After counseling more than a thousand clients and being involved with tens of thousands of stories, I have learned that there are no absolutes in my business—particularly in the crisis-management side of my business. No rule applies to every case or at all times, not even Sitrick’s Ten Rules for Engagement. There is one rule, however, that comes pretty close: Thou shalt not attack reporters. Make it about the facts.
The urge to shoot the messenger dates back at least 2,500 years to Sophocles and his play Antigone, and Shakespeare warned against it in Henry IV, Part 2. People who have been criticized have been trying to shoot the messenger—the media—ever since: politicians embroiled in scandal, CEOs fighting to hold on to their jobs, companies caught cutting the wrong corners, celebrities. I have seen this strategy deployed many times, almost always with bad results.
Make no mistake: if a reporter has been a paid consultant to a hedge fund shorting your company’s stock, if he is a member of an organization that is criticizing your company in his story, or if he owns a stake in your competitor, you have every right to bring this up with the reporter and, if necessary, go to his editor. But in all my years of doing this kind of work, I have seen this happen only once or twice. More often—though, again, in the minority of cases—a reporter just gets it wrong. When that happens, we bring the error to his or her attention, argue our case, and most of the time ask for a correction or a clarification. If necessary, we will appeal to his or her editor or even, as a last resort (always letting the reporter know we are doing so), have the company’s lawyers write the media company’s legal counsel, but we never make it personal. We stick to the facts. (More on that later.)
Although punching back at reporters personally may feel satisfying in the moment, it almost always is the wrong response. It sends the message that you can’t argue the facts so you call the reporter names. This approach is not going to accomplish anything except to make the reporter more hostile.
Then there is the risk that if you make it personal, the reporter could make it even more so. Reporters are human beings, and like all of us, they have feelings. While they may try to separate their feelings from their reporting, they may not be able to do so. As I said in my first book, Spin, give me a set of facts, and without changing any of them I will give you four different stories ranging from hostile to glowing. It’s one thing to attack reporters’ work, it’s another to attack their integrity, especially when your attack is not based on facts.
Yet many in the PR business fall into one of two extreme categories: those who are too quick to pick a fight, and those who are too afraid to fight at all. They fail their boss or client with either approach. In the first category, PR pros, hoping to impress their clients, respond to unfavorable press or even inquiries by attacking the motives, skill, and honesty of reporters. In the second group, PR people are afraid to push back at all against reporters for fear of souring relations with them.
As I write, I have been involved with a sharp-eyed writer for Forbes on behalf of a client whom the writer doesn’t trust. It’s clear this writer wants to be harshly critical. The client wants me to scream and yell at him. Am I doing that? No, I am taking the facts the writer gives me and knocking them down, one at a time. Fight with facts. A respected reporter once told me that an experienced PR person had demanded he take down a story he had written about a client of hers. “Why?” the reporter asked. “Are there inaccuracies, misstatements of fact?” “No,” the PR person replied, “my client doesn’t like it.” The journalist told me he just hung up on her without saying another word.
The fallout from a reporter-bashing strategy can be damaging. By the time my firm shows up, the client can be in an all-out war with, say, the Wall Street Journal, played out every day in front of more than two million readers in print and online. The PR people start out refusing to comment entirely (violating Rule 9 of my Ten Rules), then they begin to respond testily, only to get quoted saying defensive or threatening things like, “That question is slanderous,” when, in fact, it was not.
Then the PR staffers escalate their complaints to the reporter’s editor, then to the editor’s bosses, not refuting the facts but personally attacking the reporter’s integrity and professionalism. Asked for specifics, they can’t provide anything meaningful. Simultaneously, they set up a website repeating the same comments they made to the editor, including the attacks on the reporter’s professionalism and integrity. In one case, where my client’s PR team had gone on the offensive against a reporter at a major national publication, when I met with his editor’s editor whom I know well, she told me, “All they did was call him names, they didn’t challenge a single fact.” In short, it made things worse.
In my practice, I have seen this conflict spiral out of control quickly, and the company, instead of working to correct the inaccuracies of a story, gets consumed with arguing about the bias of the reporter. When I ask what they base their charges of bias on, they respond that the stories are negative. But what is the evidence of the reporter’s or editor’s bias? Their answer: the stories are negative!
