Capitalism Means Policing Big Companies

Elliot Temple
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‘We never said there’s no lead or cadmium in it.’ (paraphrased)

Huge, huge red flag. I would be conviced that they were trying to fuck me over. They’re broadcasting that they’re a liar.

A friend of mine bought designer branded clothes online once and when they arrived it was clear they were counterfeit. When they got in touch with the seller to request a return, the seller, instead of insisting they were authentic, said that they never claimed in the listing that they were authentic.

But of course, since they were sold as items of that brand, it was implied that they were authentic. If they were described as counterfeit, then it wouldn’t be false advertising (I think it’s still illegal to sell counterfeit products in many places though, but if buyer and seller both know it’s counterfeit then there’s no fraud.) Paypal let my friend return the items for a full refund.

It’s like how with this chocolate issue, it’s implied that your food doesn’t have lead it, because it’s food. If you advertise your product as food, but then it has lead in it, then it’s false advertising because you’re giving people poison instead of food.

I think these are examples of people being dishonest about what they think honesty is that you discuss in your article lying.

‘These claims are so exaggerated that no reasonable consumer would rely on them to buy a product’ (paraphrased)

wow, so then they tell you that no reasonable person would listen what they said in the past that made you think that it wasn’t poison. Is this gaslighting?

Its so fucked up because like, you’re admitting that the things you say about your brand are bullshit and that people are unreasonable for not expecting your products to be poison. Like what are you saying about your company?

If a person said something like this it seems to amount to saying “I’m an asshole and the harm I’m causing you is your fault because you believed all my lies that convinced you that I wasn’t an asshole.” Like you aren’t defending yourself, you are admitting that you are the thing that you’re being accused of and then telling the accuser it’s their fault.

‘no one has been proved to be injured directly from our chocolate’ (paraphrased)

They’re playing dumb and pretending this is how reasoning works. They know that lots of people will hear that claim and think it’s reasonable. But it’s widely understood that there is no safe amount of lead for humans. There are good explanations for why. That is evidence that people are being harmed.

This is the kind of thing you were taking about in this video of yours.

I’d think they were a dangerous, toxic, manipulative liar. I would put serious effort into avoiding any future interactions with them. I would tell people I knew about them.

I don’t seem to have any trouble thinking these same things about Lindt now.

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In my understanding, tons of food has lead in it. There’s lead in soil.

I think it’s plausible that, regarding lead, Lindt hasn’t done anything worse than most or all other chocolate companies. Plausibly, no chocolate company is currently able to control lead levels enough to reliably satisfy California safety standards. (Not that they’re doing a great job of trying. There’s room for improvement. But I’m not sure this lawsuit has actual merit. Just because Lindt made terrible arguments doesn’t mean there are no good arguments they could have made instead. Which is interesting.)

I think maybe Lindt would rather use these sorts of bad arguments than explain the truth about the situation (how lead gets into chocolate and many other foods, and why it’s so hard for companies to prevent it, and how they aren’t doing anything particularly better or worse than other companies regarding lead).

They advertised stuff like their chocolates being “fine” not being “low lead” or “lead free”. I think “fine” might actually be defensible! (Or “finest” I’d accept as puffery that reasonable consumers should interpret as meaning “fine” not literally “finest”, but it’s not meaningless.) But instead of defending their potentially reasonable marketing, they said it’s obviously indefensible. I think that’s interesting.

Should You Eat Dark Chocolate? -- Facts on Lead & Cadmium I don’t think they have enough data to conclude any chocolate brands are particularly good or bad. But this is interesting (I have not fact checked it):

This trend of heavy metals in chocolate is pretty evident since 2014. The lab results garnered over the years have become the the basis of Proposition 65 notices that As You Sow filed with over 20 companies including Trader Joe’s, Hershey’s, Mondelēz, Lindt, Whole Foods, Kroger, Godiva, See’s Candies, Mars, Theo Chocolate, Equal Exchange, Ghirardelli, and Chocolove for failing to warn consumers that their chocolate products contained cadmium or lead, or both. When these lawsuits were won, other researchers studied how metals might contaminate cacao, as part of a settlement. What did they find? Here’s some things that need to be improved in the chocolate industry:

