In its continuing effort to crack down on companies making deceptive claims that omega-3 promotes healthy brain and eye development in children, the FTC has just announced deceptive advertising charges against NBTY, a marketer of children’s vitamins.

In February, the FTC  issued warning letters to 11 companies that make products like this one (“pediatrician recommended,” yet).

The FTC said the companies had better get busy and make sure they are not violating the law by “making baseless claims about how the supplements benefit children’s brain and vision function and development.”

The FTC cautioned the companies to make sure they had:

“scientific evidence to support claims that their products boost, improve, enhance, or support brain and vision function and development in children…[and]claims relating to intelligence, cognitive function, learning ability, focus, mood, memory, attention, concentration, visual acuity, and eye health.”

Now, the FTC has reached a settlement with the companies for $2.1 million in refunds, not only because of the unsupported health claims but also because the products did not contain the advertised amount of omega-3’s (see legal complaint):

the multivitamins featured characters such as the Disney Princesses, Winnie the Pooh, Finding Nemo, and Spider-Man.  Product packaging and print ads promoting the vitamins had bold graphics highlighting that the products contained DHA, but in reality, the products allegedly had only a trace amount of DHA.

While the vitamins’ packaging touted the purported health benefits of 100 milligrams of DHA, a daily serving of the Disney and Marvel multivitamins for children ages four years and older contained only one thousandth of that amount (0.1 mg or 100 mcg), according to the FTC’s complaint.

The settlement:

• Bars NBTY, NatureSmart, and Rexall Sundown from misrepresenting the amount of any ingredient contained in any product.
• Bars them from misrepresenting that any ingredient, including DHA, promotes brain or eye health or provides any other health benefit, unless the claim is true and backed by competent and reliable scientific evidence.

• Specifies that any violations could subject the NBTY, NatureSmart, and Rexall Sundown to civil penalties.

I wonder if the FTC is taking a look at the DHA “brain development” claims for Nestlé’s Juice Juice?  Just a thought.

This just in: The FTC announces a settlement with Dannon Yogurt to stop making unsubstantiated, exaggerated health claims for activia.  Dannon may no longer claim that:

• Any yogurt, dairy drink, or probiotic food or drink reduces the likelihood of getting a cold or the flu (unless FDA says it’s OK)
• Activia yogurt will relieve temporary irregularity or help with slow intestinal transit time, unless the ad conveys that three servings of Activia yogurt must be eaten each day.
• Any other yogurt, dairy drink, or probiotic food or drink will relieve temporary irregularity or help with slow intestinal transit time unless the company has two well-designed human clinical studies that substantiate the claim.
• The health benefits, performance, or efficacy of any yogurt, dairy drink, or probiotic food or drink, unless the claims are backed by competent and reliable scientific evidence.

The FTC wants science to back up health claims.  What a concept!

Yesterday, President Obama signed the Child Nutrition Reauthorization Healthy, Hunger-Free Kids Act of 2010 (how do they name these things?)

White House, Pete Souza

The fact sheet on the bill lists what it will do with the additional $4.5 billion in funding (over 10 years), among other actions:

• Gives USDA the authority to set nutritional standards for all foods regularly sold in schools during the school day, including vending machines, the “a la carte” lunch lines, and school stores.
• Provides additional funding to schools that meet updated nutritional standards for federally-subsidized lunches [this is the six cents per meal increase].
• Helps communities establish local farm to school networks, create school gardens, and ensures that more local foods are used in the school setting.
• Expands access to drinking water in schools, particularly during meal times.
• Sets basic standards for school wellness policies including goals for nutrition promotion and education and physical activity.
• Increases the number of eligible children enrolled in school meal programs by approximately 115,000 students…Helps certify an average additional 4,500 students per year to receive school meals.
• Allows more universal meal access for eligible students in high poverty communities.

The sticking point is the funding.  It is to be “borrowed” from an authorized increase in funding for SNAP (food stamps).   As I discussed yesterday, enrollment in SNAP is rising rapidly, and so are its costs so the loss of this increase will hurt.

