FTC Takes on Probiotic Claims

Jenna Telesca

When a lawsuit with the Dannon Co. ended in a $21 million settlement this December, the Federal Trade Commission signaled its intention to continue cracking down on probiotic marketing claims.

The FTC challenged Dannon's health marketing claims for its probiotic “friendly bacteria,” arguing that certain claims weren't supported by sufficient scientific evidence. As part of the settlement, the FTC said in a press release that “Dannon will stop claiming that one daily serving of Activia relieves irregularity, and that DanActive helps people avoid catching colds or the flu.”

When asked if Dannon will be emphasizing promotion of its probiotic products this year, Dannon spokesman Michael Neuwirth told SN, “We will most certainly continue to promote our probiotic products in 2011. These include Activia, which helps to regulate the digestive system, and DanActive, which helps to support the immune system. Millions of people benefit from and enjoy these products, and we will continue to research, educate and communicate about the benefits of probiotics on the digestive and immune systems.”

This settlement follows a similar FTC lawsuit with Nestlé over claims that its BOOST Kid Essentials drinks prevent illnesses such as the flu and upper respiratory tract infections by strengthening the immune system. In a July settlement, Nestlé agreed to stop making certain health claims on the probiotic drink without Food and Drug Administration approval. According to the FTC, this was the first case in which the agency challenged probiotic advertising.

“The FTC is sending clear warnings that it will not tolerate unsubstantiated health claims and that it is going to require high-quality science as a basis for substantiation. Public beliefs have nothing to do with science, as food marketers know well,” said Marion Nestle, food critic and professor of nutrition, food studies and public health at New York University. “But federal regulatory agencies ought to hold health claims to a high standard as part of their mission to protect the public and promote public health.” Nestle is not associated with the company Nestlé.

Two-thirds of people questioned in a 2009 report from the Chicago research firm Mintel agreed the FDA should “oversee the testing of functional foods to ensure that they do what they claim to do.” And, the FTC will likely follow its lead.

“We've been in the situation in past years where neither the FDA nor the FTC really scrutinized these types of products and now it looks like they may and so each company is going to have to do a little soul searching to decide if what they are saying can be substantiated by the scientific support that they have on the product,” said Mary Ellen Sanders, probiotics consultant, Dairy & Food Culture Technologies, Centennial, Colo.