  • Cacao grown in the Latin American and Caribbean regions have significantly higher Cadmium concentrations than cacao grown in other parts of the world, most notably West Africa. This is based on the soil in those parts of the world and it varies from region to region and farm to farm.
  • The significant source of lead in chocolate products is chocolate liquor. Chocolate liquor is produced from milled cocoa nibs, which are the deshelled portion of a cocoa bean.
  • The source of lead in cocoa beans occurs during post-harvest handling of wet cocoa beans. This does not happen by the uptake of lead from the cocoa tree.
  • During the post-harvest handling of wet cocoa beans, the source of post-harvest lead in cocoa beans is a result of the following mechanisms:
    • Foreign material included loosely within bulk cocoa beans.
    • Encasement of soil particles on the wet and sticky cocoa bean shell during outdoor drying.
    • Chemical adsorption of Pb by the wet and acidic cocoa bean shell during contact with soil.
  • The transfer of lead from cocoa beans to nibs occurs during the shell removal process. They found that the nib obtains approximately 70% of its lead concentration through contact with Pb-containing material (i.e., shell, soil, light, and fine material) during bean breaking.

Chocolate has other problems besides lead and cadmium, btw. For information only, I’m not endorsing this or expressing a conclusion: Child Labor and Slavery in the Chocolate Industry

On a related note, mercury in fish is a problem. So people invented better mercury testing technology which enables selling a low-mercury canned tuna product. And they tried to sell this technology to tuna companies. But none of the companies wanted it. So they made their own tuna company, Safe Catch, which I think is good, and successful enough to be sold in Costco, but I don’t think it’s especially successful (merit doesn’t rise to the top very well).

Safe Catch FAQ

Why don’t other brands test each tuna for its mercury level?

You would have to ask the other brands. We started as a technology company and invented proprietary testing technology to screen seafood for mercury. We offered to test and certify purity for other brands but every brand we approached declined. So, we used our technology to start our own brand, and we call it Safe Catch. Safe Catch is the only brand that tests every single tuna to a strict mercury limit.

The big canned tuna companies know there is some mercury in their food and apparently don’t want to measure how much nor warn consumers. (I have not fact checked this matter.)

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I looked this issue up myself and I was going to post about it before your reply to me:

Lead and cadmium appear to naturally occur in some amount in a range of foods. I haven’t looked into this ~at all but some quick google searches showed some info. It seems there is some disagreement over whether cacao has lead naturally or not. Google AI says it doesn’t, but some other things say it does and I haven’t looked into it. I do kinda know that lead is a very common element in the soil/ground/the earth so it sounds plausible to me that a range of foods contain it.

–

Yeah it seems so.

Yeah I see that. My first thoughts after searching about lead and food were why are Lindt using really bad arguments to defend themselves. They’re the kind of arguments that make you seem guilty.

It seems like that to me. The arguments are so bad. I wonder why they prefer it? It seems like showing the courts that everyone else’s chocolate has lead, and the fact that lead occurs in soil, i.e something more truthful, would be more compelling. Maybe fighting with the food safety standards of the state is a much bigger fight than defending themselves against this, and they weren’t up to it?

Yeah it makes me wonder why they would prefer that.

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https://www.reddit.com/r/antiwork/comments/1gjfwfd/the_customers_wont_taste_the_difference/

Multiple comments have similar stories.

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I don’t think I disagree’d with you. Though you didn’t explicitly say you did. I agree that its bad. I think maybe our disagreement(?) is that I thought “puffery”/saying your ads are puffery and saying your ads are unbelievable and that you’d be dumb to believe it are the same thing

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So I tried finding Lindt’s original motion to dismiss where they made all their arguments (the above is just a summary by a judge explaining why their motion to dismiss was denied). Its a bit of a hurdle it seems. But from the above document I shared:

First, Lindt argues that “[b]ecause lead and cadmium are unavoidable in the food supply, plaintiffs cannot plausibly allege that thetrace amounts reported in the Products (at levels substantially below the thresholds set by regulators) are material” omissions.

