Dumb legal advice and the dissolving mouse

Lawyers are generally supposed to act in the best interests of the client. But the case of the popular soda drink which allegedly dissolves mice is a reminder that every now and again legal advice seems to contradict the most basic rules of effective issue and crisis management.

A few weeks ago a Judge in Wisconsin granted extra time for Pepsi to respond to a customer alleging he found a dead mouse in a can of its caffeinated drink Mountain Dew. Contamination claims must be one of the commonest crisis risks faced by food companies everywhere. However it’s the response in this case which raises eyebrows.

The dead mouse could not have been in the can, the company claims, because Mountain Dew is so acidic it would have destroyed the tiny rodent’s body and turned it into “a jelly-like substance.”  It might be hard to believe, but the company’s legal strategy is apparently to tell the world  that their expert says Mountain Dew can actually dissolve flesh. That must have pleased the marketing department!

It might be one of those “only in America” stories, but it raises the obvious question, where were the issue management professionals when someone suggested this was a good idea? Or alternatively, how come the issue and PR experts WERE giving good advice, but it was ignored or over-ruled? 

Lawyers traditionally focus on the legal niceties and winning the case. But sometimes that flies in the face of common sense management of the issue and damages the promotion of brand and corporate reputation. Although the Mountain Dew case won’t be fully heard until well into 2012, the dead mouse was allegedly found as long ago as 2009, which was the same year another food company allowed legal advice to override reputation risk management.

That was when the makers of Pringles decided to publicly declare that their famous potato chips are not actually a potato product. In Britain, most food is exempt from VAT, but potato chips and similar products are taxable. So manufacturer Proctor and Gamble went to court to argue that Pringles “don’t look like a chip, don’t feel like a chip and don’t taste like a chip.” Their lawyers helpfully explained that the stackable slices are only 42% potato, with the remainder made up of oil, wheat starch, maltodextrin, salt, rice flour, and dextrose. A favourable decision would have saved the company about £20 million a year in taxes.

But after going through three levels of the British legal system, the Supreme Court of Judicature ruled that Pringles ARE legally potato chips. With typical British under-statement, Lord Justice Jacob insisted the question was “not one calling for or justifying over-elaborate, almost mind-numbing legal analysis.” But he might equally have asked, who thought it was a clever idea to allow a “mind-numbing” legal strategy to potentially damage the reputation of a highly profitable brand in news reports which appeared round the world.

The proper role of issue and crisis managers is to assess and manage risks in the broader interests of the whole organization, not just the money men and lawyers. As Richard Levick says, Lawyers may sit near the front but they don’t drive the bus.


About managingoutcomes

Issue and crisis management expert
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