by Marion Nestle

Currently browsing posts about: FTC (Federal Trade Commission)

Nov 21 2023

Some good news (for a change)

Just in time for the Thanksgiving holiday, government agencies are, at long last, taking action on food issues.

Two examples:

I.  The Federal Trade Commission has issued warning letters to trade associations and dietitian-influencers they paid to promote sugar and aspartame on social media.

The letter to AmeriBev detail concerns about posts on Instagram and TikTok by Valerie AgyemanNichole AndrewsLeslie BonciKeri GansStephanie GrassoCara HarbstreetAndrea MillerIdrees MughalAdam Pecoraro, and Mary Ellen Phipps, each of whom also received an individual warning letter.

The letter to The Canadian Sugar Institute expresses concerns about Instagram posts by Jenn Messina and Lindsay Pleskot, each of whom also received an individual warning letter.

The letter to American Beverage (formerly the American Beverage Association) gives the “or else.”

We strongly urge you to review your social media policy. You should also review the Instagram, TikTok, and other social media posts made by your endorsers as to whether they contain sufficiently clear and conspicuous disclosures of any material connections to the American Beverage Association. To help guide your review, please see the Endorsement Guides3 and the staff publication FTC’s Endorsement Guides: What People Are Asking. Violations of the FTC Act may result in legal action seeking a federal district court injunction or an administrative cease and desist order

This action comes as a result of the investigative report in the Washington Post (it is cited in the letter).  I wrote about the Post article here and also posted the the response from the Academy of Nutrition and Dietetics.

The Post investigative team had this to say about the FTC’s warning letters.

Federal regulators announced warnings against two major food and beverage industry groups and a dozen nutrition influencers Wednesday, as part of a broad action to enforce stricter standards for how companies and social media creators disclose paid advertising.

Comment: Let’s hear it for the power of the press!

II.  New York State Attorney General sues PepsiCo for plastic pollution

New York Attorney General Letitia James today filed a historic and groundbreaking lawsuit against PepsiCo Inc. (PepsiCo) for harming the public and the environment with its single-use plastic packaging. The Office of the Attorney General (OAG) found that single-use plastic produced by PepsiCo contributes significantly to high levels of plastic pollution along the Buffalo River, pollution that is contaminating drinking water and harming wildlife.

…PepsiCo, which is headquartered in New York state, manufactures, produces, and packages at least 85 different beverage brands and 25 snack food brands that predominantly come in single-use plastic containers. Plastic packaging has become a persistent and dangerous form of pollution along the shores of the Buffalo River and in its watershed. In 2022, OAG conducted a survey of all types of waste collected at 13 sites along the Buffalo River and its tributaries and found that PepsiCo’s single-use plastic packaging was the most significant. Of the 1,916 pieces of plastic trash collected with an identifiable brand, over 17 percent were produced by PepsiCo. PepsiCo’s plastic packaging far exceeded any other source of this identifiable plastic waste along the river, and it was three times more abundant than the next highest contributor.

According to the New York Times, PepsiCo:

has said it aims to make all of its packaging “recyclable, compostable, biodegradable or reusable” by 2025. The company also says it wants to cut virgin plastic by 50 percent by 2030, compared with 2020.

The company is now being held accountable for that promise.  What a concept!

Comment: While soda-and-bottled-water companies profess commitments to reducing plastic waste, they fight recycling laws (those that require bottle deposits returnable when the bottle is returned) in every way possible.  Attorney General James is doing something quite remarkable; she is holding PepsiCo accountable for some of the externalized costs of producing sodas, bottled water, and snacks.  I hope this sets a strong precedent.  Kudos!

Feb 3 2023

Weekend reading: the FTC wants science to back up supplement health claims. What a concept!

The Federal Trade Commission has issued a Health Products Compliance Guide.

This amazing publication takes on the Dietary Supplement Health and Education Act of 1994.  That act effectively removed the FDA from regulating dietary supplements.  It also allowed supplement labels to make “structure/function” claims that the supplement supported some structure or function of the body, whether or not there was much in the way of scientific evidence to back up those claims (in contrast, FDA-authorized claims must be scientifically substantiated).

Now the FTC is saying:

Marketers of health-related products, including dietary supplements, should be familiar with the requirements under both FDA law and FTC law that labeling and advertising claims be truthful, not misleading, and substantiated.  The FTC approach generally requires that health-related claims be backed by competent and reliable scientific evidence substantiating that the representations are true.

Marketers cannot suggest unsubstantiated benefits, safety, or other characteristics.

Example 4:  An ad for an infant formula states that an ingredient added to the formula can reduce the symptoms of colic.  The ad includes an unrelated chart from a pediatric journal showing that, as a general principle, the length of time that colicky babies cry tends to decrease over the first 12 weeks of life…Using the graph in an ad for the infant formula likely implies that the formula, rather than the babies’ ages, causes the decrease in crying time.