Sometimes I arrive at a client’s office and the PR advisors there will tell me something like I should be confronting the top editor and demanding that she “do her job.” Really? And what is this supposed to accomplish, other than making her angry? This strategy, which is doomed to failure, is a perfect example of why I have been saying for years: most PR people are incompetent—at least in dealing with high-stakes media situations.
I witnessed the effects of alienating a reporter and her editor shortly after I ventured out to form my own firm in 1989. Roy Disney’s and Stanley Gold’s Shamrock Holdings, making an unsolicited bid to acquire Polaroid, was taking a beating in the press both nationally and in Polaroid’s hometown of Boston. “They’re calling me ‘Roy the Raider,’” Disney told me at the time. Brought on board to develop a communications strategy and deal with the media, I offered the reporter covering the story for the Boston Globe an exclusive interview with Stanley Gold, Shamrock’s CEO, who would tell her why he wanted the company and what his plans for it were. She lit into me in response, yelling at me and demanding an interview with Stanley Gold. Once she had calmed down, I reminded her that was what I offered at the onset of the call. “We’ll even come to your office to do it,” I said.
I learned from the reporter that Shamrock’s other outside PR people had complained to this reporter’s editors about her coverage and demanded that she be removed from the story. Her editors had complied, only to reconsider and put her back on it. Of course she was upset with my client! We won her over by treating her as a professional and, most importantly, giving her what she wanted—an interview with Stanley Gold, in the Globe’s offices, no less. Stanley was vintage Stanley: the story was a ten on a scale of ten and, magically, the paper’s ongoing coverage dramatically improved.
Fighting Back Without Making It Personal
As you probably know by now, I do not believe in making it personal, even when I feel the media has stepped over the line. I believe, in fact, that it is counterproductive.
The case that follows will demonstrate how you can fight back without making it personal. If you stay focused on the facts, you can protect your business and your reputation when the media comes calling with a “hit piece.”
Metabolife, whose herbal weight-loss supplement drew regulatory scrutiny in the late 1990s, came into the gun-sights of ABC’s 20/20, which was preparing a sensationalistic piece suggesting that the product was endangering lives. My partners and I discovered that the producers not only had the facts wrong, but had committed what we believed were numerous breaches of journalistic ethics. After going over their heads (and telling them we were doing so) and getting no relief, we decided we had no choice but to call the public’s attention to the unethical practices of 20/20, making the reporting tactics of ABC News a subject as central to the story as the program’s focus on Metabolife—if not more so. More than that, we would set a precedent for crisis response using the Internet and the multimedia capabilities of what was then grandly called the World Wide Web.
I had sensed early on that in the Internet age, every company could be a media company, with its own channel to reach its particular audience. In response to various questions about our client and its products, we had sent the 20/20 producers thousands of pages of documents supporting the efficacy and safety of our client’s product, Metabolife 356, countering their assertions with an arsenal of facts. To no avail.
Rather than wait for 20/20 to air a damaging story and respond only later, we preempted it—and shocked the media world—by posting, online, the entire unedited video of the 20/20 interview with the Metabolife CEO before ABC itself could air the story. And we made sure the world knew why we were doing this. We wanted ABC News to do what we believed it should have done from the onset: to include the relevant facts in its story. And as you will see, we were enormously successful.
By the time 20/20 went to air, the producers, after weeks of refusing to bend at all, balanced the story with several key concessions that Sitrick And Company had fought for fiercely. In the end, we provoked a media backlash that shifted the story from one theme—was Metabolife 356’s key ingredient, ephedra, dangerous—to another—was ABC News fair? Did 20/20 unfairly tarnish a brand that was helping people lose weight?
We relied in particular on five of my ten Rules for Engagement:
Rule 1: First, get the facts.
Rule 3: Act preemptively.
Rule 6: Social media are often a means to an end.
Rule 7: If you don’t tell your story, someone else will tell it for you.
Rule 8: Put your opponent on the Wheel of Pain.
My firm had previously tangled with ABC News in December 1996, on behalf of Food Lion. Four years earlier, Primetime Live had aired a twenty-minute “exposé” of unsafe food-handling practices at the grocery store chain. Just before open arguments were to begin in the resulting lawsuit, Food Lion hired Sitrick And Company.