So it seems they did argue something more reasonable/explaining the truth of the situation and then also:

Next, Lindt argues that the phrase “[e]xpertly crafted with the finest ingredients” and the word “excellence” are inactionable “puffery.” (ECF No. 34-1 at 28.) Only “[g]eneralized, vague, and unspecified assertions,” that is, only “exaggerated advertising, blustering, and boasting upon which no reasonable buyer would rely” constitute puffery.

I could be wrong but from my very limited legal knowledge they could have just been putting argument after argument in different sections in their motion to dismiss. So maybe they did share something about the supply chain and then later also added the puffery argument. They could have also maybe put the two together in the same argument, which would be pretty bad. idk.

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Similar story from Starbucks, though I don’t think this one is quite as bad as some of the one shared:

The white mocha syrup for our white mocha drinks has been calibrated to have 10% less syrup per pump or something quite recently. Customers won’t notice it apparently. Only reason I feel like it isn’t as bad as some of these other stories is that additional pumps of the same product is free. So if it tastes weaker you could freely add more.

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I think we disagree about two main things.

  1. You think it’s OK, reasonable or even beneficial/necessary for lawyers to throw argument spaghetti at the court without regard for only making good or reasonable arguments. I think it’s irrational, unnecessary, actively making the world worse, and much less effective than its advocates believe (and it can easily be counter productive).
  2. You don’t seem very concerned with what the arguments imply about reality, specifically about the company making them. Like if they say “no reasonable customer would believe our ingredients are good quality or healthy just because our packaging said ‘finest ingredients’”, they are saying they don’t try to tell the truth on their packaging and don’t respect their customers.
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I see how I can come across as that. Mmm. I think its ok in this sense: lawyers think such things are necessary even if they have problems with such arguments in their day to day life. They believe their job is to get their clients off no matter what (I don’t agree with that to be clear). So when I see these lawyers making these arguments I don’t have as bad of a judgment of them. I am aware of examples of lawyers who don’t do such things and only make good/reasonable arguments (or at least try to).

I don’t think its beneficial/necessary. I just think its normal. Normal not even necessarily meaning ok. Maybe this is a mistake I’m making? Its kind of like corporal punishment in my head. Depending on the context, some parents I judge worse for hitting their kids vs other parents. I judge my parents, and the Bangladeshi community I grew up in, less harshly for hitting me, and their kids, then I do for the average westerner. In both cases I don’t think its fine for parents to hit their kids, I just judge it a bit differently. Is that a mistake?

Hmmm. I think I didn’t take it seriously because I heard the argument in a legal setting. I thought of it as something Lindt was doing to avoid legal trouble. I think because of hearing a lot of bad stuff about courts, I’ve become a bit biased in thinking that doing anything to avoid issues in court is fine. Now that I think about it a bit more though their are probably companies/individuals who fight cases without using bad arguments/doing shady things.

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This is why I suggested thinking about it as if one person did all the things, instead of a company with multiple different people.

What if the one guy who writes the marketing, and creates the chocolate, also said like “lol y’all believed that marketing? haha y’all are as dumb as I thought”. But he said it in court. Why is saying it in court better? Court is where you’re supposed to tell the truth and people are often under oath or have to sign any documents they submit to the court and attest the stuff is true and good faith and things of that nature. So I think saying it in court is worse than saying it at e.g. a party – it makes it more serious, more thought out and meant as stated not a careless offhand remark.

I think having the lawyers say it, rather than the CEO, workers or marketers, makes it seem more separate from the rest of the company. But it shouldn’t. Lawyers are especially official representatives of the company: they are highly paid, highly skilled, and have way more authority than most workers.

Basically a company should be held to what it says in court the same or more than what it says elsewhere. Court statements are extra serious, not less meaningful.

