
Now, Congressman Ro Khanna (D-Ca) has a “nicotine is not addictive” moment in his sights for Big Oil. Khanna is co-chair of the House Oversight Committee, which officially launched an investigation into climate disinformation last month. The Committee has asked the CEOs of the top four oil companies (BP, Chevron, ExxonMobil, and Shell) as well as the presidents of the American Petroleum Institute and the U.S. Chamber of Commerce to appear for questioning on October 28th. They have also sent the companies and industry groups extensive requests for documents related to their internal and external communications on climate change from 2015 to today.
The decision to go back only to 2015, rather than, say, the 1970s, when oil company researchers first began producing reports about the link between fossil fuels and climate change, was because “we wanted to be focused on the recent activity and the ongoing activity,” Khanna says. “Obviously, there’s a huge debate about how much companies knew and when. But this is less about the historical record and more about what are these companies doing now, once they’ve promised the American public, once they promised their own boards, that they’re going to have sustainable policy?”
The House investigation was spurred, Khanna says, by the former ExxonMobil lobbyist caught on tape by UK investigative journalists from the Greenpeace-funded project Unearthed earlier this year.
“I mean, everyone saw this lobbyist bragging about killing climate legislation and talking about how cynical Exxon and some of these other oil companies have been,” he says. “And I was talking to people about it and they said, ‘Well, you know what? We brought the Big Tobacco companies into Congress and that really made a difference.’ No one has been willing to use all the tools of the Committee before, and I said we should be prepared to do that.”
Those tools include subpoena powers, which Khanna promised early on to use if oil companies and industry trade groups were not cooperative with the investigation. He says, so far, they have been submitting documents and making their executives available. Also, the hearing on October 28th is only the first one; Khanna says he expects there will be more as the Committee digs into the public relations agencies, consulting firms, and social media companies that have aided and abetted climate disinformation.
This all sounds promising, but are the Big Tobacco hearings really the best model for corporate accountability? After all, the Congressional and Department of Justice investigations of the tobacco industry, and even the massive master settlement did not put a stop to corporate disinformation, tobacco-related or otherwise. In fact the heyday of climate disinformation hit during the height of accountability for the tobacco industry. (Fun fact: the oil companies were actually co-defendants in the Big Tobacco litigation because they developed the cigarette filter, being smog experts with a side business in plastic and all, but didn’t do a very good job at filtering out the toxic chemicals). So did the hearings solve the problem, or just force corporations to get better at lying to the public and covering it up?
Nor did federal and state prosecution of tobacco companies put them out of business. Today, the American tobacco industry remains wildly profitable. The operating profits of U.S. tobacco manufacturers grew a whopping 77 percent from 2006 to 2016, according to Bank of America Merrill Lynch Global Research. And some of the names most associated with misleading the public back then — Phillip Morris and R.J. Reynolds in particular — are now leaders in the vaping industry, which has recently been under fire for…you guessed it, misleading the public about the health impacts of vaping.
Their strategy? Pushing the idea that more science, more research is needed before vaping is regulated. Sound familiar? Just a couple of years after Altria Group (Philipp Morris’s parent company) bought a 35 percent stake in vaping industry leader Juul, that company had to pay out a $40 million settlement to the state of North Carolina for its practice of specifically targeting teens in its advertising, the exact same tactic the tobacco companies were banned from doing by the master settlement. There are currently more than 2,000 similar active suits against Juul — seems Big Tobacco is headed for yet another reckoning, even while it’s still paying damages for the first one.
Perhaps most important, none of the legislative or social changes spurred by Big Tobacco’s big ordeal in the 1990s materially impacted the system that allowed disinformation to flourish in the first place. Now Congress and the courts face an inflection point with disinformation — climate and otherwise — and what they decide to do will determine whether U.S. corporations might finally kick their addiction to propaganda.
The Oversight Committee’s investigation happens to coincide with House and Senate investigations into the spread of everything from Covid-19 misinformation to Trump’s “Big Lie” about election fraud. These other efforts are more focused on the distribution system enabling disinformation — the unregulated social and digital media landscape — while the Oversight Committee is targeting the content created by one industry. But there is an opportunity for the combined efforts to finally get at one of the longest-running and most lucrative industries in America: Big Disinformation.
According to research conducted by environmental sociologist Robert Brulle, the world’s top five oil companies spent more than $3.6 billion on greenwashing and pro-fossil fuel propaganda over the past 30 years. Those efforts include sowing doubt about the science for years after the industry’s own scientists confirmed that greenhouse gas emissions caused by the combustion of fossil fuels would have a devastating impact on life as we know it. But they also include more subtle and insidious things. The industry’s tendency to highlight how much it’s investing in renewable energy technologies, for example, despite the fact that no company spent more than 3 percent of its capital expenditures on such things until this year. Overstating the potential of technologies such as carbon capture that help to maintain the status quo is another industry favorite.
