Currently browsing posts about: FTC (Federal Trade Commission)

Today is the last day to comment on the federal Interagency Working Group’s (IWG) proposed nutrition standards for marketing food products to kids.  The IWG is a joint project of four federal agencies with at least some responsibility for public health: FTC, FDA, USDA, and CDC.

As I discussed back in April, I thought the IWG standards were generous and gave food companies plenty of room to market junk foods with impunity.  Maybe, but that’s not how food companies see it.  They think it will cause so much havoc with their marketing that they are fighting back, big time.

Large food companies joined together to create the “Sensible Food Policy Coalition.”  This entity paid for an economic assessment.  On July 8, the Coalition released Global Insight’s report of this assessment—a call to arms arguing that the “administration’s misguided ad restrictions would cost 74,000 American jobs.”

The report’s point is that restricting advertising would have unintended economic consequences, particularly losses in sales and revenues, and therefore jobs.  The report estimates an astonishing loss of $28.3 billion from manufacturing and retail sales, just in the first year, translating to “at least 74,000 lost jobs.”

This makes me think that the standards may have some merit.  Campbell Soup, for example, has just announced that because its low-salt soups aren’t selling, they are putting the salt back in.  Oh.

In any case, industry pushback seems to be having an effect.  As I discussed in my post a week or so ago, David Vladeck of the FTC used his blog to discuss industry mythology about the proposed standards.  I thought his statement backpedaled on even a hint of federal regulation of food marketing to kids.

MYTH #2: The Working Group’s proposal is regulation by the back door

….This is a report to Congress, not a rulemaking proceeding, so there’s no proposed government regulation. In fact, the FTC Act explicitly forbids the Commission from issuing a rule restricting food advertising to children. So the FTC couldn’t issue a rule on this subject if it wanted to, which it doesn’t. Simply put, a report like this can’t be a rule — whether it’s delivered to Congress by the front door, the back door, or the kitchen door.

The IWG is collecting comments on its proposals through close of business today.  If you need a rationale for filing a comment, read Larry Cohen’s piece in the Huffington Post.

Comments don’t have to be long or complicated.  Just say what you think.

Go to this site to file them.

Or go to the PreventObesity site for additional suggestions.

Do this today!

On May 24, an administrative law judge will deal with the matter of the Federal Trade Commission’s (FTC) complaints that health claims made for POM Wonderful pomegranate juice are unsubstantiated by science.

To review:  last September, the FTC complained that the company was advertising its juice with unsubstantiated claims like these:

• Clinical studies prove that POM Juice and POMx prevent, reduce the risk of, and treat heart disease, including by decreasing arterial plaque, lowering blood pressure, and improving blood flow to the heart;
• Clinical studies prove that POM Juice and POMx prevent, reduce the risk of, and treat prostate cancer, including by prolonging prostate-specific antigen doubling time;
• Clinical studies prove that POM Juice prevents, reduces the risk of, and treats, erectile dysfunction.

The FTC argues that these claims are false because POM Wonderful’s studies do not prove what the company claims.  The FTC particularly takes exceptions to the company’s advertisements:

• Washington Post Advertisement
• Banner Advertisement
• Fitness magazine Advertisement

If you want to follow the legalities, the FTC provides a handy summary.

According to FoodNavigator.com, this company must be supporting armies of lawyers:

POM is currently embroiled in a complex web of litigation, having itself launched legal action against the FTC alleging it had exceeded its statutory authority by establishing a two-clinical trial standard to back claims.

It has also filed actions against Coca-Cola Minute Maid, PepsiCo Tropicana and Ocean Spray alleging misleading claims about the contents of their pomegranate-containing juice products.

Separately, POM is itself accused of misleading consumers in a class action lodged in a Florida state court.

Leaving this particular company’s legal strategies aside, at issue is whether food health claims need to be backed up by science.   POM says it has the science.   The FTC says it doesn’t.   I will have more to say about that issue in subsequent posts.

In the meantime, it will be interesting to see what happens at the hearing.  Stay tuned.

The FTC released its long-awaited principles for food marketing to children today.  These are proposed principles, scheduled to apply to marketing to children age 2 to 17, to go into effect by 2016.  The principles are now open for comment.

• fruit
• vegetable
• whole grain
• fat-free or low-fat (1%) milk products
• fish
• extra lean meat or poultry
• eggs
• nuts and seeds
• beans

• Saturated Fat: 1 g or less per serving and 15% or less of calories
• Trans Fat: 0 g per serving
• Added Sugars: No more than 13 g of added sugars per serving
• Sodium: No more than 210 mg per serving

Recall the history:  In 2009, Congress specified that an interagency group was to set up standards for identifying foods that should not be marketed to children and to publish them by July 15, 2010.   That group came up with a set of recommendations similar to these but more complicated.