I have recounted this story in Spin. Two ABC producers who lied about their job records in applying to work at a Food Lion store secretly filmed their fellow employees. Food Lion sued for misrepresentation and fraud, the statute of limitations having already run for libel.
In the trial’s discovery phase, Food Lion lawyers had uncovered tape from the cutting-room floor that contradicted the truncated snippets the program had used in telling the story. The segment had aired video of one worker questioning the freshness of some chicken breasts but omitted that her manager told her to throw them out, and she did. The segment also showed workers slipping on a supposedly grimy floor, yet the outtakes revealed that they were slipping on soap bubbles, not grime. I wrote in Spin,
We would seize the momentum from ABC by redefining the issue. When the network insisted that Food Lion’s lawsuit was an attack on all journalism, we’d simply ask reporters, “Hey, would your editor let you get away with the stuff those guys did?” Invariably, the answer was no.
ABC lost the case, and the jury awarded Food Lion $5.5 million in punitive damages for fraud, trespass, and “disloyalty.” The stunning award would be reduced by the trial judge and all but wiped out on appeal, but ABC lost decisively in what in some ways is the more important court—the court of public opinion. Even other leading media voices objected to ABC News’ techniques. “By preempting the situation—specifically, by acting aggressively to change the nature of the debate by focusing on the facts—we had prevailed over a much more powerful opponent,” as I put it in Spin.
Sitrick And Company had started working for Metabolife before the producers at 20/20 drew a target on the company. At the time, Metabolife’s bigger concern was a crackdown by the Food and Drug Administration.
A year before we were retained, the FDA had issued a warning about the Chinese herb ma huang, or ephedra, the main ingredient in the company’s sole product, Metabolife 356. Now the FDA was proposing a ban on products containing eight milligrams or more of the herbal stimulant and stricter labeling for anything containing less. These regulations would wipe out Metabolife’s business.
Metabolife’s founder and CEO had started the company with a fifteen-thousand-dollar loan, selling 4,752 bottles of Metabolife 356 in its first year. He had devised the supplement, based on traditional Chinese medicine, to help his cancer-stricken father. Three years later, Metabolife sold more than nine million bottles, and by its fourth year in business, the company was on track to sell twenty-two million bottles, or two billion tablets, and rack up $900 million in revenue. It was sold in more than 1,200 retail locations and by more than fifty thousand independent sellers.
That roaring success caught the attention of the FDA. Back when ephedra was merely an obscure product sold in indie health-food stores, no one in the FDA cared much. Metabolife came onto the FDA’s radar screen only after it had fifty thousand independent reps selling it and millions of people consuming the herbal remedy daily, racking up hundreds of millions of dollars in annual sales. By 1999, when Sitrick And Company entered the case, Metabolife 356 had been on the market for four years with billions of servings consumed safely in the U.S.
Counting other products containing this natural herbal extract, ephedra had been used for decades by millions of people in the United States and for centuries in China. The FDA based the proposed ban on eight hundred adverse event reports (AERs) for all types of ephedra products sold by a wide range of makers over a four-year period, but that was a clinically insignificant number given the many millions of people consuming ephedra in various products. More than 70 percent of those reports, moreover, had no medical records, which is why the U.S. General Accounting Office (since renamed the Government Accountability Office) would later say the FDA lacked sufficient medical evidence to support its proposed ban of ephedrine.
Tony Knight, a partner in the firm and a former twenty-five-year veteran journalist with extensive knowledge about the supplement industry, reviewed the FDA’s approach and viewed it as questionable.
For example, the FDA had not evaluated the AERS to ensure they were valid and medically reliable. There was no way to be certain that a health event was related to the supplement that was taken. In many reports, there was evidence that the health event was unrelated to the supplement. The AERs included cases where a gunshot suicide, a drunk driving auto fatality, and a store clerk shot and killed in a robbery were listed as ephedra deaths. Purported injuries included medically impossible claims that ephedra caused multiple sclerosis or goiter.
The FDA used just thirteen adverse event reports as the basis for proposing ephedra limits, but the treating physicians involved with three of the thirteen adverse events said there was no connection between the event and the dietary supplement in question.
