by Gabrielle Brill, J.D. Candidate, 2021, University of Richmond School of Law

 

Introduction

“It takes 20 years to build a reputation and five minutes to ruin it.”

– Warren Buffett [1]

Social media has dramatically altered everyday life, and nowadays it can take an extraordinary amount of discipline to effectively limit screen time. Over forty percent of people check their phone within the first five minutes of being awake.[2] However, social media use is more than mere habit or addiction: it is changing corporate social activism. Money for social activism is being raised through financial technology programs like GoFundMe, strangers are coordinating boycotts and protests online, and hashtag campaigns like #MeToo and viral videos like the death of George Floyd are elevating awareness of social issues. These new, social media-centric methods are also pressuring businesses to act in the sphere of social justice. Corporate executives used to fear “a bad newspaper story; today, they dread a bad viral video or negative trending hashtag that can hurt their brands or stock prices more than a bad newspaper story.”[3] These bad viral videos and negative trending hashtags are linked to a new phenomenon dubbed “cancel culture.”

This essay explores the recent explosion of cancel culture, its accountability goal, and, as a result, its link to calling for companies to fulfill their corporate social responsibility initiatives and inspiring corporate social accountability.

Defining Cancel Culture

Cancel culture is a “mass online public reaction to perceived wrongs done by an individual or entity by withdrawing support or consumer patronage.”[4] Black users of Twitter created the term “cancel culture” and began using the phrase as a hashtag.[5] The term has exploded in recent years due to conversations arising from #BlackLives Matter, #MeToo, and various other social movements that are pressing for greater accountability among public entities.[6]

The cancel culture phenomenon has been critiqued across the political spectrum. Left-leaning writers, artists, and celebrities referred to cancel culture as an “intensif[ying] a new set of moral attitudes and political commitments that tend to weaken our norms of open debate and toleration of differences in favor of ideological conformity.”[7] On the right, President Donald Trump has described cancel culture as “the very definition of totalitarianism.”[8] However, proponents of the cancel culture movement argue that the online judgments, critiques, and callouts would be best described as “accountability culture.”[9] This accountability culture perspective frames the online criticism as simply making people and institutions in power address their problematic pasts (or presents).[10] The point of this essay is not to argue whether cancel culture as a whole is good or bad, but to note that this accountability lens is being applied to businesses and filling gaps in the corporate social responsibility regime.

Defining Corporate Social Responsibility

Corporate social responsibility (CSR) comprises voluntary actions that businesses take to display commitment to responsibly managing the social, environmental, and economic effects of its operations.[11] These actions are nearly always made in line with public expectations.[12] Businesses often take these actions because consumers and employees demand and prefer it.[13]  Millennials, especially, are lending their support to brands that embrace social responsibility and emphasize community engagement. “88% of millennials expect companies to produce and communicate the results of corporate social responsibility efforts, and 89% of consumers are likely to switch brands to one that is associated with a good cause.”[14] Companies engaging in CSR can attribute 40% of their reputation to CSR work.[15]

Once upon a time, corporations used to be able to remain silent or ambiguous on social issues. But, the evolving role of the corporation and the rise of social media pressure is pushing corporations to become leaders on social issues and social movements.[16] Instead, silence can now cost a company money, and society has an expectation that well-to-do companies will take a stand on social issues. A 2016 Public Affairs Council study stated “more than three-quarters” of companies “experienced increased pressure to weigh in on social issues.”[17] These social issues ranged from discrimination, the environment, education and human rights.[18] Most telling is that from 2013–2016, not a single respondent reported that pressure to weigh in on social issues decreased.[19]

Corporate Social Accountability Versus CSR

Corporate accountability is often used interchangeably with corporate responsibility, but they are not synonymous. Corporate responsibility encompasses voluntary engagement with social issues. On the other hand, “corporate accountability focuses more on establishing institutional mechanisms that hold companies accountable rather than merely urging companies to act toward a socially desirable end voluntarily.”[20] This view of a corporation is in stark contrast to neoclassical thought, where companies should only be accountable to shareholders.[21]

I. Where CSR Fails, Cancel Culture Can Force Corporate Accountability

With widespread access to the internet, the general public now has a means to pressure corporate action on social issues through social media and cancel culture. The current CSR remedies at law often fail to give society the corporate social accountability it is expecting from large companies. Where CSR remedies at law fail, cancel culture has the ability to step in and advocate for corporate accountability until a corporation acts in a way consumers agree with. Again, the point is not whether a use of cancel culture in this way is good or bad. But there is an accountability function to cancel culture that can be applied to businesses when CSR remedies at law fail to uphold societal expectations.