What are we to make of this? In the light of this history, the FTC must be congratulated for its courage in overcoming food industry opposition.  The principles are supposed to apply to all forms of media, print and electronic.  If so, the food industry will have a much harder time marketing foods to kids.  That’s great news.

• The principles are voluntary. Nobody has to follow them.
• Who is going to hold food companies accountable for following the guidelines?
• Why do food companies get until 2016 to implement them?  Five years?

If companies were to comply with these proposals, the restrictions are sufficiently onerous that they would basically block a substantial amount of advertising.

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!

Kellogg has had a bad year on the truth-in-advertising front.

First, It took the brunt of the furor over the late and unlamented Smart Choices fiasco, when the program’s first logo turned up on Froot Loops of all things and was attacked by the Connecticut attorney general.

Next, the IMMUNITY banner on Cocoa Krispies drew fire from the San Francisco city attorney’s office.

Both boxes are now collectors’ items.

Now, FoodNavigator-USA reports that Kellogg has taken another expensive beating, this time on its health claim for Mini-Wheats.

In 2009, Frosted Mini-Wheat boxes sported this health claim:  “Clinically shown to improve children’s attentiveness by nearly 20%.”

Of course this cereal can do that, especially when kids eating it are compared to kids who don’t eat any breakfast at all—which is what this study did.

But that’s not what the adorable television advertisements imply, as shown in exhibits A and B in the summary of the class-action decision.

Last April, Kellogg settled a dispute with the FTC over this claim.  The FTC did not argue that the claim was inherently absurd because of the lack of an appropriate control group for the study.  Instead, it took the study at face value and charged Kellogg with exaggerating the results because hardly any children—only 11%—improved attentiveness by 20% or more.

Kellogg has just settled a class-action suit over this claim that will cost the company $2.75 million in order to pay customers between $5 and $15 each in compensation.  The company also will give $5.5 million to charities.

Because of city and state attorneys and the FTC, the most egregious health claims are slowly disappearing from cereal boxes.     But lawsuits do not constitute policy.  What goes on the front of food packages is FDA territory.

FDA: Get to work!

The FDA held two conference calls today to announce action on caffeine-alcohol beverages. It is sending warning letters to four companies that make this collection of caffeinated alcoholic beverages:

• Core High Gravity HG Green
• Core High Gravity HG Orange
• Four Loko
• Joose
• Lemon Lime Core Spiked
• Moonshot  (This product is labeled as “premium beer with caffeine”)
• Max

The FDA says:

The manufacturers of these products have failed to show that the direct addition of caffeine to their malt beverages is “generally recognized as safe” by qualified experts.  Rather, there is evidence that the combinations of caffeine and alcohol in these products pose a public health concern….The agency has given the firms 15 days to respond to the warning letters and then may proceed to court to stop their sale. In addition, other alcoholic beverages containing added caffeine may be subject to agency action in the future if scientific data indicate that the use of caffeine in those products does not meet safety standards.

The FTC issued similar warnings to the same four companies because “marketing of such beverages may constitute an unfair or deceptive practice that violates the FTC Act.  Companies receiving letters include: United Brands Co (Joose and Max), Phusion Products (Four Loko and Four Maxed), Charge Beverages Corporation (Core High Gravity, Core Spiked, and El Jefe), and New Century Brewing Company (Moonshot).

What this is about:

Ever ahead of the game, the New York Times announced yesterday that the FDA would soon be doing something about the caffeinated alcohol beverages that have caused so much trouble on college campuses recently (see previous post on this).

Today, Four Loko says it will voluntarily take the caffeine out of Four Loko.

Why?  In a statement, Phusion Projects, the maker of Four Loko explains:

We are taking this step after trying – unsuccessfully – to navigate a difficult and politically-charged regulatory environment at both the state and federal levels….We have repeatedly contended — and still believe, as do many people throughout the country — that the combination of alcohol and caffeine is safe…If it were unsafe, popular drinks like rum and colas or Irish coffees that have been consumed safely and responsibly for years would face the same scrutiny that our products have recently faced….By taking this action today, we are again demonstrating leadership, cooperation and responsible corporate citizenship.

Yeah, right.  Irish coffees are hardly considered party drinks.

Phusion Projects is acting because it is being forced to.   FoodSafetyNews has kept score, based on data collected by the Marin Institute, which has been on top of this issue for years (thanks to Michele Simon and others).

So far, Oklahoma, Michigan, Utah, and Washington have banned drinks that combine caffeine with alcohol.  New York’s largest beer distributors have stopped selling the drinks. And several colleges have banned the drinks on campuses.

