FTC: More Enforcement of Rules for Health Claims

JULIE GALLAGHER

NEW YORK — The Federal Trade Commission is keeping close watch on nutritional claims made by major food marketers, especially when their products are geared toward children, said Leonard Gordon, director of the northeast regional office of the Federal Trade Commission, earlier this month.

“More and more products — food products — are making health claims, and I think you're going to see more enforcement there,” said Gordon during a briefing on the new direction of FTC consumer protection at law firm Venable's office here. “The Smart Choices [nutrition labeling] program has somewhat gone away, but as companies make more and more claims, they're going to need to have some science behind those or there are going to be some problems.”

Gordon provided as an example a case in which Kellogg's touted a breakfast of Frosted Mini-Wheats as “clinically shown to improve kids' attentiveness by nearly 20%.” An FTC complaint alleged that according to Kellogg's clinical study the claims were false, and only about half the children who ate Frosted Mini-Wheats showed any improvement in attentiveness, and only about one in nine improved by 20% or more. In August, Kellogg settled with the FTC.

Since the appointments of Chairman Jon Leibowitz and Bureau of Consumer Protection Director David Vladek, the FTC has become more focused on protecting kids, privacy issues, scams preying on those in financial trouble, and partnerships with community groups and state and federal agencies. Marketers can expect to see more joint enforcement between the FTC and the Food and Drug Administration, Gordon said.

The healthfulness of foods marketed to kids is also on its radar. Last month, the Interagency Working Group on Food Marketed to Children — of which the FTC is a member — released tentative proposed nutrition standards for foods marketed to kids. A final report will be submitted to Congress by July 15.

“It's possible that by next summer Congress may do something with those guidelines,” Gordon said. “One hope is that perhaps the threat of legislation will provide more meaningful participation and compliance with industry self-regulation.”

Sixteen companies, whose ads represent 71.3% of those kids see on television, are voluntary members of the Better Business Bureau's Children's Food and Beverage Advertising Initiative. They include Campbell Soup Co., General Mills, Unilever, ConAgra Foods and others.

Four have committed not to advertise to children while the remainder agreed to only advertise products “meeting nutrition standards arrived from authoritative and science-based nutrition guidelines.”

The FTC also works to ensure environmental marketing claims are truthful, substantiated and not confusing to consumers.

Last June, it sued Kmart Corp., alleging it made false and unsubstantiated claims when marketing its private-label American Fare disposable paper plates as biodegradable.

“The problem with this is that almost all waste in the U.S. is disposed of in landfills that are specifically designed to prevent anything from biodegrading, so how is a paper plate supposed to biodegrade?” Gordon said.

Since 1992, FTC Guides for the Use of Environmental Marketing Claims have stated that unqualified biodegradable claims are acceptable only if they have scientific evidence that their product will decompose within a reasonably short time under customary methods of disposable.

Kmart settled the case.

Marketers of weight loss products and items promoted in the blogosphere might also come under fire, Gordon said.

“If you're going to be using testimonials from those who supposedly lost weight, you're going to have to disclose much more prominently that results are not typical,” he said.

Companies who don't adequately make known that a certain person is being paid to market their product on a blog, through Twitter or via some other viral marketing vehicle, are also of concern, especially if the claim is unsubstantiated.

“The FTC wants to ensure that a consumer is not being misled,” said Gordon. “If a celebrity endorses a product on a commercial, and it's Dan Marino for Nutrisystem, I think everyone understands he's being paid for that. But it gets harder when in a tweet someone mentions, ‘This morning I had coffee and it was wonderful,’ and they're actually being paid to do that.”