Fossil fuel companies have invested these billions of dollars in managing how the American public and legislators view the industry, climate change, and what sorts of solutions we are allowed to even entertain, not just via advertising and press, but also by sponsoring events and museum exhibits, crafting curricula for schools, and invading every realm of research related to the problem. Stanford University researcher Ben Franta has found that a handful of industry-funded economists provided the backup for every politician over the past 30 years who’s argued that tackling climate is “too expensive.” It’s the exact argument we hear today, from even Democratic senators like Joe Machin and Kyrsten Sinema.
The search for accountability is at the root of some two dozen climate liability lawsuits making their way through the country’s state courts, as well as the Polluters Pay Climate Fund Act proposed by Senator Chris Van Hollen (D-Md.) earlier this year. The former would create funds at the state level to cover the cost of climate adaptation, the latter would create a federal fund into which oil companies would be required to put $500 billion over the next decade.
Both admissions and lies under oath at the upcoming hearings could help make the case for the industry’s financial liability on climate. “Part of it is getting these companies under oath to say they’re not going to be engaged in killing climate legislation and lobbying and climate disinformation,” Rep Khanna says.
But as we saw with Big Tobacco, holding an industry financially liable for some portion of the harm they’ve wrought is not necessarily enough to keep them honest. “There has to be some way to force transparency, for lack of a better term,” says Franta, the Stanford researcher. “There’s a big problem now where we don’t know how much money the industry is spending or what actions it’s taking to block climate policy. We don’t know the full story. We also don’t really know how much money they’re spending on clean energy or these other things, and they’re making all sorts of promises. They’re making promises about hydrogen, and carbon capture and carbon offsets too. And I think there needs to be some sort of burden of proof that’s placed upon them, given their history of lying.”
Because the stakes are so high at this point, in large part due to the fossil fuel industry’s decades of denial and delay on climate, Franta says we can’t afford any more of the industry’s false promises. “I think that their past actions provide justification for holding them to a higher standard than you would normally hold a company,” he says “They need to come under some level of special scrutiny, something that goes beyond mere transparency, that goes beyond disclosure. It’s almost like an information receivership.“
In the same way that a company in financial trouble might have a court-appointed receiver overseeing their operations to keep them out of bankruptcy, what if the fossil fuel industry had some sort of particular oversight of its claims, something that vetted their accuracy before they were unleashed on the public? The idea of such a thing sets off First Amendment alarm bells for a lot of people, including, of course, the fossil fuel industry itself, which has been deploying a First Amendment argument in the various liability and fraud claims against it. But Franta is not suggesting every industry be subject to such a process — just the one that’s been caught lying to the public for decades about an issue that will affect every living creature on the planet. “They’ve betrayed the public’s trust, so they’ve really forfeited the benefit of the doubt,” he says.
That sentiment dovetails with what other disinformation experts have been saying for a few years now: disinformation needs to be regulated in some way.
“Media literacy or critical thinking would be great, teaching people how to spot disinformation, but there also just needs to be real federal oversight and regulation of social media platforms and search engines,” says Caitlin Gilbert, a neuroscientist, data scientist, and disinformation expert who started the Democracy Digital Coalition in April 2020 to tackle disinformation leading up to the election.
Melissa Aronczyk, a media studies scholar at Rutgers University, would like to see the public relations industry included, and regulated. “PR underlies the entire information ecosystem,” she says. “People need to see public relations as more a part of the problem — they’re creating disinformation too, it’s not just Exxon.”
But how to curtail any of it without infringing on First Amendment rights? Particularly since companies secured those human rights for themselves back in 2010, when the Supreme Court decided in the Citizens United case that corporations are people too.
“They have a First Amendment right to put things out, but they don’t have a First Amendment right to lie to their board of directors or to the American people,” Khanna says. “So they can’t tell the American consumers and their shareholders one thing and then do something totally different.”
As for going a step further than what happened with Big Tobacco? Khanna says all options are on the table, even the sort of “information receivership” Franta suggested. “I don’t want to prejudge a solution before seeing the evidence, but if there is evidence that they’re engaged in deliberate misrepresentation and knowing misrepresentation, then I think that that is one potential remedy to explore,” he says. “But first, you know, everyone kind of has the intuition and the anecdotal information and there are books written about [climate disinformation], but if we could formally establish a record of what that disinformation is, and a commitment to stop it, that will be a big step in getting that remedial action.“
There’s remedial action and then there’s preventative action, which is what Franta and many of the researchers who study climate disinformation would like to see. “A long time ago, deception became Big Oil’s business model,” Franta says. “And it’s not just that they lied, but also that they’re selling an abnormally dangerous product. Not many industries sell a product that can cause a global catastrophe. And this is not just an industry that, if it continues, might cause catastrophe, like the nuclear industry or, say, biological weapons research. We know for a fact that it will cause catastrophe. So even if they were telling the truth, they should still be subject to particular scrutiny.”
Amy Westervelt is a climate journalist. Her latest project is Rigged — an online archive and podcast about disinformation.