From their point of view, their job is to help the clients’ interests. That includes getting off in court but also includes other interests like not harming the company’s reputation.

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I got recommended this YouTube short from a layer while at work after this conversation:

Companies hires lawyers that are like them.

The more I think about it the more it does make sense. In general, lawyers should/would act how their clients want them too or you would hire a lawyer that is going to act like how you want them too.

I think my particular bias on this topic has to do with government action against private entities. Whether be companies or individuals. You say:

From all the legal stuff I think this is probably true for issues related with private companies. I forgot about issues in that area of law, but I do remember, and agreeing, that area of law being fairly good, in my judgement at least, at truth seeking. Its just recently (no rough time frame) I’ve been consuming a lot of legal content related to bad stuff the government does which has made me kind of not trust the legal system. Thinking back on it, I initially read that Lindt lawsuit as “Lindt vs Government” and not “Lindt vs private parties”.

Where I would disagree with your comment from above is with issues related to government action. Now, to be clear, I’ve only really read one side of the arguments on this kind of stuff and all, so there could 100% be stuff I’m aware of. However, here’s a simple example of my point: plea bargain. From what I know people will admit to crimes they may have not committed to get a good plea. A guaranteed one year in prison versus a potential 5-10 years in prison while going through an awful trial process. People take the one year in prison. I don’t think I trust any statement gained through this method. Another example related to pleas: governments will give underlings(? is that the best word here) of an organization reduced (sometimes insanely reduced) sentences to get testimony to throw leadership in jail. Those statements I don’t trust. Its stuff like that that has colored my vision of the court.

I agree.

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While I haven’t studied it, I do believe there is lots of abuse of power related to coerced plea bargains.

Other terms include “subordinates” or “lower level people”.

I see the benefit of offering deals for testimony but they also have major problems (letting some people off lightly who did bad things and incentivizing dishonest testimony to get a deal). An example is the FTX case where Bankman-Fried was prosecuted more seriously while Ellison got significantly gentler treatment in return for testimony despite being one of the most guilty people in a really huge fraud.

My view is that every large, big thing in the world, involving lots of people and money, is highly flawed (by the standard of knowledge that exists, so the flaws are visible to many smart people and even people who aren’t very smart will correctly notice some flaws). That includes lawmakers, law enforcers, courts, companies, charities, religions, etc.

The government may have tons of flaws but that doesn’t stop companies from being the party that’s primarily in the wrong a significant portion of the time they’re in conflict with the government. (The previous sentence is hard to read. Make sure you follow it, and if you’re confused make a tree to try to figure it out. If I wanted to make it easier to read I’d break it into multiple smaller sentences FYI, but I thought I’d leave it for you to figure out.) The big companies also have tons of flaws.

One of the reasons for the flaws is that identifying problems is often easier than solving them. But there are also a lot of other reasons like bias, conventional selfishness (not rational self-interest that correctly takes into account the future and uses approaches that avoid conflicts of interest), lack of paths forward or transparency, and non-decisive epistemology.

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Another fraud example:

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I think I understand it. The government may have flows. Regardless, those flaws don’t change the fact that private companies are typically in the wrong.

I agree.

The lawyers who I’ve read/listened to about this stuff have mentioned that their are plenty of parties who did wrong things in a bad government process. An example mentioned was the Enron case. I know nothing about the case and in the particular book I read it was just mentioned as an example of a popular case where prosecutors did bad stuff. From Conviction Machine: Standing Up to Federal Prosecutorial Abuse :

“Many people have heard the adage: “A prosecutor can get a grand jury to indict a ham sandwich.” That proved true most recently when Robert Mueller’s handpicked team of legal eagles indicted a Russian company that did not exist.1 The special counsel also indicted a Russian company on “unprecedented” charges, meaning, in plain speak, the prosecutors made up a crime—again.2 It happened many times in the Enron case (as described in detail in Licensed to Lie). ”

I don’t think the authors ever necessarily defend Enron on stuff they did. Well, correction. I have not read any of Sidney Powell’s works and she wrote Licensed to Lie. I have read Harvey Silverglates books (the other author of Conviction Machine) and from what I can remember he didn’t necessarily defend Enron.

