Has the arrival of President Obama brought about stricter controls on health claims?

Has the arrival of President Obama brought about stricter controls on health claims?

Recent action by the Advertising Standards Authority in the UK and the Federal Trade Commission in the US has underlined that companies which make inadequately substantiated health claims for their products risk censure and possible reputational damage. Ben Cooper reports.

The move by the UK’s Advertising Standards Authority (ASA) last week to ban an advert for Coca-Cola’s Vitaminwater brand for claiming it was “nutritious” has once again brought the issue of health claims into the media spotlight.

The ASA ruling coincided with the finalisation of a settlement by Nestlé of a Federal Trade Commission (FTC) complaint over deceptive advertising for its Boost Kid Essentials brand, underlining that the issue is by no means restricted to the UK. Indeed, the Nestlé case provided further evidence of the growing resolve by US regulators to act when they consider that health claims are misleading consumers.

Last month, food and drinks group Danone was forced to agree a settlement with the FTC over claims of misleading advertising for its probiotic products. The FTC said the advertising for Activia yoghurt and the DanActive range of dairy drinks was "deceptive" and the claims had been made without "substantiation". 

Meanwhile, in June last year, the FTC forced Kellogg to remove a claim on Rice Krispies that the product helped "support your child's immunity", with Kellogg agreeing not to make claims about potential health benefits unless it had scientific evidence. In September, the FTC issued a complaint against the manufacturers of POM Wonderful 100% Pomegranate Juice and POMx supplements stating that advertising for the products included “false and unsubstantiated claims” that the products will prevent or treat heart disease, prostate cancer and erectile dysfunction.

Coincidentally, The Coca-Cola Company’s Vitaminwater brand is the subject of a class action in the US, in which consumer advocacy group the Center for Science in the Public Interest (CSPI) is serving as co-counsel, over what CSPI describes as “deceptive and unsubstantiated claims” made on behalf of the brand. In July, a federal judge denied Coca-Cola’s motion to dismiss the lawsuit.

The recent ASA case is not the first time Vitaminwater has been in trouble with the regulator in the UK. Late in 2009, the ASA censured a Vitaminwater ad campaign which included taglines such as “more muscles than brussels” and “keep perky when you’re feeling murky”. 

In response to the most recent case, Coca-Cola conceded that a 50cl serving of Vitaminwater contains 23g of sugar, but defended the use of the term "nutritious" because it also contains "nutritionally meaningful quantities" of several nutrients including vitamin C and four B vitamins.

Meanwhile, the European Food Safety Authority (EFSA) is conducting an extensive review of health claims in the EU which includes examination of probiotics and a wide range of ingredients found in functional foods and drinks. Probiotic health claims have fared particularly badly in the reviews already published. In late-2009, the ASA also banned a TV ad for Danone’s Actimel probiotic yoghurt.

The debate over what food and drinks companies claim on behalf of their products and how they substantiate such claims is clearly a live one, then. The expanding demand for better-for-you and functional foods and drinks may have brought exciting commercial opportunities, but it has also given rise to some delicate judgement calls for manufacturers.

Considering the marketing activity around products such as probiotic yoghurts and sports drinks, the rewards are certainly significant, but, as regulators in the US and Europe become more zealous in examining claims and pursuing alleged abuses, the reputational risks may begin to outweigh the commercial benefits. If, and when, further such cases are brought, companies may have to reappraise both how they communicate potential health benefits, and the research they conduct to substantiate any claims.

Stephen Gardner, the CSPI’s director of litigation, is in no doubt that the regulatory environment in the US has become tougher since President Obama took office. He believes the latest FTC action “betokens a significantly ramped up FTC enforcement”, adding that this is in sharp contrast to the “do nothing Bush years”.

Obama appointees at the FTC and the Food and Drug Administration (FDA), Gardner says, are “people who believe in doing their job and believe in regulation”, in contrast to the Bush appointees “who often went out of their way to protect industry rather than protecting consumers”.

Whether the recent spate of cases suggests that corporate behaviour is getting worse or is simply a function of heightened regulatory action is a moot point. But, Gardner believes that the inaction under the Bush administration was a contributory factor. “After eight years of lawlessness it’s not surprising that companies feel they can get away with anything,” he tells just-drinks. He believes, however, that the US food and drinks sector has woken up to the new reality. “They know that the [regulatory] environment is tougher.”

Although the ASA action may hint at a similar trend in the UK, British campaigners are less convinced of the UK government’s willingness to get tough on errant marketing. In particular, they believe that the ‘responsibility deal’ unveiled between the Government and the food and drinks industry last year is symptomatic of a ‘laissez-faire’ approach that will allow industry a freer rein than it had before.

Although pleased that the ASA has clamped down on Vitaminwater, Jeanette Longfield, coordinator of UK food pressure group Sustain, says she has not seen “a single sign” that the Government is getting tougher on companies in the way seen in the US. On the matter of the responsibility deal, Longfield believes that if companies do not show more responsibility towards labelling and advertising as part of the deal with government, it “makes a mockery of it”.

Only time will tell if the Government’s deference towards corporate responsibility will lead to improved conduct, but one could say that, with the responsibility deal, the clue is in the name. The environment the UK Coalition Government envisages may afford companies greater freedom to show that they can act properly and ethically on their own initiative, but with that freedom come responsibilities. Too many examples of drinks companies playing fast and loose with health claims could certainly bring both the companies and the Government’s policy itself into disrepute.