In his signing speech, President Obama explained:

It’s also important to note that while this bill is fully paid for, it won’t add a dime to the deficit, some of the funding comes from rolling back a temporary increase in food stamp benefits –- or SNAP as it’s now called -– starting in the fall of 2013.  I know a number of members of Congress have expressed concerns about this offset being included in the bill, and I’m committed to working with them to restore these funds in the future.

He also said:

Not only am I very proud of the bill, but had I not been able to get this passed, I would be sleeping on the couch.

Mrs. Obama’s Let’s Move campaign inspired this bill and her leadership had much to do with its enactment.  Cheers for this, at last!

I was interested to read FoodSafetyNews this morning and learn about the FDA’s new count of the number and pounds of antibiotics used to promote the growth of farm animals used as food.

Because this is the first time the FDA’s Center for Veterinary Medicine has produced such a count, it is not possible to say whether the numbers are going up or down.  But the agency is now requiring meat producers to report on antibiotic use so we now have a baseline for measuring progress.

The FDA has been concerned about the use and misuse of animal antibiotics for some time now, so much so that in June it issued guidance on The Judicious Use of Medically Important Antimicrobial Drugs in Food-Producing Animals.

In the Federal Register notice announcing the guidance, the FDA explains:

Misuse and overuse of antimicrobial drugs creates selective evolutionary pressure that enables antimicrobial resistant bacteria to increase in numbers more rapidly than antimicrobial susceptible bacteria and thus increases the opportunity for
individuals to become infected by resistant bacteria. Because antimicrobial drug use contributes to the emergence of drug resistant organisms, these important drugs must be used judiciously in both animal and human medicine to slow the development of resistance. Using these drugs judiciously means that unnecessary or inappropriate use should be avoided….

In regard to the use of antimicrobial drugs in animals, concerns have been raised by the public and components of the scientific and public health communities that a significant contributing factor to antimicrobial resistance is the use of medically important antimicrobial drugs in foodproducing animals for production or growth-enhancing purposes.

The overuse of antibiotics in farm animal production was a key focus of the 2009 report of the Pew Commission on Industrial Farm Animal Production. Our conclusion: the overuse of antibiotics in animal agriculture is an enormous risk to public health and should be stopped.

The FDA report may be short and issued without comment, but it is a sign that the FDA is taking steps to address this serious public health problem.

The USDA has just posted shocking increases in the use and cost of food stamps (now called the Supplementary Nutrition Assistance Program, or SNAP just within the last two years.  The USDA data & statistics web pages provide data for SNAP participation and costs from 1969-2010.

Here’s what’s happened in the last three years:

• 2008: 28.2 million participants received an average benefit of $102 per month for a total cost of $37.6 billion.
• 2009: 33.5 million participants received an average benefit of $125 per month for a total cost of $53.6 billion.
• 2010: 40.3 million participants received an average benefit of $134 per month for a total cost of $68.2 billion.

Caroline Scott-Thomas of FoodNavigator.com points out that in 2009 eligible people were signing up for SNAP benefits at an average rate of 20,000 a day.  This year, the rate increased to 22,000 a day.

What, she asked, did I think of all this?

Nutrition professor Dr. Marion Nestle told FoodNavigator-USA.com: “Pretty obviously, this is a sign that the economy is still in bad shape, especially at the lower income ends. Wall Street may still be giving bonuses, but more and more Americans don’t have places to live or food to eat”….Nestle added that funding for this level of food stamp use could prove unsustainable in the current economy. “Some funding has already been cannibalized to fund the Child Nutrition Reauthorization,” she said. “The more expensive it gets, the more the program will be a target for lawmakers looking for moveable cash.”

With an estimated one-eighth of the population on food stamps each month, and no improvement to the economy in sight, it seems like there is plenty to worry about.

Every now and then, I enjoy answering questions posed by Eating Liberally’s Kerry Trueman.  Here’s one for today.

Let’s Ask Marion: How Did Junk Food and Obesity Become a Red State/Blue State Debate?

