Nonprofit Fights Deceptive Food Health Claims

The glaring problems in the Food and Drug Administration’s (FDA) food labeling regime have been recently highlighted by the spate of truth-in-labeling lawsuits filed against major food manufacturers.  While many lawsuits allege misleading use of the “all natural” label, others, such as those pursued by the nutrition and food safety advocacy Center for Science in the Public Interest (CSPI), have also focused on the unsubstantiated or misleading health claims made directly or indirectly on food packaging.

For example, Welch was accused in a pre-litigation letter of misleading consumers with the use of the company’s heart-health icon on its grape juice and other products such as fruit snacks. CSPI says that, among other things, the company’s products have too much sugar and too many calories that negate any possible health benefits. Moreover, Steve Gardner, the litigation director at CSPI, noted in a press release that, “[i]t takes a heroic amount of chutzpah to tell consumers that these fruit snack candies will reward anyone’s heart.”

7UP manufacturer is facing a lawsuit for promoting claims that its regular and diet Cherry Antioxidant, Mixed Berry Antioxidant, and Pomegranate sodas carry antioxidant. Similarly, General Mills is facing several lawsuits. One lawsuit challenges the company’s Nature Valley claims that its granola bars are “natural” even though, according to CSPI, “they contain industrially produced artificial ingredients such as high-fructose corn syrup, high-maltose corn syrup, and maltodextrin.” In another lawsuit, General Mills Fruit Roll-Ups, Fruit by the Foot, and Fruit Gushers Snacks are accused of misleading consumers with claims that promote the products “nutritional qualities,” when instead, CSPI says, “the “fruit” snacks lack any significant amount of real fruit and are instead made mostly of sugars, artificial additives and artificial dyes. The snacks have no dietary fiber and contain the dangerous trans fat.”

Many labeling claims are aimed at children.  Several years ago, for example, Fruit Loops, Cocoa Puffs and their ilk carried a front package check mark declaring the sugary concoctions — almost 50% sugar, according to the FDA commissioner — to be “Smart Choices,” raising eyebrows with the FDA.  The FDA pressured the industry to stop the Smart Choices program.

And it’s not just food manufacturers that make misleading promises with its labels. Pfizer, the maker of Centrum brand multivitamin, for example, has agreed to voluntarily remove claims related to breast and colon health on advertising and labeling for certain Centrum brand multivitamin supplements.

The problem with health claims on food labels is not new. CSPI, along with others, has repeatedly asked the FDA to step in to protect the public from “food products that dishonestly claim to protect immunity, nourish the brain, support a healthy digestive system, or protect cartilage and joints.”  These concerns go at least as far back as 2000, when, for example, CSPI complained to the FDA of food companies making unsubstantiated product claims relating to the use of ginseng and ginkgo biloba in food when “these ingredients [are] not generally recognized as safe for use in food.”

The misleading labeling of food and supplement products, however, has worsened in the last couple of years, told me Mr. Gardner in an interview.

CSPI lawsuits and complaints to the FDA raise broader policy questions and point to flaws in the current FDA food labeling policies. The concern is not simply whether the FDA needs stronger or different enforcement authority. When food conglomerates with marketing budgets that could arguably rival certain countries’ GDPs make claims about their products and advertise them convincingly to consumers —  claims that cannot be substantiated or are potentially misleading — the palpable absence of agency enthusiasm in pursuing potential violators is hard to justify.

Lack of staffing, insufficient funds, and related arguments that government agencies typically cite in an attempt to excuse their lack of enforcement do not convince Steve Gardner. After all, Mr. Gardner told me, his litigation staff at CSPI is significantly smaller than that of the FDA yet has accomplished more for consumer protection than the dormant agency.

Speaking at the National Food Conference in September 2009, the FDA Commissioner, Margaret A. Hamburg, M.D., spoke about the “public health importance of food labeling as an essential means for informing consumers about proper nutrition”:

It is an issue that’s critical for the health and vitality of our nation, and yet it is a concern that has not been substantially addressed since the FDA implemented the Nutrition Labeling and Education Act, more than 16 years ago.

Despite the Commissioner’s candid acknowledgement, little has changed.