by Marion Nestle

Search results: Immunity

Jun 8 2010

FTC goes after Kellogg’s Immunity claim, but why?

The FTC has imposed new advertising restrictions on Kellogg because of the Immunity claim on Rice Krispies.  The company is not to make claims about “any health benefit of any food  unless the claims are backed by scientific evidence and not misleading.”

Under a previous order dealing with Frosted Mini-Wheats, Kellogg was not supposed to make claims about benefits to cognition on any of its cereals or snack foods unless the company could prove that the claims were backed by real science. This new decision extends that ruling to include any claim at all.

OK, but I’m confused about several aspects of this decision:

  • How come the FTC is doing this and not the FDA?  At some point years ago, regulatory responsibility was split between FDA and FTC.  Since then, the FDA regulates claims on food package labels, whereas the FTC regulates advertising claims.  I realize that food labels are a form of advertising, but it’s unusual and surprising for the FTC to get involved in FDA-regulated matters.
  • As FoodNavigator also wonders, why didn’t the FTC fine the company and, instead, write a harsh letter? [see update below]
  • Why is the FTC doing this?  Kellogg agreed months ago to withdraw its Immunity claim ( see my November 5 post about the withdrawal).  The Immunity boxes gradually disappeared from supermarket shelves and I haven’t seen one for a long time.

So what’s going on here?  Is the FTC getting serious about regulation (and about time, too)?  Or is FDA sitting back and letting the FTC do its enforcement work?

Could this be why the FDA hasn’t sent a warning letter to Mead-Johnson, the maker of the chocolate toddler formula with three health claims aimed at kids ages 1 to 3.  I posted about this product on April 26, but haven’t heard whether the FDA is doing anything about it.  Can the FTC be on this case but waiting for investigations to be completed before taking action?

Kellogg, it seems, is under fire on all fronts.  CSPI’s Margo Wootan sent me the recent decision by the Children’s Advertising Review Unit of the Better Business Bureau that Kellogg must stop advertising Pop-Tarts to kids:

CARU was concerned that the product packaging, which features berries and states “Made with Real Fruit” for several of Kellogg’s Pop-Tarts®  products that have fruit in their names, impliedly represents to children that the products contain substantial amounts of fruit.

In fact, according to CARU, Pop-Tarts contain less than 6% fruit and less than 2% of the fruit shown in the advertising. Kellogg claimed that its marketing was not aimed at kids, but lost that one.

It’s great that regulatory agencies like FTC and FDA (and voluntary agencies like CARU) are regulating but it’s hard to keep track of who is doing what.   Nothing to do but wait and see what happens next.  Stay tuned.

Update, June 8: CSPI’s Margo Wootan writes that FTC can’t impose fines because it does not have the authority to issue civil penalties.  Ted Mermin of Public Good Law concurs.  He says:

Companies fight hard to make FTC (and similar) orders as narrow as possible, in large part to avoid precisely the situation in which they are held responsible for violating an existing injunction/order.  Since (in the Commission’s view, at least) Kellogg hadn’t violated an existing order, the FTC did not have the authority to fine them without first going to the US Department of Justice to get DOJ to take the case (a matter of a 45 day delay, if DOJ takes it at all).  The burden of that delay (and of needing to get authority from DOJ in the first place) is precisely what is driving the congressional charge for enhanced FTC authority as part of the financial reform legislation.

If the House version of financial reform legislation had been in effect, the FTC would have had the authority to seek civil penalties (i.e., fines) and the outcome here might have been different.  As it was, the fact that Kellogg had stopped the practice…kept the Commission (at least the three commissioners in the “majority”) from focusing on any remedy other than injunctive relief–that is, a broadening of the existing order from the Mini-Wheats case, with the threat of that $16,000 per violation (and an expanded area of prohibited activity) running into the future.

Update, June 11: In an editorial titled “Snake oil for breakfast,” the New York Times explains why health claims matter so much.  If you can’t believe health claims, what part of the food label can you believe?:

Businesses have been making dubious claims about their products at least since the 17th century, when the British clergyman Anthony Daffy sold Daffy’s Elixir as a cure for scurvy as well as agues, gout, rheumatism, rickets, worms and other ailments. Hucksterism — no matter how implausible the claim — lives on…[for example] POM Wonderful claimed its pomegranate juice helps treat, prevent or cure hypertension, diabetes and cancer.  This might be par for the course for an era of swift-boating political ads and a torrent of television commercials plumping for myriad wonder drugs (sudden death may result). It leaves the consumer in a quandary: what part of the label can be believed?

Dec 1 2009

San Francisco attorney vs. Kellogg’s immunity claim

My latest column in the San Francisco Chronicle deals with the immunity health claim on boxes of Kellogg Cocoa Krispies (see previous posts).  I’ve been writing the column for the last year at irregular intervals of about once every three weeks.  Beginning in January 2010, it has its own slot and will appear on the first Sunday of the month.  Here’s this one:

Q: It’s great that San Francisco City Attorney Dennis Herrera put a stop to the absurd “immunity” claim on Kellogg’s Cocoa Krispies, but how do companies get away with this?