(With a click of her mouse, Kerry Trueman, aka kat, corners Dr. Marion Nestle, NYU professor of nutrition and author of Feed Your Pet Right, Pet Food Politics, What to Eat, Food Politics, and Safe Food):

kat: The “agri-culture war” that’s long been simmering is coming to a boil now, as recently noted in The Washington Post, The Daily Dish, and elsewhere in the blogosphere.

The Palin/Beck/Limbaugh axis of egos is vigorously defending junk food, lamenting the passage of the food safety bill, and decrying all efforts to address our obesity epidemic, even as David Frum, a rare voice of reason (sometimes) on the right, tells CNN that obesity poses a greater threat to our national security than, say, openly gay soldiers.

You yourself are under fire yet again (sigh) from those uber-astroturfers at the Center For Consumer Freedom for having the audacity to question whether our cherished principle of free speech entitles Big Food to emblazon the labels of its edible food-like substances with Big Lies (i.e. dubious, unproven health claims).

Why do you think that the issues of junk food and obesity have become so incredibly politicized?

Dr. Nestle: Politicized? Of course they are politicized. Junk food and obesity are key indicators of political divisions in our society. For starters, junk food is cheap and obesity is more common among low-income populations. So right away we are into divisive issues of income inequality and class and, therefore, who pays for what and which sectors of society get government handouts.

The minute we start talking about small farms, organic production, local food, and sustainable agriculture, we are really talking about changing our food system to accommodate a broader range of players and to become more democratic. Just think of who wins and who loses if $20 billion in annual agricultural subsidies go to small, organic vegetable producers who are part of their communities rather than to large agricultural producers who do not live anywhere near their corn and soybeans.

The issue at stake is who gets to decide how food is grown and what people eat. For as long as I can remember, big agriculture and big food were in control, in close partnership with congressional agricultural committees and the USDA. Today, the food movement–democracy in action, if you will–is challenging their authority and power. No wonder defenders of the status quo don’t like the challenge. It is only to be expected that they are fighting back.

I see the intensity of the debate (and, alas, the personal attacks) as a clear sign that the movement is making headway. The system is clearly changing. It has to change if we are to address obesity, climate change, and the other unsustainable aspects of our present ways of doing food business.

Anyone who is working to reduce income inequity and to make healthier food available to every American has to expect to encounter the methods corporations always use to fight critics: personal attacks, claims of junk science, invocation of personal responsibility, cooptation, and plenty of behind-the-scenes lobbying.

Telling truth to power has never been popular. But I’m convinced it’s worth doing.

It is always interesting to watch the food industry deal with criticism.  One common strategy is to discredit critics through personal attacks. Most companies are too embarrassed to do this publicly.  Instead, they pay public relations firms—in this case, the Center for Consumer Freedom—to do this for them.

What is this group?  See Center for Consumer Freedom Exposed and follow the links to see lists of the food industry donors it keeps secret.

If you have been reading this blog for a while, you know that I am an occasional target of this group, as can be seen from  the piece it posted yesterday:

Marion Nestle, Food Fascist

Sound harsh? After our latest check-in with everyone’s favorite anti-pleasure nutritionist, we think it’s completely appropriate. Marion Nestle published an article on her blog today quoting a law professor named Timothy Lytton, who insists that trampling on anyone’s First Amendment rights is a no-no. That prompted Nestle and fellow obesity warrior Dr. David Ludwig to fire off an astonishing letter.

The post goes on to quote extensively from my comments earlier this week.  It also points out:

At the end of the day, there’s no high-minded Constitutional principle in play here. This is about Marion Nestle attacking businesses she doesn’t like. This is the same professor who delivered a speech at an event sponsored by the “Socialist Conference” of the American Public Health Association. Nestle also addressed the “Socialist Scholars Conference” in 2003.

These kinds of strategies speak for themselves.

The corporations that hire the Center to do things like this should be ashamed of themselves.

The November issue of San Francisco Medicine is devoted to Food for Thought: Practical Nutrition for Physicians (the entire issue is online).