When CSR Fails: Hershey Child and Slave Labor

Dana v. Hershey Company is a great example of how current remedies at law fall short of inspiring corporate social accountability consumers desire today. Hershey pledged nearly two decades ago to cease using slave labor in the manufacturing of its chocolate. Despite this, the Hershey candy company is still benefiting from low-cost cocoa farmed by children in West Africa.[22]

In a putative class action, Laura Dana sued Hershey, claiming Hershey’s failure to disclose that cocoa used in Hershey’s products originated from farms using child and slave labor violated California’s Unfair Competition Law, Consumer Legal Remedies Act, and False Advertising Law.[23] Although Hershey acknowledges child and slave labor is present in its Ivory Coast supply chain, it does not disclose the labor abuses on its product packaging.[24] One of Dana’s main arguments was rooted in Hershey’s corporate social responsibility report, which stated “Hershey has zero tolerance for the worst forms of child labor in its supply chain,” and Hershey’s “supplier code” explicitly prohibits child labor and forced labor.[25] Despite these internal professions and standards, Hershey was shirking public accountability by failing to admit it was a beneficiary of slave labor on its product labeling. The court ultimately dismissed the suit because Dana did not allege any omission by Hershey of a known danger to the safety of customers, therefore there was no duty to disclose.[26] The court declined to decide whether misrepresentations regarding labor practices fall within the California Legal Remedies Act.[27]

Dana v. Hershey Company highlights an important thing about the corporate social responsibility structure: sometimes there is not an adequate remedy at law to ensure that companies are complying with their self-prescribed corporate social responsibility goals. As consumers seek out accountability from businesses of all sizes, the law is not only an expensive but also oftentimes an inefficient remedy for the change consumers are attempting to create. As a result, access to the internet and social media platforms are providing new, free media to critique and hold business accountable for the corporate social responsibility platforms they have adopted as well as encourage corporate social accountability.

When Cancel Culture Achieves Change: Aunt Jemima Syrup

A recent example of people taking to social media to call out a business for failing to uphold its corporate social responsibility platform is the cancelling of Aunt Jemima syrup. In June 2020, singer-songwriter Kirby posted a viral TikTok video exposing the racist roots of Aunt Jemima’s origin and logo.[28] The brand’s origin and logo were based off the song “Old Aunt Jemima” which has origins in minstrel shows and was reportedly sung by slaves.[29] The Aunt Jemima logo began in the year 1890 and was based on Nancy Green. The Aunt Jemima website used to portray Nancy Green as a “storyteller, cook and missionary worker,” but never mentioned the crucial fact that Nancy Green was born into slavery.[30]

The perpetuation of the racist elements within the Aunt Jemima brand was directly adverse to PepsiCo, the owner of Quaker Oats and thus Aunt Jemima’s Diversity and Engagement initiatives within their corporate social responsibility framework. PepsiCo touts itself as a leader in “advanc[ing] diversity and engagement in [their] industry.”[31] However, the Aunt Jemima logo was altered six times[32] before the Kirby TikTok video combined with Black Lives Matter protests across the country led Kristen Kroepfl, Vice President of Quaker Foods (the PepsiCo subsidiary that produces Aunt Jemima) to recognize “Aunt Jemima’s origins are based on a racial stereotype”[33] and drop the brand for good.