The industry brought all of those highly relevant and compelling facts to light, but the media had a field day, reporting over and over again that the FDA had received more than 800 AERs that included heart attack, seizure, stroke, and death.
News reports that the FDA is investigating a company’s product can do millions of dollars of damage instantly to a brand, scaring off customers and, in the case of a public company, turning off investors. Most seriously of all, the publicity can set off a swarm of trial lawyers looking for clients for class-action lawsuits molded to the FDA’s concerns. This last battlefront was almost guaranteed to open in the Metabolife flap.
The FDA, we felt at the time, might be targeting Metabolife as part of an effort to extend its regulatory reach to the herbal industry. The FDA had lost a bid to kill the law passed by Congress requiring it to develop a new and separate regulatory framework for dietary supplements. Rather than develop such a framework, some observers said, the agency was out to show Congress it had made a mistake. Ephedra and Metabolife were target number one.
Yet there was no upside to pointing out this hidden agenda. When the FDA is at your door, you have to answer one question: is your product safe? If it isn’t, nothing else matters. No one cares that the FDA was trying to expand its turf by making an example of Metabolife.
Metabolife came to us hoping to mount a public campaign to counter the one the FDA was waging against Metabolife. The agency was touring cities in peak weight-loss season (in January, after the holidays, and May, as spring unfolds, and June with the advent of bikini weather), setting up a hotline to collect complaints about the supplement and briefing local reporters on the dangers of ephedra. Each visit by the FDA prompted the local press, especially TV reporters, to deluge Metabolife with calls, producing a raft of stories about the supplement’s safety.
The FDA’s barnstorming struck Tony Knight and me as unreliable at best: how could callers to telephone hotlines be trusted to accurately report what they had taken and to know what the medical effects were without having seen a doctor? Was there any vetting of these complaints for accuracy? To us the entire effort seemed flimsy and unverified.
At the same time, Metabolife’s CEO explained to us that he actually had sought the FDA’s oversight of the industry, proposing a set of rules early on in an attempt to win over the agency.
Getting the Facts to Mount a Defense
I dispatched Tony Knight to review medical studies, company materials, trial data, press accounts, and more so we could refute the FDA’s allegations. Tony is one of the best researchers I have ever worked with, and I knew that he would quickly know more about this subject than most so-called experts. His work enabled us to assemble a fact-based campaign based on unassailable science and history.
We showed that various physicians over many years had said ephedra was safe and that millions of people had been ingesting the herb for thousands of years in China. Millions more people had taken an over-the-counter synthetic pharmaceutical, ephedrine, a concentrated form of the active ingredient found in the plant, in much larger doses than the FDA had approved. Our research also showed that far more patients were sent to the emergency room because of aspirin than because of ephedra.
We also collected customer testimonials, which was easy because so many people found the product effective for weight loss. When we responded to media inquiries with customer interviews and a doctor’s statement that Metabolife 356 was reasonably safe at recommended doses and when used as directed, we neutralized much of the attack on the product.
Yet we were fighting what seemed to be an unending battle. At first we were responding to one story a week, then a few stories per week in various places, and eventually we were dealing with two or three stories per day. One of the toughest was a three-part series aired on ABC’s Boston affiliate, WCVB-TV. We had gone back and forth for weeks with the reporter, who also had her own consumer-affairs show on the local cable system. We gave her research papers, independent trial results, and other data to counter the FDA’s anonymous, anecdotal hotline reports. The series, however, opened with assertions by a physician, George Blackburn, that Metabolife could cause death. We struck back on day two of her report with a fiercely worded press release denouncing the doctor’s “grossly misleading and irresponsible” statement, which had “grossly distorted the medical facts.”
Our client promptly sued the station, its owner, a Hearst Corporation subsidiary, the reporter, and Dr. Blackburn, charging each of them with defamation, slander, trade libel, and intentional and negligent interference with “prospective economic advantage.” The lawsuit pointed out that Dr. Blackburn was on the payroll of a Metabolife competitor and had taken a grant from the maker of a rival diet product. These conflicts of interest should have disqualified Dr. Blackburn from appearing in the story, or at least should have been disclosed.