Claims have to be qualified.

Example 10:  An energy drink contains an ingredient that, when consumed daily over an extended period, can result in a significant increase in blood pressure.  Even absent any representation about the product’s safety, the marketer should disclose this potentially serious risk.

Qualifying information must be clear and straightforward.

Example 13:  A company has results from two studies suggesting that its supplement helps to maintain healthy cholesterol levels.  There are, however, significant limitations to each of the studies… The company makes a claim in advertising that “promising, preliminary scientific studies show that our product may be effective in reducing cholesterol.”  The use of the words “promising,” “preliminary,” and “may” is unlikely to sufficiently convey the limitations of the science.

Assertions about the strength of evidence must be accurate.

Example 16: An ad for a supplement includes the statement “Scientists Now Agree!” in discussing the product’s benefit.  This statement likely conveys to consumers that the state of science supporting the benefit has reached the level of scientific consensus.  Unless the advertiser possesses evidence demonstrating that scientists have reached that consensus, the claim is false.

Marketers must consider the totality of the science.

Example 30:  An advertiser wants to claim that a supplement will substantially reduce body fat.  The advertiser has two controlled, double-blind studies showing a modest but statistically significant loss of fat at the end of a six-week period.  However, there is an equally well-controlled, double-blind 12-week study showing no statistically significant difference between treatment and control groups.  Assuming other aspects of methodology are similar, the studies taken together suggest that, if the product has any effect on body fat, it would be very small and may not persist over time.  Given the totality of the evidence, the claim is unsubstantiated.

Here’s the press release. 

The bottom line:  The FTC is requiring evidence for health claims on supplements.

This will affect claims for thousands of supplement products.

Enforcement anyone?  This should be fun to watch.

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Apr 9 2015

Consumer advocates petition FTC to keep junk food advertising out of YouTube for Kids

A coalition of children’s and consumer advocacy groups (see list below) filed a complaint with the Federal Trade Commission (FTC) charging that Google’s new YouTube Kids app violates restrictions on marketing junk foods to kids.

The coalition’s letter to the FTC details the charges.  YouTube Kids, it says:

  • Intermixes advertising and programming in ways that deceive young children.
  • Features “branded channels” for McDonald’s, Barbie, Fisher-Price, and other companies.
  • Distributes “user-generated” segments that feature toys, candy, and other products without disclosing the business relationships.

The Washington Post gives some examples:

On the American Greetings’ Strawberry Shortcake channel, for instance, a 37-second video features the red-haired doll describing the company’s “Food Fair” app, where characters pick ingredients for recipes. At the end, a banner appears showing the app can be downloaded on iTunes. McDonald’s has a 7-minute video dispelling myths about the contents of Chicken McNuggets. On another video, a deep-voiced announcer warns, “All vegetarians, foodies and gastronauts, kindly avert your eyes,” with a slow-cam close up of a juicy Big Mac. “You can’t get juiciness like this from soy or quinoa.”

Here’s the Coalition list: the Center for Digital Democracy, Campaign for a Commercial-Free Childhood, American Academy of Child and Adolescent Psychiatry, Center for Science in the Public Interest, Children Now, Consumer Federation of America, Consumer Watchdog, Corporate Accountability International, and Public Citizen.

This will be fun to watch.  Stay tuned.

Jan 16 2014

Congress on curbing food marketing to kids: not a chance.

Congress can’t pass a farm bill but it has plenty of time to micromanage nutrition and health.  Buried in the pork-filled Consolidated Appropriations Act of 2014 (see Monday’s post) are some zingers.  Here’s one:

appropr

This refers to the ill-fated IWG report I’ve discussed previously. To recap:

  • Congress asked the FTC to examine the effects of food marketing to children and make recommendations.
  • The FTC, USDA, FDA, and CDC got together and produced a report recommending voluntary guidelines for marketing to children based on the nutritional quality of the foods.
  • I thought the guidelines were weak in addition to being voluntary (they allowed lots of junk foods to qualify).
  • The food industry disagreed, strongly, and went to Congress to object.
  • Congress caved in to industry pressure and said the report could not be released unless the FTC produced a cost-benefit analysis.
  • End of story.
  • Why Congress feels that it’s necessary to do this again is beyond me.

I suppose we should be glad our legislators are at least doing something.

As for the food industry’s role in all this: when food companies say they are doing everything they can to reduce marketing junk foods to kids, you now know what they really mean.

Jan 17 2013

The FTC says no to POM Wonderful’s health claims

The Federal Trade Commission (FTC) just ruled that POM Wonderful’s claims for the health benefits of its pomegranate juices and products are indeed deceptive.