What should do I about footnotes when copying and pasting? Should I try and edit the quote to make it look exact to the original? Here’s what the quoted part normally looks like:

image
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Superscript them with the <sup> tag, put square brackets around them, or delete them and write “footnotes omitted”.

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Lots of anecdotes in the comment section.

U.S. health insurance companies don’t accurately, truthfully advertise what they do and don’t cover and how their approval/denial systems/policies work. They aren’t transparent and frequently violate people’s reasonable expectations about what contract they had.

Lawsuits can result in some transparency: Inside UnitedHealth’s Effort to Deny Coverage for a Patient’s Care — ProPublica

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I read the introduction of the book Delay, Deny, Defend: Why Insurance Companies Don’t Pay Claims and What You Can Do About It (2010). So far it looks like a good book. It’s primarily about home and auto insurance but other types of insurance companies are doing similar things.

Based on what it says, these companies are awful. They certainly aren’t following the rules of the free market. Defrauding customers with false advertising and refusing to follow their contracts are just a couple of the many things they’re doing wrong.

In addition to not being free market capitalists, they don’t look primarily like crony capitalists either. Crony capitalists form relationships with the government, lobby the government for favorable regulation, get government subsidies, and otherwise actively benefit from government action. I’m sure they do some of those crony capitalist things, but based on what I read that isn’t the main story.

What it sounds like is they (advised by McKinsey consultants) identified some things they could get away with. They’re adversarially defying both the consumers and the government. They recognized that the government regulators and the courts won’t punish them enough for what they’re doing. They’re saving more money from not paying and underpaying valid claims than they’re losing from court costs and other downsides (at least for now – what will happen in the long run is much harder to evaluate). Exploiting weaknesses in the government (and in consumer behavior) is different than befriending the government to get special favors or privileges.

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This is a video about trying to sue the owners of Minecraft. It gives some good examples of how companies break laws and how to think about contracts in order to see that common company behavior is illegal. If you can think about and interpret law similar to Kian Brose, then you should be able to also conclude that many other companies are breaking many laws.

The video features the government being awful too. So awful that basically there’s nothing he can do to protect the legal rights the governments tell him he has and officially wrote down.

It’s about the EU but I don’t think the US legal situation is all that different. US citizens also have tons of legal protections according to the written law (not necessarily the enforced law). So I think US companies are about equally guilty of violating existing laws as EU companies are.

I think a fair amount of people believe the EU is better than the US because the government resources he tried to use sounded friendlier and better than what the US has. And if they actually worked, that might be correct. But as you can see in the video, the EU’s resources didn’t work. I suspect the US and EU are about equally good/bad and function in broadly similar ways for most stuff (which makes sense given how much the US and EU elites intermingle, communicate, travel, share ideas, etc.)

What does help protect rights some is the internet. His crowdfunding reached around $130,000 USD so far which he says is over the bare minimum to try a lawsuit, so he’s going to try with private non-elite non-government funding.

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This makes me wonder: are there any companies you know of that are like Rearden Steel? I’m pretty sure there’s nothing like Rearden Steel today, but what about in the past? In general, I think I’m more skeptical of how good some of the businessman of the past have been portrayed by pro capitalists (such as Rockefeller) but maybe I’m wrong to be skeptical.

Also I’m reminded of this book: Liability: The Legal Revolution and Its Consequences: Huber, Peter W: 9780465039197: Amazon.com: Books (couldn’t find a generic link about the book. just an amazon link).

I remember reading a little bit of it a few years ago but I’m going to start reading it again and post about it. In general, I think the authors main claim was that we have more liability laws and stuff but we haven’t necessarily gotten any safer for it. Companies pay out a lot (when they are made to ). People sue for a lot. We aren’t any safer for it, however. I forget if/how he backs up his claims. I’ll see.