Just ten days after Metabolife sued ABC’s Boston affiliate, 20/20 began looking into the product, its interest piqued by the local station’s report and the lawsuit, as ABC officials later told the media. Metabolife’s CEO thought he smelled retaliation.
The producers at 20/20 were difficult from the start. They claimed to be doing a story on all ephedra products, not a story targeting Metabolife in particular. We asked what other companies they were talking with and who else was being featured. They wouldn’t tell us. We suspected that there were no other companies, but it was clear that they were going to do a story with or without our participation, and to me that’s not a contest. It is my belief that you are almost always better off engaging (that doesn’t necessarily mean providing your client for an interview), at least until you understand what the story will say.
After a fair amount of back-and-forth with 20/20’s producers on the scope of their story and the information they were seeking, they demanded an interview with Metabolife’s CEO. I asked if they were going to air an interview with a physician to talk about health and safety concerns about the product. They said yes. I replied if they were talking about health issues, they should speak with our client’s chief medical officer. They said no, they wanted our CEO. I told them I was not going to have a business executive debate a medical doctor on health and safety issues. If they had an MD, then we must have an MD, the company’s chief medical officer. After some resistance on their part, they agreed that the CEO and the company’s chief medical officer would appear together in the interview, with the physician addressing any medical issues that came up.
We spent months providing information and materials to 20/20. We answered the producers’ questions and provided them with several boxes of independent research demonstrating the safety of ephedra, the health benefits of even modest weight loss, and extensive third-party studies on the safety and efficacy of pharmaceutical ephedrine. We sent them a list of doctors who had recommended Metabolife to their patients. We pointed out that the General Accounting Office had just issued a report critical of the FDA’s handling of the AERs in its ephedra crackdown.
The GAO said the FDA had “not evaluated the reports to be valid and medically reliable.” (In non-bureaucrat-speak this means they evaluated the reports to be not valid or medically reliable.) In its tally of supposedly ephedra-related deaths, the FDA had included a suicide by gunshot, an auto accident, and a murder merely because all three victims had recently taken an ephedra product. The FDA also included “medically impossible claims that ephedra caused multiple sclerosis or goiter,” the report revealed.
In all, the agency had used only thirteen valid AERs as the basis for proposing limits on ephedrine doses. In three of these cases, the treating physicians saw no connection to any dietary supplement. The FDA didn’t even try to determine if, in fact, those thirteen adverse events were caused by supplements containing ephedrine alkaloids.
In releasing the GAO report, the ranking Democrat on the House Committee on Science said, “I would suggest that FDA withdraw the proposed rule, do their job right and see whether we can come up with a rule that everyone can support grounded in real science and reliable data.”
Dueling Cameras
Undeterred by the GAO report, the 20/20 producers continued to pursue the Metabolife story. They wanted to set a date to interview Metabolife’s CEO and, however reluctantly, they had agreed to include the company’s chief medical officer. I advised the CEO that he should grant the interview (with the physician). The CEO wanted to videotape the interview to show it to distributors and employees. We hired our own videographer. We gave 20/20 our video feed and the show’s crew provided us with an audio feed.
To this dueling-cameras setting, the Metabolife CEO added a nice touch: he insisted the interview with 20/20 be taped at a friendly location—the gymnasium of his high school alma mater. The idea had a homey, appealing quality. Reporters, in their lust for a great story, can forget a company is just a bunch of real people with real ambitions and real feelings; this would remind them and the viewers of that.
And so on September 9, the 20/20 producers set up their cameras in the high school gym, while hundreds of students and Metabolife employees streamed in and filled the bleachers, ready to cheer on their hometown hero. It felt and looked like a pep rally.
The interview was as confrontational as I feared it might be. A correspondent known for his anti-business reports (he used to do “shame on you” segments about customer rip-offs) put the Metabolife CEO on the defensive, at one point dramatically revealing that 20/20 had talked to a doctor who had raised serious questions about the safety of Metabolife, saying the product could kill you. Nevertheless, the CEO held his own, coming across as calm and likeable under fire and citing research showing his product was safe and effective when used as directed.
