The bad old days of Nemagon.

The following is the original English text of an article I wrote for Dagens Nyheter, the largest daily newspaper in Sweden. The story is about Dole’s attempt to stop the distribution of “BANANAS!*”, a documentary made by Swedish filmmaker Fredrik Gertten that the banana company believes to be untrue. The film is about lawsuits filed against Dole by Nicaraguan workers claiming to have been injured by the company’s use of a pesticide called Nemagon, or DBCP. In 2007, those workers achieved a partial victory against the banana company – but a follow-up suit was dismissed earlier this year after lawyers for the fruit giant offered evidence that the lawyer for the laborers had falsified information (here’s one of many news accounts about the trial’s denouement.)

Here, I explain why I find that “evidence” unconvincing – and why Dole’s suit has roots not just in a century of  banana industry history, but also in a business model that persists to this day. For background on the issue, have a look at the filmmaker’s timeline or at Dole’s entire page on Nemagon. More links below.

THE BURNING OF THE LA CEIBA, HONDURAS TOWN HALL in 1903 was the work of more than an ordinary arsonist. Gone in the flames were birth records, marriage certificates, and hundreds of other municipal documents. But the most valuable files lost were property deeds. All of a sudden, what was owned in the town and the fields around it was an open question. La Ceiba was surrounded by banana plantations, planted by an American businessman named Joseph Vaccaro. How strange it was, some residents said, that Mr. Vaccaro had grown bananas on land owned by others, promising a share of profits, and now there was no proof that the people he’d made commitments to owned anything at all. Stranger was that, following the inferno, many parcels into the hands of Mr. Vaccaro and his company, Standard Fruit.

The La Ceiba episode is little remembered. But I couldn’t help think of it as I stood on line at the Los Angeles International Film Festival last month, forced to read a carefully worded disclaimer in order to gain admittance to the documentary I’d come to see. The film told the story of Dole – Standard Fruit renamed itself in 1991 – and the company’s use of a toxic pesticide in the 1970s. The main character was an attorney representing Nicaraguan workers who claimed to have been injured by that pesticide, and their 2007 lawsuit against the banana company. The lawsuit – and the film – ends with the workers winning a $5.8 million jury award.

Standard Fruit founder and banana bad-ass Joseph Vaccaro; image: Louisiana State Archives

Two years later, a second banana case, filed by the same attorney, was dismissed after Dole investigators presented evidence that the attorney had committed fraud. At the film festival, it didn’t seem to matter that the accusation was being disputed, or that the case in question was not the one the film documented, or that the dangers of the chemical the banana workers were exposed to was well-established. Not even the filmmaker’s record of integrity – let alone responsibility a global event dedicated to the expression of ideas and creativity might have to those higher ideals – prevented the terrified festival from removing Fredrik Gertten’s “BANANAS!*” from competition.

Since then, Dole has sued Gertten, and if it succeeds, it is unlikely that the film will ever again be seen in America. Such an action leaves no smolders, no charred remains. But if if you understand the banana industry, you’ll understand that fire – real and virtual – is part of the business model.

YOU’VE JUST PAID FOR A BUNCH OF BANANAS. What you’ve purchased is the most popular fruit in the world, and the cheapest, in nearly every country they’re sold. This hasn’t happened by chance. Supreme affordability has been the industry’s driving strategy since the first bunches were delivered to an unfamiliar American public in the late 19th century. Companies like United Fruit – now Chiquita – and Standard Fruit had to teach the public what a banana was. Part of getting them to try this strange product was making it a bargain.

Bananas are a fragile, tropical product. They rot quickly. They are grown oceans from where they are sold and eaten, and need to be shipped under refrigeration. Like no other fruit, bananas are heavily advertised and marketed. In other words, bananas should be expensive.

The best place for the banana companies to save money was where the fruit was grown. Joseph Vaccaro understood this. So did the future CEO of Chiquita, Sam Zemurray, who took over the entire nation of Honduras in 1910. These actions were just the beginning. Often with with the help of U.S. troops, banana companies intervened in Latin America more than twenty times between 1900 and 1960.