Kristen Kroepfl ultimately gets at the heart of why cancel culture is functioning to push companies to hold true to their corporate social responsibility goals. She states that companies “also must take a hard look at [their] portfolio of brands and ensure they reflect [a company’s] values and meet [their] consumers’ expectations.”[34] When companies hold themselves out as leaders in the realms of social justice and activism and then fail to uphold their own corporate social responsibility mission statements, consumers are understandably unhappy. Thus, when remedies of law do not force companies to live up to their corporate social responsibility, when the law does not create a pathway to hold businesses accountable in the social justice space like so many consumers now desire, consumers go to their phones.

In the case of Aunt Jemima, just one day after Kirby’s critical TikTok video went viral, Pepsi announced that it would rename and redesign the 130-year-old pancake brand.[35] Additionally, the Aunt Jemima brand will donate five million dollars over the next five years specifically targeted to supporting the black community.[36] That is the power of cancel culture in the corporate social accountability space.

II. How Should Brands Proceed Amidst Cancel Culture?

To reiterate, there are a wealth of arguments to be had about the overall societal good (or bad) of cancel culture as whole that are much too lengthy for this essay. I do not imply that cancel culture is all “good,” but that cancel culture has an accountability function that can force companies to uphold their corporate social responsibility initiatives without needing to navigate a court of law.

So, where does cancel culture leave businesses cultivating brands? Construction of brand identity and value is amplified by social media. Digital networks allow both invested and disinterested parties to comment, critique, and contribute to discourse surrounding a brand’s meaning.[37] Heading forward, how brands should proceed is easy to say and hard to apply: be authentic!

The first question a brand should ask itself when facing cancel culture is: have the brand’s customers cancelled it? A brand should be acutely aware of its customer base. Cancel culture can make many jump on a boycott bandwagon that never even intended to be a customer of the brand being “canceled” in the first place.[38] A potent example of this are the various boycotts against Chick-fil-A over the years regarding Chick-fil-A’s Chairman Dan Cathy’s opposition to same-sex marriage. Despite these attempts at cancellation, Chick-fil-A still makes more per restaurant than McDonald’s even though Chick-fil-A only operates six days a week.[39] Chick-fil-A’s strong customer base has persevered through boycotts, which makes Chick-fil-A’s need to respond to the social justice criticisms monetarily unnecessary because it is not effecting their customer base as a whole.[40]

Second, brands must become aware of the difference between allyship and appropriation. When a brand is attempting to elevate voices of a community, members of that community should be represented in the decision-making process.[41] A grave example of failing to engage the proper audiences in decision-making processes is the infamous “Jump In” Pepsi commercial starring Kendall Jenner, which used imagery reminiscent of Black Lives Matter protest confrontations with police. PepsiCo’s in-house marketing team advanced the campaign too quickly and failed to properly seek external perspectives from ad agencies, market research, or diverse consumers.[42] The end result was severe tone deafness that offended many and left PepsiCo with a low public perception for nine months.[43] It will be prudent of businesses going forward not only to invest in diverse talent to join in-house marketing teams, but also ensure marketing material is getting properly vetted by diverse consumers.

Third, don’t be a “slacktivist.”[44] Consumers are looking for deeds to back up rhetoric. General or hollow sentiments will not do the job, but directly owning up to mistakes and genuinely expressing a desire to grow probably will.[45] To most effectively express desire for growth, a company should take time to step beyond their own perspective, and process and validate critiques.[46] Businesses should also be wary when attempting to meaningfully participate in social media trends meant to uplift social justice movements. Controversy erupted over the Black Out Tuesday movement on June 2, 2020 as social media users posted black squares as a show of solidarity in response to the death of George Floyd. However, the use of hashtags like #BlackLivesMatter and #BLM in association with the black squares enabled details for Black Lives Matter rallies and other important information accompanied with these hashtags to be buried from activists who needed them.[47] Marketing teams should stay alert and abreast of updates surrounding international social media trends to avoid the potential of hiding crucial information or resources.

Lastly, it would be wise for companies to participate in 24/7 monitoring of online commentary regarding the company, as well as high-profile endorsers of the brand. If the brand is the first to know and the first to act when a public relations crisis arises, a serious boycott attempt can be avoided.[48] This is critical as technology and social media continue to evolve, as it can take a matter of minutes for a negative video, hashtag, or post to go viral.