The FTC also said POM cannot claim that its products do anything special for heart disease, prostate cancer, and erectile dysfunction—unless it produces convincing evidence for these claims through two randomized, controlled clinical trials.

POM

The dispute over POM’s health claims has gone on for more than two years.  The FTC says POM has not proved that drinking its juice will cheat death.

POM says it has spent $35 million on peer-reviewed research proving that the antioxidants in pomegranate products promote health.

Of course they do.  Antioxidants in all fruits and vegetables promote health.

Maybe POM should resort to the defense used by Coca-Cola against charges that Vitamin Water makes deceptive health claims.

As Stephen Colbert reports, Coca-Cola’s argues: “No consumer could reasonably be misled into thinking Vitaminwater was a healthy beverage.”

Once again: health claims are about marketing, not health.

Expect POM to take the FTC to court over this ruling.  Stay tuned.

Dec 28 2012

The FTC’s latest report on food marketing to kids: glass half full or empty?

Last Friday was a big day for releasing reports that federal agencies would rather keep quiet.  As I discussed in my previous post, the FDA released its long overdue environmental impact report on GM Salmon.

Today, let’s take a look at the FTC’s latest report on the state of food and beverage marketing aimed at children. This is a follow-up to the report the FTC issued in 2008.

The new report cites progress.  From 2006 to 2009, its press release says:

  • Total spending on food marketing to youth ages 2-17 dropped from $2.1 billion to $1.79 billion, mainly because of less spending on television advertising.
  • But spending on new media, such as online, mobile, and viral marketing, increased by 50 percent.
  • Cross-promotions that link marketed foods with popular children’s movies and TV characters increased from 80 children’s movies and TV shows to 120.
  • Cereals had 0.9 gram less sugar and 1.6 grams more whole grain.
  • Fast food was a  little lower in calories, sodium, sugar, and saturated fat.

The report concludes:

Despite the commendable progress, this report identifies areas where further efforts could be made by the food and beverage industry and the media industry to improve the nutritional quality of foods marketed to youth.

Whether you see this as good news or not such good news depends on whether you see the glass as half full or half empty.

If you are a half-full type, you will rejoice that food companies are voluntarily improving the nutritional quality of their products even if the improvements are small.

If you are a half-empty type (which, in this case, I am), you will be dismayed at the lack of real progress in reducing the marketing of junk foods to kids.

Companies must sell more and more products to grow their businesses.  They are under pressure to reduce such marketing and to improve the quality of the products they sell.  Neither change is likely to increase sales.   Hence: resistance to change.

As Andy Bellatti points out, small nutritional improvements are unlikely to have much of an effect on health: reducing the sugars by 0.9 grams can be interpreted as “better for you” but does not necessarily make a product a good choice.

And as Michele Simon’s interview with former marketer Bruce Bradley suggests, the data on which the FTC based its positive assessments may well have been gamed by the companies reporting it.

As I read this report, it provides plenty of evidence that stopping food and beverage marketing to kids is the issue that matters most to doing something to reverse childhood obesity.

The election is over.    Maybe Let’s Move! can revisit the marketing-to-kids issue.  Someone needs to do it.  And soon.

 

Oct 4 2012

FTC issues advice on “eco” claims

The Federal Trade Commission (FTC), which is responsible for regulating advertising, has just revised its “Green Guide” to eco-labeling.

The FTC warns that

  • Explanations of specific attributes, even when true and substantiated, will not adequately qualify general environmental marketing claims if an advertisement’s context implies other deceptive claims.
  • Marketers [are] not to imply that any specific benefit is significant if it is, in fact, negligible.
  • If a qualified general claim conveys that a product is more environmentally beneficial overall because of the particular touted benefit, marketers should analyze trade-offs resulting from the benefit to substantiate this claim.

The FTC did this, according to the New York Times, to reduce the confusion caused by the proliferation of eco-labels.

In surveying consumers, the F.T.C. found that products that were promoted as “environmentally friendly” were perceived by consumers to have “specific and far-reaching” benefits, which, the government says, they often did not have.

“Very few products, if any, have all the attributes consumers seem to perceive from such claims, making these claims nearly impossible to substantiate,” the commission said.

No wonder the public is confused.  The Consumer Reports Greener Choices index of eco-labels goes on for pages, and the international EcoLabel index currently lists 432 icons and programs.

But the FTC guide says nothing about claims that a product is natural, organic, or sustainable.

“Natural” still has no regulatory definition.  Of Natural, the FDA says:

From a food science perspective, it is difficult to define a food product that is ‘natural’ because the food has probably been processed and is no longer the product of the earth. That said, FDA has not developed a definition for use of the term natural or its derivatives. However, the agency has not objected to the use of the term if the food does not contain added color, artificial flavors, or synthetic substances.

