Thanks to an increasing awareness of where food comes from and its impact on our health, shoppers are becoming more discriminating, especially when it comes to processed foods. In response, many product manufacturers, fearful of losing customers, are slapping the “natural” label on foods that are anything but.
Read rest in Functional Ingredients magazine.
Last month, the Federal Trade Commission took public comments on a proposed settlement with the alcohol company Phusion Projects, which makes a beverage line called Four Loko. You might recall in 2010 how that product gained much notoriety for sending scores of college students to the emergency room as a result of its dangerous combination of alcohol with caffeine. In a rare victory of government action in favor of public safety, in November 2010, the Food and Drug Administration forced Phusion and other companies to remove the caffeine. (Read my case study here.) But of course, the story doesn’t end there, as these companies always have another trick up their sleeve to get youth hooked.
In August, I reported on a lawsuit against ConAgra for deceptive labeling of its Wesson brand of cooking oils as “natural.” The case alleges that the products contain genetically-modified organisms (GMOs), which are not by any stretch of the imagination, natural. A similar case was recently filed in California (by the same class action firm – Milberg) against Frito-Lay — the snacks division of food and beverage giant PepsiCo.
This time of year, it’s customary to look back and capture the most important historical moments. And all things considered, 2010 was a pretty good year. So in that spirit, here are my top 5 gains in food policy. (They are in no particular order.)
If there was Twitter for food only, today’s trending topic would have been the Big News that the Corn Refiners Association (yes, there are lobbyists for people who refine corn) is asking the Food and Drug Administration to rename high-fructose corn syrup (aka HFCS) “corn sugar.” This, the latest in the corn industry’s attempts to restore the tarnished reputation of its omnipresent by-product. Tara Parker-Pope, health blogger for the New York Times, quotes Audrae Erickson, president of CRA, who explains: Continue reading →
Vitaminwater’s website, marketing copy, and labels claim that vitaminwater is healthy, claiming, for example, that “balance cran-grapefruit” has “bioactive components” that promote “healthy, pain-free functioning of joints, structural integrity of joints and bones” and that the nutrients in “power-c dragonfruit” “enable the body to exert physical power by contributing to the structural integrity of the musculoskeletal system.”
An important hurdle in a lawsuit like this is surviving what’s called a motion to dismiss. That’s what Coca-Cola’s lawyers filed to ask the judge to throw out the case before it can even get to trial. Last month, U.S. District Court Judge John Gleeson denied Coke’s motion on almost all grounds, a huge victory for the plaintiffs.
Here are a few highlights. The court said: “Because vitaminwater does not meet minimum nutrition requirements [of FDA law], any health claim about the product is contrary to FDA regulation.” This is important because of what is known as the “jelly bean rule.” As the court explains:
The FDA regulations restricting health claims (or implied claims of “healthiness”) to foods which meet certain minimum nutrient levels, colloquially termed “the jelly bean rule,” were developed in order to prevent food producers from encouraging the consumption of “junk foods” by fortifying them with nutrients.
In other words, FDA developed this rule precisely with the type of marketing being deployed by vitaminwater in mind: promoting sugary soft drinks under the guise of good health and nutrition.
And then there’s this:
The fact that the actual sugar content of vitaminwater was accurately stated in an FDA-mandated label on the product does not eliminate the possibility that reasonable consumers may be misled.
This is important because defendants often try to hide behind the federal nutrition labeling law to avoid being held liable under state consumer deception statutes. But the court rejected this argument. In doing so, the judge cited to an earlier decision in a lawsuit over Gerber’s “Fruit Juice Snacks” that nicely captures the reasoning:
We do not think that the FDA requires an ingredient list so that manufacturers can mislead consumers and then rely on the ingredient list to correct those misinterpretations and provide a shield for liability for the deception. Instead, reasonable consumers expect that the ingredient list contains more detailed information about the product that confirms other representations on the packaging.
Last week, author John Robbins wrote on Huffington Post about the “staggering feat of twisted logic” by lawyers for Coca-Cola by asserting that “no consumer could reasonably be misled into thinking vitaminwater was a healthy beverage.” He wonders:
Does this mean that you’d have to be an unreasonable person to think that a product named “vitaminwater,” a product that has been heavily and aggressively marketed as a healthy beverage, actually had health benefits? Or does it mean that it’s okay for a corporation to lie about its products, as long as they can then turn around and claim that no one actually believes their lies?
I am grateful to the 35,000 or so people who have posted the article I wrote about the dark side of vitaminwater to their Facebook pages and/or tweeted about it. Coca-Cola would like us to believe that it’s a responsible corporate citizen, but the truth is decidedly otherwise. In fact, the company constantly lies to the public. What’s even more insulting, Coke then has the audacity to turn around and say, in court, that a product they have marketed as healthy actually isn’t, and the public would have to be stupid to think otherwise.
This case should put all food companies on notice that they can’t dress up junk food and nurtitionally-deficient beverages with healthy-sounding names or over-the-top marketing claims.
