by Marion Nestle
Nov 5 2009

Kellogg’s withdraws IMMUNITY claim!

Kellogg’s says it will phase out boxes of Cocoa and other Rice Krispies cereals with the IMMUNITY claim on them.

Withdrawn, November 4, 2009

Withdrawn, November 4, 2009

The Immunity claim falls into an FDA regulatory grey area.  It is a structure-function claim, meaning that the product is supposed to support a structure or function of the human body – not treat or cure a disease. If Cocoa Krispies were a dietary supplement, the claim would be completely legal because Congress authorized structure-function claims for supplements when it passed the Dietary Supplement Health and Education Act of 1994.

Over the years, food makers complained that if supplements could use such claims, they could too.  At first, the FDA issued warning letters to food companies using structure-function claims.  It stopped after the courts ruled that food companies could make claims for the health benefits of their products on First Amendment grounds.

Now FDA says structure-function claims are OK to use as long as they are truthful and not misleading.  Misleading, of course, is in the eye of the beholder.  Evidently, the San Francisco city attorney thought this claim was misleading and demanded the evidence to back it up.  USA Today wrote about this on the front page (I’m quoted in it).

Wisely, Kellogg’s is going to find another design for its Rice Krispies packages.  Consider this particular box a collector’s item.

The lesson: In the absence of FDA action, food marketing is allowed to run rampant, and city and state attorneys are doing the FDA’s job.  Good for them.  And let’s hear cheers for the power of the press.

Comments

  • Anthro
  • November 5, 2009
  • 9:56 am

Yay! One for the people! Lawyers often get a bad rap, but they are certainly carrying the battle forward on this front.

Thanks for the update. By the by, how can it possible be seen as free “speech” to mislead people about their health–isn’t that like yelling “fire” in a crowded theater? I despair.

  • Emily
  • November 5, 2009
  • 10:20 am

My eyes about bugged out of my head when I saw those immunity boxes in the grocery store last week. Good riddance! These claims are getting absolutely ridiculous, but it’s good to see *something* getting done about them.

HA! I’m am officially LOL’ing at these junk food products. They’re in desperation mode. So glad it backfired.

[...] lire aussi l’article de Marion Nestle sur ce sujet sur son blog, Food Politics, Kellogg’s withdraws IMMUNITY claim! ou Kellogg retire l’allégation sur [...]

[...] Now FDA says structure-function claims are OK to use as long as they are truthful and not misleading. Misleading, of course, is in the eye of the beholder. [...]

[...] health nutritionist Professor Marion Nestle wasn’t impressed by the FDA’s lack of action on the immunity claim, and said the city [...]

  • Hilary
  • November 6, 2009
  • 4:55 am

Glad to see Kellogg’s is removing the immunity claims from the packaging. However, the company IS leaving up the claims to immunity on their website! So, a gain, but not a complete win.

I’m really glad about this one, since it had a real health risk to me: Every time I saw the packages, I thought I would DIE LAUGHING.

This is as bad as the Cherry 7UP with Antioxidants.

http://www.7up.com/text/dietcherry7up.aspx

A friend bought a box with the Immunity claim in case it ever becomes a collector’s edition. She was astounded to see on the side of the box that Cocoa Krispies is now ‘diabetes friendly’! Really, not only does it boost your immunity, but it’s friendly to diabetics too? Seems Kellogg’s is getting desperate to keep the sales up on their sugary cereals. According to http://www.kelloggsnutrition.com/diabetes, Kellogg’s created their very own nutrition panel to create a set of criteria for their cereals to determine whether or not they are diabetes friendly and Cocoa Krispies met the criteria. I wonder what’s next?

[...] attorney requesting evidence that supports the claim. Marion Nestle has a nice discussion on her blog about the wiggle-room inherent in ’structure-function’ claims for food [...]

[...] the Food & Drug Administration (FDA) is supposed to regulate misleading claims — like Kellogg’s claiming their sugar-laden cereals increased immunity — for the most part, manufacturers have free reign over how they try to sell you on their [...]

[...] Marion Nestle explains, these types of food claims fall into a loosely regulated, grey [...]

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