“Organic” is defined by the USDA through its National Organic Program.

“Sustainable” has no regulatory definition.

Will the FTC’s guide help alleviate confusion?  Perhaps, if companies follow it.

 

 

 

 

 

Sep 2 2012

Regulations do change eating behavior

My monthly, first Sunday column in the San Francisco Chronicle:

Q: I still don’t get it. Why would a city government think that a food regulation would promote health when any one of them is so easy to evade?

A: Quick answer: because they work.

As I explained in my July discussion of Richmond’s proposed soda tax, regulations make it easier for people to eat healthfully without having to think about it. They make the default choice the healthy choice. Most people choose the default, no matter what it is.

Telling people cigarettes cause cancer hardly ever got anyone to stop. But regulations did. Taxing cigarettes, banning advertising, setting age limits for purchases, and restricting smoking in airplanes, workplaces, bars and restaurants made it easier for smokers to stop.

Economists say, obesity and its consequences cost our society $190 billion annually in health care and lost productivity, so health officials increasingly want to find equally effective strategies to discourage people from over-consuming sugary drinks and fast food.

Research backs up regulatory approaches. We know what makes us overeat: billions of dollars in advertising messages, food sold everywhere – in gas stations, vending machines, libraries and stores that sell clothing, books, office supplies, cosmetics and drugs – and huge portions of food at bargain prices.

Research also shows what sells food to kids: cartoons, celebrities, commercials on their favorite television programs, and toys in Happy Meals. This kind of marketing induces kids to want the products, pester their parents for them, and throw tantrums if parents say no. Marketing makes kids think they are supposed to eat advertised foods, and so undermines parental authority.

Public health officials look for ways to intervene, given their particular legislated mandates and authority. But much as they might like to, they can’t do much about marketing to children. Food and beverage companies invoke the First Amendment to protect their “right” to market junk foods to kids. They lobby Congress on this issue so effectively that they even managed to block the Federal Trade Commission‘s proposed nonbinding, voluntary nutrition standards for marketing food to kids.

Short of marketing restrictions, city officials are trying other options. They pass laws to require menu labeling for fast food, ban trans fats, prohibit toys in fast-food kids’ meals and restrict junk foods sold in schools. They propose taxes on sodas and caps on soda sizes.

Research demonstrating the value of regulatory approaches is now pouring in.

Studies of the effects of menu labeling show that not everyone pays attention, but those who do are more likely to reduce their calorie purchases. Menu labels certainly change my behavior. Do I really want a 600-calorie breakfast muffin? Not today, thanks.

New York City’s 2008 ban on use of hydrogenated oils containing trans fats means that New Yorkers get less trans fat with their fast food, even in low-income neighborhoods. Whether this reduction accounts for the recent decline in the city’s rates of heart disease remains to be demonstrated, but getting rid of trans fats certainly hasn’t hurt.

Canadian researchers report that kids are three times more likely to choose healthier meals if those meals come with a toy and the regular ones do not. When it comes to kids’ food choices, the meal with the toy is invariably the default.

A recent study in Pediatrics compared obesity rates in kids living in states with and without restrictions on the kinds of foods sold in schools. Guess what – the kids living in states where schools don’t sell junk food are not as overweight.

Circulation has just published an American Heart Association review of “evidence-based population approaches” to improving diets. It concludes that evidence supports the value of intense media campaigns, on-site educational programs in stores, subsidies for fruits and vegetables, taxes, school gardens, worksite wellness programs and restrictions on marketing to children.

The benefits of the approaches shown in these studies may appear small, but together they offer hope that current trends can be reversed.

Researchers also suggest other approaches, not yet tried. The Yale Rudd Center has just shown that color-coded food labels (“traffic lights”) encourage healthier food choices.

And Rand Corp. researchers propose initiatives like those that worked for alcoholic beverages: Limit the density of fast-food outlets, ban sales in places that are not food stores, insist that supermarkets put junk foods and sodas where they are hard to see, ban drive-through sales, restrict portion sizes and use warning labels.

These regulatory approaches are worth trying. If research continues to demonstrate their value, cities will have even more reason to use them. If the research becomes compelling enough, the federal government might need to act.

In the meantime, cities are leading the way, Richmond among them. Their initiatives are well worth trying, testing and supporting.

**Marion Nestle is the author of “Why Calories Count: From Science to Politics,” as well as “Food Politics” and “What to Eat,” among other books. She is a professor in the nutrition, food studies and public health department at New York University, and blogs at foodpolitics.com. E-mail: food@sfchronicle.com