Can Lawsuits Compel FDA to Act on Labeling?

A survey of the legal and regulatory landscape reveals just how perilous it’s become to make any sort of health claim in the food industry. One contributor to SN’s Refresh blog recently profiled the “onslaught” of health claim-related false advertising lawsuits.

There are plenty of cases to choose from: sugar-free benefits in gum; flavonoids in dark chocolate; the meaning of “all-natural” ingredients in cereal; the amount of fruit needed in fruit roll-ups; and what constitutes a healthful kids’ breakfast.

The complaints allege a certain degree of deception. Whether it’s on the box top or in a television ad, the plaintiffs charge that the health-related claims are either unsupported by science or stretch accuracy. Food industry critics say the accusations have been legitimately raised by consumers.

Challenging food companies is nothing new, but the so-called “onslaught” is alarming. The pace of accusations seems to be accelerating. What’s going on here?

There are many moving parts involved, but the overriding theme seems to be the lack of a single definition of healthful (or healthy, or better-for-you). Right now there are no fewer than half a dozen nutrition rating systems, icons and formulas out on the market. Some, such as NuVal, Guiding Stars and Facts Up Front, are available to the industry as a whole; others are proprietary and exclusive to individual retailers, such as Great For You, the shelf program being implemented by Wal-Mart.

Late last year a special committee convened by the quasi-public, nonpartisan Institute of Medicine issued recommendations to the Food and Drug Administration for a single nutrition rating system that would supersede and replace all the others. The FDA is reviewing the suggestions.

In the meantime, health claims are left to the discretion of industry stakeholders. It’s understandable that a manufacturer who successfully reduces added sugar content in a product might consider it “better-for-you,” and therefore worthy of a call-out on the package. It’s just as reasonable that a consumer, armed with more knowledge of ingredients and nutrition facts, could think otherwise.

Until the FDA and the industry work out a nutrition-rating program that everyone agrees on, it’s probably best to set a very high bar on making health claims for food products. Each of these individual court cases might not make much of an impact, but collectively they pose a very real threat to the integrity of product marketing.