Above all, do not misrepresent or fail to uphold corporate social responsibility values—don’t just talk the talk; walk the walk. If a business fails to do so, there could be more than a lawsuit at their door. Cancel culture could be there, like a fast food order of accountability, intimidating them to do better.

 

[1] James Berman, The Three Essential Warren Buffet Quotes to Live By, Forbes (Apr. 20, 2014, 5:55 PM), https://www.forbes.com/sites/jamesberman/2014/04/20/the-three-essential-warren-buffett-quotes-to-live-by/ [https://perma.cc/AB4V-XNXA].

[2] Deloitte, Global mobile Consumer Survey: US Edition 4 (2016), https://www2.deloitte.com/content/dam/Deloitte/us/Documents/technology-media-telecommunications/us-global-mobile-consumer-survey-2016-executive-summary.pdf [https://perma.cc/B7U3-D49M].

[3] Tom C.W. Lin, Incorporating Social Activism, 98 B.U. L. Rev. 1535, 1545 (2018).

[4] Heather Fletcher, Cancel Culture is Real – Here’s What Brands Need to Know About It, Target Marketing (Sept. 23, 2019), https://www.targetmarketingmag.com/article/cancel-culture-is-real-heres-what-brands-need-to-know-about-it/ [https://perma.cc/9KL6-RNDL]; see also Christopher Brito, “Cancel Culture” Seems to Have Started as an Internet Joke. Now It’s Anything But, CBSNOriginals (Aug. 19, 2020), https://www.cbsnews.com/news/cancel-culture-internet-joke-anything-but [https://perma.cc/5VUN-HREK] (Professor Anne H. Charity Hudley’s first definition of cancel culture is a public withdrawal of financial support that encourages others to also withdraw support).

[5] Words We’re Watching: What It Means to Get “Canceled,Merriam-Webster (last visited Dec. 18, 2020), https://www.merriam-webster.com/words-at-play/cancel-culture-words-were-watching [https://perma.cc/5QC6-KCPT]; see also Rachel E. Greenspan, How ‘Cancel Culture’ Quickly Became One of the Buzziest and Most Controversial Ideas on the Internet, Insider (Aug. 6, 2020, 8:30 AM), https://www.insider.com/cancel-culture-meaning-history-origin-phrase-used-negatively-2020-7 [https://perma.cc/KPG7-LGFE] (“[T]he phrase ‘cancel culture’ experienced notable growth in 2016 and 2017, particularly on Black Twitter.”).

[6] Merriam-Webster, supra note 5.

[7] A Letter on Justice and Open Debate, Harper’s Magazine (July 7, 2020), https://harpers.org/a-letter-on-justice-and-open-debate [https://perma.cc/X7CX-JSLJ].

[8] Greenspan, supra note 5.

[9] Spencer Kornhaber, It’s Not Callout Culture. It’s Accountability, The Atlantic (June 16, 2020), https://www.theatlantic.com/culture/archive/2020/06/callout-culture-black-lives-matter-adidas-bon-appetit-lea-michele/613054/ [https://perma.cc/6HTP-6CEY].

[10] Greenspan, supra note 5.

[11] Embracing Corporate Social Responsibility: Hearing Before the Comm. on Small Business, 116th Cong. 2 (2019).

[12] Id.

[13] See id. at 1–2; see also Sairah Ashman, ‘Wokeness’ in the Age of the Twitter Mob: How Brands Can Navigate Cancel Culture, Forbes (July 22, 2019, 6:02 AM), https://www.forbes.com/sites/sairahashman/2019/07/22/wokeness-in-the-age-of-the-twitter-mob-how-brands-can-navigate-cancel-culture/#73784f0a56f2 [https://perma.cc/9UEQ-96GZ] (eighty-eight percent of consumers want businesses to help them make a difference and seventy percent of business executives take social purpose into account when deciding where to work).   

[14] Ashman, supra note 13.

[15] Christine Alemany, Marketing in the Age of Resistance, Harv. Bus. Rev. (Sept. 3, 2020), https://hbr.org/2020/09/marketing-in-the-age-of-resistance [https://perma.cc/K24G-HAST].