A: I confess; I’m a health-claims junkie. I snatched up the immunity-claiming box of Cocoa Krispies the minute I saw it in a supermarket last August. I consider it a treasure: “Now helps support your child’s IMMUNITY.”

How does Cocoa Krispies perform this miracle? The cereal contains 25 percent of the daily value of antioxidant vitamins A, B, C and E per serving instead of the old 10 percent. Vitamins, Kellogg points out, play an important role in immunity.

Of course they do. All nutrients are involved in immune function. But is it remotely possible that Cocoa Krispies might protect your child against colds or swine flu? I wish.

Antioxidants present an unparalleled marketing opportunity. Kellogg does not have to prove that its cereals are protective. Immunity claims fall into a Food and Drug Administration regulatory gray area. “Supports immunity” is a “structure-function” claim, so called because it promises to support a structure or function of the human body. However you might interpret such claims, they do not really promise to prevent, treat or cure disease.

Congress expressly authorized structure-function claims when it deregulated dietary supplements in 1994. But that law did not apply to foods. Food companies wanted to use these claims, too. At first the FDA balked. When faced with further legislation and court overturns, the FDA gave up. Now it merely says that structure-function claims on supplements must be truthful and not misleading. The FDA says nothing about structure-function claims on food products. It mostly looks away when they appear.

“Misleading” is inevitably in the eye of the beholder. Herrera turns out to be a skeptic.

“The Immunity claims,” he said, “may falsely suggest to parents that cereals like Cocoa Krispies are more healthy for their children than other breakfast foods … [and] mislead parents into believing that serving this sugary cereal will actually boost their child’s immunity.” Kellogg, he said, must produce the evidence or have the claim subject to “immediate termination or modification.”

Faced with this threat and with ridicule in the press, Kellogg wisely decided to phase out the immunity-labeled Cocoa Krispies packages. Consider them collectors’ items.

Much is at stake. Ready-to-eat cereals produce more than $8 billion a year in sales. Kellogg spent about $32 million in 2008 to promote Rice Krispies cereals, and $4 million of that amount went to advertise Cocoa Krispies alone.

Shoppers care about health. If cereals can be advertised with special health benefits, more boxes will fly off the shelves. Food companies consider health claims essential for marketing their products.

This explains why so many companies are adding omega-3 fats, probiotics and antioxidants to so many foods. These ingredients make foods “functional,” meaning that the foods contain something beyond their usual nutritional value. Although little evidence shows that functional foods make healthy people healthier, companies can use functional ingredients to make health claims, no matter how far-fetched. These days, functional foods are about the only processed foods with increasing sales.

Kellogg has plenty of company with functional ingredients and health claims. See, for example, the claims on Nestlé (no relation) Juicy Juice products targeted to toddlers. One product adds antioxidants to “help support immunity.” The other adds omega-3s to “aid brain development.”

Think about it: Will feeding your toddler a sugary juice product really make her smarter? Face it. You are not supposed to think about it. You are supposed to buy – and feel good about doing so.

Absent the FDA, Herrera stepped into the breach. He does not care whether the claims are on Kellogg cereals or Juicy Juice cartons. If companies make such claims, he insists that they produce the evidence for them.

This will not be easy to do. It is one thing to find evidence that specific nutrients are involved in immune function. It is quite another to show that people who eat sweetened cereals or juices containing such nutrients are healthier than those who do not.

That is why the European Food Standards Agency denied hundreds of company petitions for health claims. The agency cannot find much evidence for the health benefits of foods with added functional ingredients. Its decisions have put European food marketers into crisis. How are they supposed to sell products without health claims?

As I keep saying, health claims are about marketing, not health. If it were up to me, I would remove all health claims from food packages. Foods are not drugs. Health claims cannot help but mislead.

So let’s congratulate Herrera for filling a regulatory gap. His colleagues – and the press – are doing their job on this one. FDA: Get to work!

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.

Apr 10 2020

One more time: Is it safe to eat fresh foods from supermarkets and what to do about the packages

I know I’ve talked about what foods are safe to eat earlier (see previous post), but from the number of queries I’m getting it’s clear that this matter needs further discussion.

I can understand why this is so confusing.  Nobody gives a straight answer.

Let me start with the CDC’s advice:

How’s that for reassuring?

Consumer Reports: Answers to Common Questions About Coronavirus and the Food You Eat

The CDC, the Food and Drug Administration, the Department of Agriculture, and the World Health Organization say that food is not known to be a route of transmission of the virus. And the information available from outbreaks of SARS and MERS, caused by coronaviruses similar to the one that causes COVID-19, is reassuring. According to the WHO, the evidence showed that those illnesses were not transmitted by food.

Seattle Times: Debunking 10 myths about the Coronavirus

MYTH: The coronavirus can’t survive airborne or on surfaces.