Concentrating the base of profit into a single-product industrial supply chain is dangerous. Anything that threatened to upset the equation and raise banana prices had to be crushed.  In 1954, when Guatemalans elected a president who promised land reform, Chiquita – terrified that the movement would spread through Central America, engineered a CIA coup, ushering in three decades of instability that led to the Mayan genocide of the 1980s. The bananas kept growing.

Even nature – if it poses a threat – must come under massive attack. 1,000 varieties of banana grow worldwide, but the business model allows just a single breed to make up the thirty billion kilograms (sixty-six billion pounds) of fruit sold each year, creating a supply chain as primed for economy as the one that brings us hamburgers at McDonald’s. But this global plantation of identical twins means that when disease hits, it spreads far and fast, raising prices, wrecking the equation. The banana breed originally introduced to the world, called Gros Michel, was actually wiped out by such a disease. As farms were left useless by the blight, more and more land had to be taken. Finally, there was nowhere left to grow the fruit, and the industry replaced Gros Michel with today’s variety, called “Cavendish.” The changeover was so expensive that Chiquita, already weakened by the crisis, teetered on the verge of bankruptcy for years afterward (today, a new strain of the same disease is killing Cavendish – and a new banana land rush is underway in Africa. The industry claims the two are unrelated.)

In the 1970s, banana companies fought a root-destroying worm with a chemical called  Nemagon. It was used throughout the world, but it was Dole’s actions in Nicaragua that were the basis of the 2007 case and Gertten’s film, which tells the story of workers who claimed to have been left sterile by Nemagon. The workers are brought to America by Juan Dominguez, a Los Angeles attorney known for winning awards for clients injured in car wrecks. The trial (and the film) ends with some workers receiving awards, and some not, but the verdict is strong enough for Dominguez to continue with a second suit. That suit was continuing this past April, just as Gertten was preparing his film – completed a few months earlier – for the festival debut.

Our banana: the Cavendish. Image from hobotraveler.com.

THE SELL-CHEAP STRATEGY IS AS FRAGILE AS EVER. The question is whether the industry is still willing to go to desperate lengths to preserve it. The answer – at least sometimes – appears to be yes. In 2007, Chiquita was fined $25 million by the U.S. justice department for making payments to Colombian paramilitaries. The company said the money was to protect workers, and not because the cost of land and labor are generally cheaper when regulated by force of arms. Dole is now under investigation for similar actions.

In 1992, a damaging report appeared in the Cincinnati Enquirer, the daily newspaper of Chiquita’s headquarters city. Chiquita sued after it was revealed that the reporter who wrote the story had illegally hacked into its corporate voice mail system. The newspaper retracted the entire report, fired the journalist – who later pled guilty to theft –  and paid the banana company $14 million, even though the facts of the story were not in dispute.  For the next decade, the paper didn’t publish a single critical story about the banana company. But that wasn’t enough; Chiquita demanded – and received – control over the paper’s newsroom for well into the next decade, according to a report published in a journalism trade review.

When an individual challenges a banana company, humiliation has been part of the tactics. After Guatemalan President Jacobo Arbenz was overthrown, he was paraded before the press in his underwear. He later committed suicide.

In the film, Dominguez reveals that his strategy is to start by winning a small suits and then build, and build. It wasn’t just Dole he wanted to take down. It was the whole banana industry. He considered the mixed verdict in the first case good enough to continue, but it all came to an end when Dole  presented evidence, gathered  in Nicaragua, that Dominguez’s team had coached witnesses. The U.S. judge dismissed the case with a statement that implied that everything known about banana companies, banana workers, and pesticides was now questionable: “We’ll never know,” she said, “if anybody…was was actually injured.”

