Federal agencies under the Obama administration are placing an increased emphasis on monitoring and regulating false and deceptive food advertising.  As food manufacturers continue to tout their products’ health benefits, agency officials are scrutinizing their advertisements for misrepresentations and unapproved claims.

In April, the Federal Trade Commission (FTC) filed a complaint against Kellogg Company for falsely advertising its Frosted Mini-Wheats.  Specifically, Kellogg claimed that “kids who had a filling breakfast of Frosted Mini-Wheats cereal improved their attentiveness by nearly 20 percent.” Kellogg included the claim in its television and Internet advertising as well as on its product packaging and Web Site.  According to the FTC’s complaint, Kellogg did not have a reasonable basis for the claim made in its advertisements because the study referenced in the advertisements actually showed that (i) only about 50 percent of the children who ate Frosted Mini-Wheats showed any improvement in attentiveness; and (ii) only about 14 percent of the children who showed increased attentiveness improved their attentiveness by 18 percent or more.

Kellogg agreed to settle the charges by ceasing to make the attentiveness claims or any similar representations about Frosted Mini-Wheats in its advertisements unless it had reliable scientific data to substantiate the claims.  Kellogg also agreed to subject itself to monitoring by the FTC.  Specifically, Kellogg must maintain records of and make available to the FTC certain materials relating to any such representations, including tests and other data relied upon, for five years after the last date of dissemination of the claim. 

False statements are not the only claims made by food manufacturers that have come under increased scrutiny in recent months.  In May, the Food and Drug Administration (FDA) warned General Mills that the labeling of its Cheerios Toasted Whole Grain Oat Cereal violated the Federal Food, Drug, and Cosmetic Act.  The label on the cereal box claimed that the Cheerios product could reduce bad cholesterol by four percent.  While the FDA did not allege that the claim was false, it warned that the cereal could not be marketed legally without FDA approval because it qualified as a new drug.  The product qualified as a new drug because General Mills was claiming that the cereal was intended as a treatment for coronary heart disease.  The FDA also declared the cereal a misbranded food because its labeling bore unauthorized health claims.  General Mills issued a statement in response to the warning and confirmed that the FDA had not questioned the science behind the claim but that it was working with the FDA to reach a resolution. 

These agency reactions signal an increase in regulation of food labeling and advertising under the Obama administration.  Food manufacturers wishing to advertise their products’ health benefits should seek legal counsel before making such claims.  For further information, please contact:

Anthony V. Lupo
lupo.anthony@arentfox.com
202.857.6353

Matthew R. Mills
mills.matthew@arentfox.com
202.715.8582