FACT: Researchers have found that droplets carrying the virus can travel through the air and stay suspended for about half an hour. They can also settle on surfaces, where the virus can last longer — up to 24 hours on cardboard and up to 72 hours on plastic and steel. The risk of getting infected from touching these materials, however, remains low because the virus’ ability to infect decreases rapidly over time.  Source: The New York Times

Washington Post: Why health experts aren’t warning about coronavirus in food

The CDC and other experts note that the virus is new and still being studied. But they say there’s no evidence yet that COVID-19 sickens people through their digestive systems, though the virus has been detected in the feces of infected people.

Washington Post:  Grocery shopping during the coronavirus: Wash your hands, keep your distance and limit trips

In my paraphrasing:

  • Don’t go to the grocery store unless you have to
  • Wear a face mask

JAMA’s Patient Page on food safety and the virus

My bottom line on how to interpret all this

Maybe this virus has not been shown to be transmitted through food—yet—but why be the first case.  While waiting for the research—and let’s hope it comes soon—following the Washington Post’s and JAMA’s advice makes sense.

It’s also always a good idea to follow basic food safety principles for raw foods: clean, cook, separate, chill.

Cooking kills the virus.  Enjoy!

Have a happy, well fed, and safe weekend.

Resources

Mar 30 2020

Coronavirus and food: weekly update

RIP

  • Floyd Cardoz, a chef whose food I loved, is one of the early casualties.  I last talked to him at an event not six weeks ago.  He was having a hard time.  But to end like this?  A heartbreak.

Predictions of high risk

Effects on food systems

The alcohol industry responds

Here come the panaceas

Here come the frauds

For useful information

  • The CUNY Urban Food Policy Center is studying the effects of Covid-19 on New York City’s food system.  Its website is here.
  • The New York State Health Foundation has COVID-19 resources for nonprofits and community-based organizations, about food assistance as well as other matters.
Mar 24 2020

Coronavirus and food: this week’s update

From the New York Times

Does food transmit Coronavirus?  

Keeping up Coronoavirus  

How to survive working at home (watch out for junk food) 

How to take action

Advice for the food industry

  • US lays out new COVID-19 guidelines for food industry  The Trump Administration released a set of coronavirus guidelines for all Americans, with special provisions for critical infrastructure industries like food and beverage. Brands have been adapting this week to the new reality, while keeping employee safety a top priority…. Read more

What’s happening with supermarkets and supply chains?

What to avoid: dubious schemes for immune boosting

Who profits from this?

What else?

Dec 18 2019

The latest in superfoods: camel’s milk?

Really?  Camel’s milk?  I am indebted to DairyReporter.com for a review of research on the health benefits of camel’s milk.

According to this overview, camel’s milk can

  • Prevent colorectal cancer
  • Reduce cellular inflammation due to diabetes
  • Cures autism
  • Enhances immunity
  • Cures hepatitis
  • Prevents food allergies

A miracle food?

Alas, the article explains, most of these studies were performed in mice or published in journals unlikely to be rigorously peer reviewed.

What can I tell you about the nutritional quality of camel’s milk?

Unfortunately, the USDA’s food composition data base does not have an entry for camel’s milk.  What looks like a reasonable review of the nutritional value of camel’s milk (which you can download from this site) suggests that there are differences in nutrient composition between cow’s and camel’s milks, but the differences are small.  Because the proteins differ, people sensitive or allergic to cow’s milk will have an easier time consuming camel’s milk.

The big issue with camel’s milk in the United States is that it is not pasteurized.  Raw milk carries a greater food safety risk than pasteurized milk.

The FDA also has issued a warning against unproven claims that camel milk prevents autism.

I’m not seeing any particular health benefits from drinking camel milk other than avoiding allergic reactions to cow’s milk.

If you insist on drinking it, make sure it comes from a producer who diligently tests it for pathogens.

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May 22 2019

Annals of marketing: dairy-based functional drinks in Asia

A notice from FoodNavigator-Asia got my attention: Coca-Cola is partnering with the New Zealand dairy company Fonterra to produce “Nutriboost” products for Southeast Asia.

What are these?

  • Nutriboost Kids is targeted at children above three years of age, with each of its products being fortified with different occasion-based vitamins and minerals:…Morning Growth (fortified with vitamins for growth), Playtime (designed for stronger immunity) and Good Night (fortified with DHA for brain development).
  • Nutriboost To-Go is an energy-providing breakfast range enriched with oats and fibre.
  • Nutriboost Beauty is fortified with fitness and beauty-associated minerals like collagen and zinc.

Given the lack of evidence for significant nutritional benefits of any of these things, and the high prevalence of lactose intolerance among Asian populations, why this partnership?

  • Vietnam is the third largest dairy market in the ASEAN region.
  • To grow [sales] to 40 million or 50 million cases within the next five years.
  • Coca-Cola’s strategy is to evolve away from drinks with high sugar content.

The article doesn’t say how much money is going into this partnership, but both companies must think there is a big market for such products.

I’m not a fan of “functional” foods, alas.

Real food, anyone?