Wednesday, August 19, 2009
"Wheaties Fuel"-Successor to Champions
The codfish lays ten thousand eggs,
The homely hen lays one;
The codfish never cackles
To tell you when she’s done;
And so we scorn the codfish,
While the humble hen we prize.
Which only goes to show you
That it pays to advertise.
— Anon.
That one it got right. And in a big way. And the ameliorating news broke just as the bad news hit the papers. I’m referring to General Mills. Two weeks ago I described the problems it was having with the Food and Drug Administration because of its advertising the medicinal qualities of Cheerios. It told consumers that those who faithfully ate Cheerios for 6 weeks would lower their cholesterol by 4 per cent. The FDA said such a claim moved Cheerios from the cereal category to the drug category and it should either go through the process for a new drug application or discontinue the advertising. It’s too soon to know how that controversy will get resolved. The FDA won’t be getting involved in General Mills’s exciting newest product, however. It’s a Wheaties offspring that is designed to appeal exclusively to men. It comes with the tantalizing name “Wheaties Fuel”.
Wheaties has long been associated with athletes who were winners rather than the other kind. It was known as the “Breakfast of Champions” and boxes would feature pictures of such sports heroes as Joe Dimaggio swinging a bat and saying “I can’t sock ‘em out on a skimpy breakfast” implicitly suggesting the antidote to “skimpy breakfast” was a bowl of Wheaties. (That particular box also had a small picture of a girl in a bathing suit saying “tops with me.” From the size of the picture it’s impossible to know if the bather was famous or simply pretty.)
Wheaties did not start out as a champion. According to a report in the New York Times, it had something of a wimpy beginning. It was “invented accidentally when a health clinician in Minneapolis who was simmering bran gruel for intestinally distressed patients spilled it onto a hot stove and it dried into flakes. . . .” Recognizing what a good thing it had, General Mills’s predecessor company began marketing the fortuitously dried gruel as a cereal. Ten years later its new proprietor, General Mills, baptized the boxes in which it came “Breakfast of Champions”. The first athlete whose image was used was Lou Gehrig. The faces of dozens of other well-known athletes have graced the boxes over the years. General Mills hoped that consumers would believe that by consuming Wheaties they, too, would become champions. Looking at sales figures, General Mills has now realized that the bloom is off the rose.
According to the New York Times story, sales have been dropping. In the last year alone, Wheaties’ sales have dropped roughly 14 per cent, hardly the performance expected of champions. And the decline is not simply fortuitous. General Mills apparently thinks that Wheaties is a bit effeminate for today’s male. Although 60 per cent of Wheaties’ eaters are said to be men, Amy Martin, a member of the advertising group that handles Wheaties’ account, told the Times reporter that “females have historically more often been the purchasers of cereal” and even when the men are doing the shopping, it’s long been assumed they buy what their wives or girlfriends tell them to buy.” Ms. Martin further observed that men (without I should say, losing any of their masculinity) “are taking over a lot more of the shopping occasions. And as that happens, men are not just following a list but are much more focused on making decisions themselves.” David Clark, a marketing manager at General Mills offers another reason why Wheaties is changing. “Nobody in this enormous category (cereal eaters) is speaking to men. Men don’t use their wives’ razors or deodorants; why would they be eating their cereal.” (It is important to note that this observation only applies to cereals. A man eating in a restaurant should not be dissuaded from ordering a drink or a meal simply because most of the women at his table are ordering the same thing. Cereals are, as lawyers like to say, sui generis.)
It is not simply the advertising that is going to accompany the new product that is changing. There is going to be a substantive change as well.
Wheaties includes folic acid, an ingredient that everyone knows is more important for women than for men. The new product is going to add Vitamin E, something believed by some to be lacking in men’s diets. The final product is not going to be the result of a few tasters at General Mills. Although famous athletes have helped in the design of the product, the company sought volunteers from “everyday athletes” whom it solicited in the magazine Men’s Health. The volunteers will select the best formulation of Wheaties Fuel and that will replace the Breakfast of Champions on your grocery shelves.