And where are the regulatory agencies in all this?  Alcohol beverages are not regulated by the FDA.  They are regulated by theTobacco Tax and Trade Bureau (TTB) of the Treasury department.  From the government’s standpoint, alcohol is about tax revenues, not health.  As Phusion Projects explains, all this is TTB’s fault:

If our products were unsafe, we would not have expected the federal agency responsible for approving alcoholic beverage formulas – the Tobacco Tax and Trade Bureau (TTB) – to have approved them.   Yet, all of our product formulas and packaging were reviewed and approved by the TTB before being offered to consumers.

Why is the FDA involved in this at all?  Because it regulates food additives—like caffeine and the other supplements put into energy drinks.

If this incident illustrates anything, it’s that alcohol beverages require the same kind of scrutiny given to any other food product and their regulation needs to move to an agency that cares about their effects on health.

Additions, November 18: The California Department of Health Services says caffeine-alcohol beverages can no longer be sold in the state.  And TTB has come out with its own warnings.

Addition, November 23: I’ve been sent the Saturday Night Live skit on Four Loko, and particularly appreciate the comment on portion size—120 servings per can!

OK, so “begging” isn’t quite the right word.  The FTC (Federal Trade Commission) has issued subpoenas to 48 food companies demanding information about their marketing practices aimed at children.

The FTC tried this once before and issued a report in 2008 based on the information it received.  But companies were not exactly forthcoming with the data.  In the present political climate, they will foot-drag this time too.

According to ThePacker.com, the FTC is asking for asked for nutritional data on the companies’ products as well as marketing information by December 1.

The FTC is quoted as saying that none of this is expected to lead to new regulations.  I guess the FTC is trying to do what it can under challenging circumstances.

But let me ask again: where is the FTC’s long-awaited report on nutrition standards for marketing products to kids?  If it can’t even get that report out, can the new subpoenas do any good?

While I’m on the subject of the FTC (see yesterday’s post), let’s congratulate the agency for going after the Nestlé (no relation) corporation for marketing a product aimed at kids with misleading, deceptive, and—according to the FDA—illegal health claims.  The FTC settlement announcement says that

from fall 2008 to fall 2009, Nestlé HealthCare Nutrition, Inc. made deceptive claims in television, magazine, and print ads that BOOST Kid Essentials prevents upper respiratory tract infections in children, protects against colds and flu by strengthening the immune system, and reduces absences from daycare or school due to illness.

Nestlé must have introduced this product in 2008 because bloggers (of the sponsored kind) were promoting its benefits in September that year.  One said:

BOOST Kid Essentials is a nutritionally complete drink intended for children ages 1 to 13.  The probiotics in BOOST Kid Essentials are embedded in a straw that comes with the drink, which was prominently featured in ads for the product.  Probiotics are live, beneficial bacteria that are found naturally in many foods, and they are known for aiding digestion and fighting harmful bacteria.

This blogger’s enthusiasm for the product—“parenting solved”—quotes two studies, one done with adults using the straw and another with kids in day care whose infant formula was supplemented with one of the bacteria used in the adult study.  Both studies look preliminary to me, as they must have to the FTC.

In February 2009, in what reads like a company advertisement, another (sponsored) blogger wrote:

BOOST Kid Essentials Drink is the only nutritionally complete drink that provides kids ages 1 through 13 with immune-strengthening probiotics plus complete, balanced nutrition. Just one daily serving of the probiotic found in the BOOST Kid Essentials Drink straw has been clinically shown to help strengthen the immune system. BOOST Kid Essentials Drink is perfect for children who are below growth percentiles, having trouble gaining weight, resisting eating enough nutritious foods, or needing extra nutrition to help maintain an active lifestyle.

But in December 2009, the FDA  issued a letter to the company warning it that it was marketing this product as a drug:

this product is misbranded under…the Federal Food, Drug, and Cosmetic Act… because the label is false or misleading in that the product is labeled and marketed as a medical food but does not meet the statutory definition of a medical food in the Orphan Drug Act…Furthermore, this product is promoted for conditions that cause it to be a drug under section 201(g)(1)(B) of the Act…The therapeutic claims on your website establish that this product is a drug because it is intended for use in the cure, mitigation, treatment, or prevention of disease.

The warning letter didn’t get into the business of whether probiotics really do any good (the European Food Safety Authority certainly doesn’t think so) or whether “healthy” bacteria stay live and active in a straw stuck in the packaging of a kids’ drink.  The company must not have wanted to get into all that, so it settled.  The probiotic straw no longer comes with the package.

Nestlé is the largest food company in the world with earnings that exceed $100 billion annually.  It should have known better.

Update, July 15: Since the FTC imposed no penalties on Nestlé,  analysts expect class action lawsuits to follow in due course.  And here’s the account in the New York Times (I’m quoted).