That’s false. In Gertten’s film, you’ll see Dole’s CEO, under oath, admit that the company continued to use Nemagon after it knew the chemical was harmful. You’ll see the first jury apparently acting fairly, since it finds for some plaintiffs, and rules against others. You’ll see families and clinics and workers in Nicaragua. Not mentioned in the film  is the fact that Dole paid over $20 million in prior Nemagon settlements, some dating as far back as 1992.

Above: BANANAS!* trailer. Below: Dole’s response.

Success in the Los Angeles Film Festival for “BANANAS!*” would have been a step beyond basic media coverage of a trial in progress. It could have meant distribution on U.S. television. It would have told the story of Nemagon to people in Dole’s home country.  That Dole’s first attempts to stop BANANAS!* from showing came even before the company viewed the film saw isn’t a surprise. I’m encouraged that Gertten is now represented by a prominent free speech attorney in the U.S. I hope – and believe – he will win his case, but more importantly, I think it is important for Americans to see the film, and soon. In the meantime, they need to known that a banana company – of all things – doesn’t trust their judgement enough to watch an hour of footage it sees as unflattering and decide for themselves who and what is credible.

As far as the bigger case, there are several questions. The first is why the judge accepted the conclusions of Dole’s investigators, but rejected those of Dominguez’s. In Nicaragua, it is being argued that there was no difference between the kinds of people the teams were composed of, the types of interviews they conducted, or the evidence they presented. It is important to note that Dole ignored a decision against it delivered in a Nicaraguan court. In fact, starting with the 1992 verdicts, Dole’s Nemagon record in the courtroom has been spectacularly awful. This is a company that either did what it is being accused of, or has the worst lawyers a corporation has ever hired (this should encourage Gertten.)

Despite what Dole would like the public to believe, it received no absolution in the 2009 case. The company’s actions weren’t about Nemagon and Nicaraguan plantation workers. Instead, it focused on destroying Juan Dominguez, who is now fighting for his career. It had to prevent a cascade of losses across Latin America that might ultimately upset its business model as it forced banana prices to rise. This serves as a warning to anyone – including those currently suing Dole for alleged pesticide misuse in Ecuador, and even in the case of Colombian families attempting to hold Chiquita accountable for the deaths of their loved ones at the hands of the paid-off paramilitaries – that a challenge could result in huge personal losses.  There’s no better evidence of how much Dole thought was at stake than the price it is attempting to get Dominguez (and Gertten) to pay.

Campaigning: Searches lead to Dole's paid point-of-view

Those stakes are real, but the habits of a century are also involved. In either case, there’s only one way to push the industry toward fairness and more humane policies. Bananas have to stop being cheap. The business model of the banana industry must be rejected by consumers. A new banana market needs to emerge, with multiple varieties of fruit, at varying price levels. It should begin with rejection of corporate bananas, and encouragement of Fair Trade growers to expand into alternate varieties. Adopted at the corporate level, this kind of strategy cold – ironically – insulate the banana companies from their one-banana-fits-all profit dependence. But that old reflex is primed for battle, not innovation. So far, though, the banana giants haven’t figured out how to sue shoppers, and our voices can’t be suppressed. There are too many supermarkets in the world. Even Big Banana can’t burn them all.

More info: “Dole: Behind the Smoke Screen” was published in 2006 by the advocacy group BananaLink and COLSIBA, an umbrella group for banana workers’ unions in Latin America. Here’s a link to an older document – “DBCP: The Legacy” that includes images of correspondence between Dole and the makers of Nemagon, Shell and Dow Chemical. For more on the banana business model, read my op-ed in the New York Times. There’s lots more info available, and a Google search now yields a bonus: Dole wants to be sure that have the chance to hear what it has to say, and is willing to pay to do it. Also: Not long after filing the suit, Dole announced its intention transform itself from what the world’s largest privately-held food supplier into a public one, with an initial public offering of stock planned, most likely,  for 2010.  It isn’t surprising that a company whose value was about to be determined in the open marketplace would strike hard against anyone or anything it saw as a threat to that value.