In the ensuing weeks, I became alarmed by the behavior of the 20/20 producers and felt we might have to take counter-measures. Two weeks before the story was set for broadcast, the segment producer asked Metabolife to respond to the claims of a woman on a website run by a trial lawyer looking for plaintiffs. The patient claimed she had suffered a seizure as a result of taking Metabolife 356, but the producer admitted she had seen no medical records, that no lawsuit had been filed against the company, and that no complaint had been filed with the FDA or with Metabolife. I couldn’t believe such a flimsy case might be cited on the air—it was irresponsible on its face, in my view.
Then Tony Knight turned up shocking information about the physician the ABC correspondent cited as saying that “the product could kill you” and whom 20/20 was going to feature as an “expert witness” on the broadcast. Turns out he had been the lead author of a paper reporting positive results in a small clinical trial that Metabolife had funded at one of Harvard University’s teaching hospitals. Though this physician, from St. Luke’s Hospital in New York City, hadn’t done any of the main research, he was a published author, and using his name enhanced the paper’s chances of acceptance by a medical journal. And as recently as four months before the 20/20 report was to run, this doctor had said of ephedra in the Washington Post, “It definitely works,” adding that Metabolife was safe when used as directed and that he wouldn’t hesitate to recommend it to most patients. So why was this doctor now getting ready to trash my client on 20/20? Tony found out that he was on the board of science advisors for Slim-Fast, a Metabolife competitor. A star witness of 20/20’s story had a clear conflict of interest.
When we confronted the producers with this discovery, they said they didn’t think it would affect his objectivity or opinion and saw no reason to disclose this information to the audience. I was flabbergasted. It was clear we were facing a “hit piece,” and we had to take drastic action.
With my two partners on the case—Tony Knight and Lew Phelps—I called my brother David, a top intellectual property lawyer, and asked him if we owned the rights to the video footage Metabolife had taken. If we hired the videographer, if 20/20 exchanged its audio feed for our video feed, and if 20/20 knew we were filming, then yes, we owned it. Knowing that Metabolife’s outside lawyers were on the conservative side, I told David I needed a legal opinion. He asked when. I said in forty-eight hours. He told me that was impossible. “I’m calling Mom,” I responded. He chuckled and said he would do it.
Thinking Outside the Box
Tony, Lew, and I then got Metabolife’s CEO and its outside lawyer, a former federal prosecutor, on the line, and within moments I was telling the room: why don’t we put the entire seventy-minute video of the interview on the Internet—before 20/20 can get its story on the air? It has to be unedited and have the time stamp running. “Before you say anything,” I told the outside lawyer, “my brother is an experienced intellectual property lawyer, and we will have a legal opinion in forty-eight hours saying we own the rights to the videotape.”
I explained that we would include links to the supporting documentation that we had provided to ABC News—all the studies, data, and independent reports showing Metabolife is safe, even a link to the doctor’s statement in the Washington Post and his photo on the Slim-Fast website. Then I suggested that we take out a full-page ad in the New York Times exposing ABC News’ violation of journalistic standards to its peers. I told the team that the day before the ad ran, I would contact the Wall Street Journal—a “Lead Steer”—to generate nationwide coverage of our campaign.
This will make it harder for 20/20 to distort or ignore certain facts, I explained to the group; the world will be able to see what was cut and what was kept. It will pressure the producers to be honest and transparent by drawing attention to their techniques. Of course, it also will show that our product is safe and effective, but by making the methods of 20/20 the focus, we can preempt their story with our own.
The company’s lawyers initially didn’t exactly love the idea, one of them predicting it would prompt ABC to punish us. I responded that I wasn’t sure how it could get much worse. What are they going to do, put a hit on us? I was confident this would force the producers to change their story. After the Journal story ran, we would send the ad and press release to every TV critic for every newspaper in the country, and the people at 20/20 would have to go out of their way to at least appear to be fair.
The Metabolife CEO wholeheartedly agreed with me, and his willingness to fight ABC was a testimony to his belief in the safety of his product. After all, we would have to post the entire unedited interview online—warts and all—for everyone to see. I felt it was critical that we not edit the tape at all. The public needed to know that Metabolife was playing it straight, as opposed to the truncated version they would see on 20/20.
