Currently browsing posts about: FTC (Federal Trade Commission)

I’ve just gotten an urgent plea from Margo Wootan at the Center for Science in the Public Interest (CSPI).

Please encourage everyone to write to President Obama, First Lady Michelle Obama, and federal agencies to support the nutrition standards for marketing foods to kids.

As I’ve discussed previously, these were created jointly by the Interagency Working Group (IWG) of four federal agencies—CDC, FDA, FTC, and USDA.

Under intense pressure from the food and entertainment industries and their friends in Congress, the IWG’s proposed guidelines—voluntary, no less—are in danger of being withdrawn.

Doing that might help corporate health but would do nothing for public health.

CSPI organized 75 researchers (including me) to send a letter to the President urging support of the voluntary guidelines and expressing dismay at the campaign of disinformation aimed at getting them withdrawn.

Junk-food advertisers, in the guise of the Sensible Food Policy Coalition, have attacked the voluntary guidelines as an assault on the First Amendment, a point debunked by top Constitutional experts, and claimed that adopting the voluntary guidelines would result in job losses, based on a flimsy industry “study.”

….It would be a real setback for children’s health if the Administration backed down on strong guidelines for food marketing to children, especially given the transparently specious arguments of junk-food advertisers….Denying the science on food marketing and childhood obesity is like denying the science on global warming or evolution.

But the food industry is dug in on this one.  For example, a reader sent me this letter from Tom Forsythe, Vice President, Corporate Communications, General Mills (excerpts follow with my comments in brackets):

Your email notes that we have lobbied against the Interagency Working Group (IWG) proposal.  That is correct.  We have serious concerns about the IWG proposal.

Our most advertised product is cereal – and we stand behind it.   Cereal is one of the healthiest breakfast choices you can make….If it is a General Mills cereal, it will also be a good or excellent source of whole grains.

Childhood obesity is a serious issue – and General Mills wants to be part of the solution.  But if the issue is obesity, cereal should perhaps be advertised more, not less.

…You can be assured than food and beverage companies have studied every letter, comma and period in the proposal.  We know what it says, and what it does not.

For example, we know that 88 of the 100 most commonly consumed foods and beverages could not be marketed under the IWG guidelines.  The list of “banned” items under the guidelines would include essentially all cereals, salads, whole wheat bread, yogurt, canned vegetables, and a host of other items universally recognized as healthy [Note: I’m not at all sure this is true–MN].

Despite the characterizations used to advance them, the IWG guidelines would not be voluntary, in our view.  The IWG guidelines are advanced by two of the agencies most responsible for regulating the food industry, as well as the agency most responsible for regulating advertising.  Ignoring their “voluntary guidance” would not be an option for most companies.

Regulation has already been threatened (even demanded) should companies choose not to comply – and litigation would inevitably follow.

The IWG guidelines also conflict with most existing government programs and definitions relative to food.  For example, many products that meet the U.S. Food and Drug Administration’s current definition of “healthy” could not be advertised under the IWG guidelines [It would be interesting to see examples].

Many products included in the U.S. Department of Agriculture’s Supplemental Nutrition Assistance Program fail the IWG standards, as do most products encouraged and subsidized under the USDA’s Women, Infants and Children Feeding Program (WIC) [If so, this is a sad commentary on what we encourage low-income mothers and children to eat].

Finally, your email suggests companies should focus on providing feedback via public comment.  We agree.  We have reviewed every detail of the IWG proposal – and we remain opposed, as our public comment explains.

My interpretation: if food companies are this upset, the guidelines must be pretty good.

Companies have the right to sell whatever they like.  But they should not have the right to market it as healthy or to kids.

Tell the IWG you support their guidelines.  Tell the White House to protect the guidelines.  Now, please.

I just received a message from Samantha Graff, the director of legal research at Public Health Law & Policy, an advocacy group in Oakland, California.

This morning, she writes, 36 legal scholars—including several experts on the First Amendment—weighed in on the food industry’s fight against proposed nutrition standards for foods and beverages marketed directly to children.  This is the very issue I wrote about in yesterday’s San Francisco Chronicle column and have discussed in previous posts.

In a letter sent this morning to federal agencies, the legal scholars point out that because food and beverage companies are free to ignore the nutrition recommendations, the draft principles “do not restrain or compel anyone’s speech. They are not, in fact, government regulations at all.”

A key industry strategy has been to recruit lawyers to write white papers charging that the proposed nutrition standards violate First Amendment rights to free speech.

Recall that Congress asked the FTC to join with the FDA, CDC, and USDA to recommend standards for food products marketed to kids.  These agencies, collectively known as the Interagency Working Group on Food Marketed to Children (IWG), issued Preliminary Proposed Nutrition Principles to Guide Industry Self-Regulatory Efforts.   This report outlines proposed voluntary standards that have been open for public comment.

My initial reaction: the standards were much too generous.  But that’s not how the food industry sees them.  Food companies realized that the standards exclude large proportions of the junk foods they currently market to kids.

They created a new lobbying group, “Sensible Food Policy Coalition” (shades of George Orwell’s 1984).   This group is doing everything it can to block the proposed standards.   Its website links to white papers opposing the recommendations on First Amendment grounds.

David Vladeck, director of the FTC’s Bureau of Consumer Protection, responded to some of these claims in a recent blog post, in which he emphasizes the voluntary nature of the proposals.

I’ve said it before and repeat: I am not a legal scholar but intention seems to matter in legal decisions.  The intent of the First Amendment was to protect political and religious speech. I cannot believe that the intent of the First Amendment was to protect the right of food companies to market junk foods to kids.

Marketing to children is unethical.  It should be stopped.  And it’s the government’s responsibility to do it.

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!