There is only one thing that is more amazing than I am sure the new product will be. That is all who are associated with the new product from developer to promoter take themselves seriously. General Mills can only hope that the General Public, especially the part that comprises men, will follow suit.
Wednesday, August 12, 2009
Crime Without Punishment
There are men in the world who derive as stern an exaltation from the proximity of disaster and ruin, as others from success.
— Winston Churchill, The Malakand Field Force
KBR will long remember August 7, 2009. Cheryl Harris will long remember August 7, 2009. Each will remember it for the same reason. That was the day they learned that a team of investigators from the government had concluded that KBR should not be held criminally responsible for its negligence. It arrived at that conclusion because of a unique legal theory the investigators developed in connection with the electrocution in Iraq of Cheryl Maseth’s son, Staff Sgt. Ryan Maseth.
KBR is known for its ability to get contracts for reconstruction in Iraq notwithstanding its demonstrated incompetence and its criminal activities in countries other than Iraq. Its demonstrated incompetence has been covered here and in countless other venues. It was rewarded for its incompetence by receiving $615 million for certain reconstruction work in Iraq that included, but was not limited to, not building a pipeline for which it received full payment, not serving food to the troops for which it was paid and not furnishing potable water to the troops for which it was paid.
KBR’s success at getting contracts notwithstanding its incompetence is seen in the contract it was awarded in January 2009 for $35.4 million to construct a power plant and electrical distribution center at the Camp Adder convoy support center in Iraq. Its dishonesty is demonstrated by the fact that less than three weeks after being awarded that contract it pleaded guilty to charges under the Foreign Corrupt Practices Act for being part of a four-company joint venture that used bribes in order to get engineering, procurement and construction contracts in Nigeria to build liquefied natural gas facilities in that country. The contracts were worth more than $6 billion, a sum that makes the Iraq contracts seem like small potatoes. The fine it paid for its criminal activity in Nigeria was $402 million or two-thirds of the money it received for the above-described work it didn’t do in Iraq. (In addition, it, and its former parent, Dick Cheney’s Halliburton Company, jointly agreed to disgorge $177 million in profits arising from their criminal activities. When that amount is added to the fine, the U.S. government was almost made whole for the money paid the company for its non-work in Iraq.)
Here is why the company and Cheryl will both remember August 7, 2009. On January 2, 2008, Ryan was electrocuted when he attempted to take a shower in a shower in a barracks that had been wired by KBR. At first his death was described by the military as an accident. The army explained to Cheryl that her son had an electrical appliance with him in the shower that caused his electrocution. That, as so much else associated with the Iraq war, was a lie. He was electrocuted because a water pump in the building was not properly grounded and when the shower was turned on Sgt. Maseth was electrocuted. In January 2009, it was reported by the Associated Press that an army investigator had called the death a “negligent homicide” that occurred because two KBR supervisors had failed to ensure that “qualified electricians and plumbers” were employed in construction of the building. The army investigator’s conclusions have been rebutted by the Defense Department using a unique, if not overly persuasive legal theory.
The Associated Press reported that the Defense Department said there “was insufficient evidence to prove or disprove” that anyone was criminally responsible for Ryan Maseth’s death. It didn’t say that KBR wasn’t negligent. It said that both KBR and the government were negligent in exercising their respective duties of care to Ryan and none of the breaches of duty, by itself, was the “proximate cause” of Ryan’s death. They also concluded that Ryan’s death was an accident. Both conclusions are extraordinary and the conclusion as to “proximate cause” should give heart to those contemplating doing wrong.
According to the Defense Department legal theory, an act of criminal wrongdoing entails no criminal consequences if there is a superior who should have detected the subordinate’s wrongdoing and taken steps to right it. That is because if one of the parties had done what he or she was supposed to do, the injury would not have occurred. Applying this theory, if a drunk worker were to get into an employer’s vehicle with the knowledge of the employer and have an accident, neither the driver nor the superior would be criminally responsible for the consequences of the conduct since each of them bears some responsibility and neither was the “proximate cause” of the accident.