As we began to implement our plan, I awoke in the middle of the night with another idea—let’s try to buy a commercial midway during the 20/20 airing of the Metabolife story with a silent, scrolling message asking viewers to go to our website to vote on whether the story they had seen thus far was fair. The nightstand next to my bed holds a notepad and pen for these momentary epiphanies, and I scribbled down this idea and tried to go back to sleep.
I knew this could work for us in either of two ways. If ABC refused to run the commercial, we’d have a story on the rejection, and if ABC accepted the ad, so much the better. We’d reach an audience of millions with our message and generate still more news coverage of our fight against 20/20.
A Multi-Media Campaign
And so it was. We launched a new website (newsinterview.com) and ran full-page ads in the Times and the New York Post. The stark, unadorned ad led with an all-caps headline:
SEE THE COMPLETE UNEDITED FOOTAGE OF AN INTERVIEW BY ABC-TV’S “20/20” BEFORE THE SHOW AIRS
The copy explained why Metabolife resorted to this move (“So when the segment is aired by ABC you can compare what is actually broadcast to the full interview and other important information posted on the web,” and “so that you can evaluate the experts ‘20/20’ relies upon in its story. . .”). The ad also fully mapped out the criticizing doctor’s conflict of interest and called out a second doctor with similar conflicts, concluding, “Metabolife supports vigorous debate and public scrutiny but it should be open and honest. Because of Metabolife’s concern that the ‘20/20’ story may not report the facts accurately, it has posted the entire, unedited interview on the web.”
We put out the press release on our big reveal at one o’clock in the morning. The ad ran but only after giving a heads-up exclusive to the Wall Street Journal, which would run it online before our news release was issued and publish it in print that morning on the front page of the second section under the headline “Diet-Pill Maker Battles Report on Web Before it Airs on TV.”
The Journal article sparked hundreds of follow-up stories mainly questioning the fairness of the 20/20 story, not the safety of the supplement. The story spread across the country—the New York Times, Time magazine, two major stories in Newsweek, coverage in nearly every major newspaper across the country. Fox, CNN, and PBS covered it extensively. The three major broadcast networks stayed away, however.
We also aired commercials on 1,500 radio stations, urging listeners to check out our website. The $1.5 million ad spend sparked multiples of that in news coverage, as hundreds of publications covered the story of our fight. In the opening days, the website drew 1.1 million hits, way better than we had expected.
Just over a week later, 20/20 aired its story on Metabolife. I watched at my home in Los Angeles, hosting a few colleagues, family members, and reporters so we could learn, in real time, how the story ended up. Barbara Walters opened the program, saying,
I’m glad you could join us, because tonight we have the report that’s been causing all kinds of talk. A four-month investigation into the diet herbal supplement called Metabolife. Maybe you take it, or maybe you know someone who does, because so many of us want to lose weight, and this seems like a miracle pill. But, boy, is Metabolife controversial. So you won’t want to miss what our investigation uncovered.
Cut to video of the Metabolife CEO’s home crowd in the high school gym.
To my delight, the story started off with fast bites from two young women praising the product and saying they lost ten or fifteen pounds by taking Metabolife. This, after the 20/20 producers had rebuffed our entreaties to interview people who had used the product successfully.
Then came two doctors critical of Metabolife, the second one being the physician previously quoted in the Washington Post as saying it was safe and he wouldn’t hesitate giving it to his patients. Now he said, “We did not say it was safe. These products may be safe in some people, but not all people. . . .” Well, yes, as can be said for all medications and supplements, right? There was no mention of his statement that it could “kill you” or that he was a Slim-Fast advisor.
The segment included a sound bite from Dr. Robert Stark, whom we had urged the show to consult, though they had refused to do so before our ad and the subsequent media onslaught. Dr. Stark said, “This is as safe as—as any other herb or—or dietary products.” There followed a strong statement by Metabolife’s medical director: “We’ve got over four years of experience with our product, millions of people taking billions of servings. If there was a significant health problem, I think we’d know it.”
A Stunning Admission
The correspondent even pointed out that despite the FDA’s criticism of Metabolife, “another government agency [namely, the GAO] has questioned the reliability of those [adverse event] reports and the FDA’s handling of them.” Then came this stunning admission: “Because the agency is still investigating and hasn’t released complete information, there’s no way to say how many adverse events involve Metabolife. Further, no link has been proven between the health problems and the supplements” (emphasis added). That was as close to exoneration as we could get, I felt.
