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Withdrawn, November 4, 2009
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.