[16] Jennifer S. Fan, Woke Capital: The Role of Corporations in Social Movements, 9 Harv. Bus. L. Rev. 441, 452–53 (2019).

[17] Id. at 453.

[18] Id.

[19] Id.

[20] Min Yan & Daoning Zhang, From Corporate Responsibility to Corporate Accountability, 16 Hastings Bus. L.J. 43, 44 (2020).

[21] Id. at 44–45.

[22] Peter Whoriskey & Rachel Siegel, Cocoa’s Child Laborers, Wash. Post (June 5, 2019), https://www.washingtonpost.com/graphics/2019/business/hershey-nestle-mars-chocolate-child-labor-west-africa/?fbclid=IwAR0SfSYRgtrZwL2uePdn91Rx9gL6Kjv4Z3fgq_HkvA5U–7zmviqXwyC7zY&noredirect=on&utm_term=.d1e6d2198845 [https://perma.cc/X8SK-NVY7].

[23] Dana v. Hershey Co., 180 F. Supp. 3d 652, 654 (N.D. Cal. 2016).

[24] Id. at 655.

[25] Id.

[26] Id. at 665.

[27] Id.

[28] James Hale, Viral TikTok Video from Black Artist Kirby Prompts Pepsi to Rebrand ‘Aunt Jemima’ Products, TubeFilter (June 18, 2020), https://www.tubefilter.com/2020/06/18/kirby-singer-tiktok-video-rebrand-aunt-jemima [https://perma.cc/US6E-27XX].

[29] Jordan Valinsky, The Aunt Jemima Brand, Acknowledging its Racist Past, Will Be Retired, CNNBusiness (June 17, 2020) https://www.cnn.com/2020/06/17/business/aunt-jemima-logo-change/index.html [https://perma.cc/7XYZ-6QLC].

[30] Id.

[31] Diversity & Engagement Progress at PepsiCo: A Message from Ronald Schellekens, PepsiCo (June 30, 2020), https://www.pepsico.com/about/diversity-and-engagement/progress-at-pepsico [https://perma.cc/AU58-TZ2P].

[32] Jessica Snouwaert, Aunt Jemima’s Logo Has Changed 6 Times and Its History is Rooted in Racial Stereotypes and Slavery, Entrepreneur (June 18, 2020), https://www.entrepreneur.com/article/352060 [https://perma.cc/ ZJL9-GE85].

[33] Hale, supra note 28.

[34] Id.

[35] Id.

[36] Valinsky, supra note 29.

[37] Margaret Chon, Trademark Goodwill as a Public Good: Brands and Innovations in Corporate Social Responsibility, 21 Lewis & Clark L. Rev. 277, 291–92 (2017).

[38] Fletcher, supra note 4.

[39] Matthew McCreary, Chick-fil-A Makes More Per Restaurant Than McDonald’s, Starbucks and Subway Combined…and It’s Closed on Sundays, Entrepreneur (2018), https://www.entrepreneur.com/article/320615 [https://perma.cc/52TA-Y2PL].

[40] It is worth noting that Chick-Fil-A is a closely held corporation. It would be interesting to see if cancel culture affects close corporations and public corporations differently.

[41] Ashman, supra note 13 (Fairy successfully rebranded to Fair for Pride month by implementing key team members who were LGBTQ+, which provided the team with authority on the issue).

[42] Lily Tillman, Case Study: PepsiCo & Kendall Jenner Commercial, Astute (2018), https://astute.co/pepsi-kendall-jenner-commercial [https://perma.cc/N6BG-HPTY].

[43] Id.

[44] Id. (On May 30, 2020, Adidas made an Instagram post that was merely the word ‘Racism’ with a line striking through it. Consumers found this display of ‘solidarity’ to be lukewarm and insufficient.)

[45] Alemany, supra note 15.

[46] Id.

[47] Zoe Haylock, How Did #BlackOutTuesday Go So Wrong So Fast?, Vulture (June 2, 2020), https://www.vulture.com/2020/06/blackout-tuesday-guide.html [https://perma.cc/6HXL-QKTH].

[48] Fletcher, supra note 4.

 

 

 

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