At the end, the correspondent told viewers, “Last week, in an extraordinary and unprecedented move, Metabolife, which had taped my interview with Metabolife’s CEO, took all seventy minutes of it and put it on the Internet.” He continued, “The company took out full-page ads in newspapers, alerting people to the website. The ads also point out that the researcher (the doctor who said the product could kill you), is a ‘trustee of the Slim-Fast Nutrition Institute. Slim-Fast being a competitor. . . .’” This was precisely the disclosure we had urged the program to make and which the producers had previously refused to include. At my house, the celebration was on.
ABC News executives have said we had no effect on the program. Of course not! After refusing to include people who had successfully used the product, it was a coincidence that they decided to include them after our video, the various news stories, and ad ran. After refusing to disclose that the doctor they had chosen as the star critic of the product had a conflict of interest, it was also a coincidence that they ended up making such a disclosure. After refusing to include any physicians or researchers who had found the product safe and effective, again it was just a coincidence they included one in the broadcast. And what about Metabolife sales? In fact, sales of Metabolife increased after the broadcast. Why? Because the facts, as we told them, were on our side.
Another coup came five days later, when PBS’ Newshour with Jim Lehrer covered the Metabolife controversy—that is to say, the reporting practices at 20/20. Metabolife’s CEO appeared, not to debate some doctor about FDA policy or Metabolife safety, but to joust over journalistic ethics with the then-president of ABC News.
In the case of 20/20 versus Metabolife, we were able to reshape the story and balance it substantially, getting the producers to include the facts that we had insisted from the onset fairness dictated they should make. Yet these concessions came only after great toil and sweat and controversy. We were sure never to make our criticism personal, we never named the producers involved and, instead, focused our attacks on the facts or lack of same. Nor have I named the producers or the correspondent here.
Though we had pretty much completed our assignment for Metabolife shortly after the 20/20 show aired in 1999, we continued to work for the company on-and-off for the next couple of years. Roughly five years later, in 2004, the FDA reimposed a ban on ephedra supplements for weight loss. Although over-the-counter drugs with higher doses of concentrated ephedrine were allowed, the FDA said long-term consumption of ephedra for weight loss was not justified based on the known side effects. A federal judge threw out the ruling in 2005. In 2006, the ban was ultimately upheld by the U.S. Court of Appeals.
Metabolife filed bankruptcy in 2005, in the face of a deluge of lawsuits filed by plaintiffs’ lawyers. In 2008, Metabolife’s founder, would plead guilty to lying to the FDA in a letter the company had sent to the agency years earlier; the letter stated in part that the company had “never received a notice from a consumer that any serious adverse health event has occurred because of the ingestion” of the ephedra product. Metabolife maintained that the complaints, received on a company hotline, were not evidence that the product caused serious side effects because the complaints were never substantiated. The company’s attorney said the prosecutors “concocted a hypertechnical violation by taking statements to a regulatory agency out of context.”
The company’s founder served six months in jail, got out, and wrote a book saying he didn’t know about the letter until a couple of years after it went to the FDA—and stating that scientific evidence proved that Metabolife was safe and effective when used as directed. He pointed out that the amount of ephedrine, and the utilization of another active ingredient, caffeine, in these FDA approved pharmaceutical products, far exceed the levels the FDA deemed as unsafe in Metabolife. The book’s title: The Metabolife Story: The Rape of Cinderella.
I believe the company’s founder when he says he did not know of the letter until years after it was sent to the FDA.
Our challenge to ABC, irrespective of what ultimately happened to the company, was that they fairly report all of the facts: the independent studies that showed the safety of the product, as well as the views of critics they were planning to include—and that if they had critics who were receiving compensation from a competitor of our client they disclose this fact to their viewers; we asked that they include a tiny sampling of the millions of people who had safely and effectively used the product, as well as those who may have had a bad experience with the product. It was telling that they were not able find a single person who had a bad experience. The fact is, as our client said in his book, independent studies proved that his product was safe and effective when used as directed. And millions and millions of people had used the product over many many years without an incident.
The ABC broadcast reflected all of the above.