KBR’s website says that: “When you become part of the KBR team, your opportunities are endless. . . .” They got that right. It’s just too bad the endless opportunities are malfeasance, incompetence, and corruption.
Christopher Brauchli can be e-mailed at brauchli.56@post.harvard.edu. For political commentary see his web page at http://humanraceandothersports.com
Thursday, August 6, 2009
Three Strikes and You're In
Won’t [public flogging] be fine. Th’ Govermint gives us too little amusemint nowadays. Th’ fav’rite pastime iv civilized man is croolty to other civilized man.
— Finley Peter Dunne, Corporal Punishment
It is always refreshing when awareness and consequences catch up with the absurd. For more than 40 years, some thought that the way to reduce criminal activity was to limit the number of crimes a person was permitted to commit before life in prison without parole became the imperative alternative. Such enlightened approaches to crime were known as “three strikes” laws. Absurd applications are legion but my favorite is the Texas case of Rummel v. Estelle that was especially instructive because it introduced into the world of the air conditioner repairman a cautionary note. The case stands for the proposition that failure to satisfactorily repair an air conditioner when charging for the work may led to a prison sentence of life without parole.
In 1964 William James Rummel was convicted of fraudulently using a credit card in order to obtain $80 worth of goods or services and sentenced to 3 years in jail. One way of looking at that sentence was that if he got to keep the $80 worth of goods or services he effectively paid $26.67 for each of the years he spent in prison. Unfortunately, prison was not a didactic experience for him.
Within a year after his release, he passed a forged check in the amount of $28.36, pled guilty and was given 4 more years in the penitentiary at a cost to him, if he got to keep the money, of $7.09 a year. Viewed in a positive light, he was given room and board for 4 years for a very modest sum. The only thing he didn’t get was freedom. Sadly, and herein lies the cautionary tale for air conditioner repair people, it was his attempt to earn an honest living that got him back into prison for life.
As soon as he was released he went into the air conditioning repair business and charged a customer $120.75 for a repair. His work was unsatisfactory but he refused to return what he had been paid. In Texas that constitutes obtaining money under false pretenses and convicted of that, he was sentenced to prison for life under Texas’s three strikes law. He appealed and the U.S. Supreme Court upheld his sentence.
In an opinion written by Chief Justice Rehnquist in 1980, the Court held Mr. Rummel’s sentence did not violate the 8th and 14th Amendments’ ban against cruel and unusual punishment. The Chief Justice, apparently somewhat embarrassed by upholding Mr. Rummel’s sentence, said: “We all of course, would like to think that we are ‘moving down the road toward human decency’ Furman v. Georgia . . .. Within the confines of this judicial proceeding, however, we have no way of knowing in which direction that road lies” Not being a legal cartographer I could not then have commented on whether he was right or wrong in not knowing in which direction “that road lies.” Events today suggest, however, that he and his colleagues would have been well served by a legal GPS, had such a device then been available to the Court, since Mr. Rummel was one of many in the United States who received life sentences courtesy of the three strike laws.
Leandro Andrade, some 30 years later, received two consecutive 25 year sentences in California after stealing 9 videotapes from two different K-Mart stores in a two week period (following other convictions) and, once again, 5 members of the U.S. Supreme Court were comfortable with the application of the three strikes law.
Such historical ruminations are only timely because of a recent report in The New York Times that prisons are now overcrowded to the point where non-violent prisoners must be released for want of adequate space to house all the inmates. A few days after that report was published, a panel of federal judges in California issued a 184-page order requiring California to reduce its inmate population by 40,000 prisoners within two years. The court observed that the overcrowding resulted in the unnecessary death of one inmate per week (not, obviously, enough to solve the problem of overcrowding.) Although not attributing the overcrowding to three strikes laws, the court observed that the 750% increase in California’s prison population during the last 30 years is “the result of political decisions made over three decades, including . . . the passage of harsh mandatory minimum and three-strikes laws. . . . .” Now would be a good time for legislators to revisit the questionable penal policies that may or may not have reduced crime in the country but have undeniably increased the prison population to intolerable levels.