It’s got a great collection of short articles, if I may say so myself.  A throwback to the days when I taught nutrition at the University of California San Francisco School of Medicine, my contribution, the first one, is called “Doctor’s Orders: What Should Doctors Tell Patients About Nutrition?”

I am a realist. I am well aware of the fact of time constraints, and my list of suggestions for what doctors should tell patients about diet and health is necessarily short. Fortunately, it doesn’t take long to tell patients that what they eat matters to their health. It takes only a minute to explain that healthy eating simply means attending to food variety, minimal processing, and moderation.

This collection is worth a read.  For example:

• David Wallinga: An Unhealthy Food System: Suggestions for Physician Advocacy
• Brian Raymond: Taking Action: A Health Sector Guide to Food System and Agricultural Policy
• Kelly Brownell: How the Food Industry Drives Us to Eat
• Narsai David: Eating Sensibly: Using Common Sense and Moderation
• Shannon Udovic-Constant, MD, and Steve Heilig: Health Policy Perspective: Sugar Politics Versus Health

Take a look and use!

Food companies insist that they can make health claims for their products, whether backed by science or not, because commercial speech is protected by the First Amendment.

The First Amendment, in case you have forgotten, says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

In a commentary in JAMA earlier this year about front-of-package labeling, David Ludwig and I argued that it was time to take another look at current interpretations of the First Amendment suggesting that free commercial speech is equivalent to free political or religious speech.  Surely, we said, consumers would be better off without front-of-package labels and health claims on food products.

Last month, the British journal Public Health Nutrition published an article by  Timothy Lytton, the Albert and Angela Farone Distinguished Professor of Law at Albany Law School.

His article, “Banning front-of-package food labels: First Amendment constraints on public health policy,” takes issue with our JAMA argument:

In recent months, the FDA has begun a crackdown on misleading nutrition and health claims on the front of food packages by issuing warning letters to manufacturers and promising to develop stricter regulatory standards. Leading nutrition policy experts Marion Nestle and David Ludwig have called for an even tougher approach: a ban on all nutrition and health claims on the front of food packages.

Nestle and Ludwig argue that most of these claims are scientifically unsound and misleading to consumers and that eliminating them would ‘aid educational efforts to encourage the public to eat whole or minimally processed foods and to read the ingredients list on processed foods’.

Nestle and Ludwig are right to raise concerns about consumer protection and public health when it comes to front-of-package food labels, but an outright ban on front-of-package nutrition and health claims would violate the First Amendment. As nutrition policy experts develop efforts to regulate front-of-package nutrition and health claims, they should be mindful of First Amendment constraints on government regulation of commercial speech.

And now, Public Health Nutrition has just published our letter in response to Lytton’s paper.  We say:

In his thoughtful paper about front-of-package food labels, Timothy Lytton states that a ban on such labels would violate First Amendment provisions of the US Constitution. Lytton cites case law to argue that lower courts have consistently interpreted the First Amendment as providing guarantees of free commercial speech.

Indeed they have, and in 2003, the Bush Administration Food and Drug Administration (FDA) stopped defending against misleading health claims cases on First Amendment grounds. We are not lawyers and make no pretense of arguing case law. However, it seems obvious to us that this interpretation of the First Amendment neither follows its original intent, nor promotes the public interest.

The founding fathers clearly intended the First Amendment to guarantee the right of individuals to speak freely about religious and political matters, not the right of food companies to market junk foods to children and adults. Laws are subject to reinterpretation and change, as the history of civil rights legislation makes clear.

That politics influences interpretation of the law at the highest level is evident from the US Supreme Court’s decisions in Bush v. Gore (2000) and Citizens United v. Federal Election Commission (2010).

We think the time has come for major legal challenges to the right of corporations to mislead the public on the grounds of free speech. The front-of-package health claims controversy demands immediate attention. We hope that legal scholars will examine current food marketing practices in the light of the First Amendment and establish a firm legal basis for bringing this issue back to court. Lytton’s arguments make the need for such reconsideration perfectly evident.

Public interest lawyers: get to work!