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Archive for the ‘Food/Beverage Marketing’ Category
Arkansas State Consumer Protection Profile
Tuesday, March 1st, 2011
Download the Arkansas State Consumer Protection Profile (pdf)
Which state consumer protection provisions could be used to protect consumers from junk food marketing?
The Arkansas Deceptive Trade Practices Act (“ADTPA”) generally prohibits unconscionable, false and deceptive trade practices. Ark. Code §§ 4-88-107. It is unlawful to “[k]nowingly making a false representation as to the characteristics, ingredients, uses, benefits, alterations, source, sponsorship, approval, or certification of goods . . . .” Ark. Code §§ 4-88-107(1). With respect to the sale or advertisement of any good, the ADTPA outlaws: “(1) The act, use, or employment by any person of any deception, fraud, or false pretense; or (2) [t]he concealment, suppression, or omission of any material fact with intent that others rely upon the concealment, suppression, or omission.” Ark. Code §§ 4-88-108.
The ADTPA also makes it illegal to “[k]nowingly tak[e] advantage of a consumer who is reasonably unable to protect his or her interest because of (A) [p]hysical infirmity, (B) [i]gnorance, (C) [i]lliteracy, (D)
[i]nability to understand the language of the agreement, or (E) [a] similar factor.” Ark. Code § 4-88-107(8).
Does Arkansas law provide any special protections for child consumers?
The ADTPA’s provision outlawing knowingly taking advantage of consumers who are reasonably unable to protect their own interests is a potentially powerful protection for child consumers. Children, by virtue of their age may be ignorant of the distinction between advertising and non-commercial content, they may be fully or partially illiterate, and unable to understand disclaimers and terms of contests and promotions. In addition, food marketing targeted at children typically is blatantly aimed at a certain age group making it easier for a plaintiff to establish that the defendant “knowingly” sought to take advantage of that group.
Who can bring a lawsuit?
The Attorney General, private consumers and classes of private consumers can file suit.
What needs to be shown to make out a claim?
A plaintiff must show (1) a false, unconscionable, or deceptive act, (2) actual damages and (3) the act was the proximate cause of the injury alleged. Ark. Code § 4-88-113(f); Ashley County, Ark. v. Pfizer, Inc., 552 F.3d 659, 666 (Ark. 2009). A showing of intent to deceive is only required in limited cases. There is no definitive ruling under Arkansas law as whether reliance is a required element.
What are the powers of the Attorney General to protect kids from junk food marketing?
The Arkansas Attorney General may seek injunctive relief, Ark. Code § 4-88-104, investigate, Ark. Code §§ 4-88-105, 4-88-111, seek restitution for affected consumers, Ark. Code §§ 4-88-113, and petition a court for civil penalties of up to $10,000 per violation, Ark. Code §§ 4-88-113.
How does the law compensate consumers?
A plaintiff may recover actual damages. Ark. Code § 4-88-113(f).
Who is liable for attorney’s fees?
A successful private plaintiff may recover attorney’s fees. Ark. Code § 4-88-113(f).
DISLCAIMER: This legal summary is for informational purposes only. Please consult an attorney for legal advice. All information reflects legal research conducted in 2010.
Supported by the Robert Wood Johnson Foundation’s Healthy Eating Research Program (#66968).
Arizona State Consumer Protection Profile
Tuesday, March 1st, 2011
Download the Arizona State Consumer Protection Profile (pdf).
Which state consumer protection provisions could be used to protect consumers from junk food marketing?
Arizona’s Consumer Fraud Act (“CFA”) prohibits “[t]he act, use or employment by any person of any deception, deceptive act or practice, fraud, false pretense, false promise, misrepresentation, or concealment, suppression or omission of any material fact . . . in connection with the sale or advertisement of any merchandise . . . .” Ariz. Rev. Stat. § 44-1522. Under Arizona law, advertisement “includes the attempt by publication, dissemination, solicitation or circulation, oral or written, to induce directly or indirectly any person to enter into any obligation or acquire any title or interest in any merchandise.” Ariz. Rev. Stat. § 44-1521.
Does Arizona law provide any special protections for child consumers?
The CFA has no specific provision protecting children as vulnerable consumers. The CFA’s definition of “advertisement” does include indirect and direct attempts to induce consumers to buy products. Ariz. Rev. Stat. § 44-1521. Advertising aimed at children intended to generate “pester power” whereby children pester their parents into buying a product for them is a classic form of “indirect” food marketing. The inclusion of indirect marketing practices in the definition of “advertisement” may prove beneficial to consumers in cases where deceptive advertising is aimed at children but the parent is the ultimate purchaser.
Who can bring a lawsuit?
The Attorney General, private consumers and classes of private consumers can file suit under the CFA.
What needs to be shown to make out a claim?
A plaintiff must show that the defendant committed a deceptive or fraudulent act in connection with the sale of merchandise and that he or she was injured (suffered damages) as a result. Howell v. Midway Holdings, Inc., 362 F.Supp.2d 1158, 1164 (D. Ariz. 2005) (citing Dunlap v. Jimmy GMC of Tucson, Inc., 136 Ariz. 338, 342 (Ariz. App. 1983)). The CFA requires a showing that the defendant acted with intent when the misconduct alleged involves concealment, suppression or omission of a material fact. Ariz. Rev. Stat. § 44-1522. For private actions, the Arizona courts have interpreted the CFA to require a basic showing of reliance on the deception by the consumer. See, Peery v. Hansen, 585 P.2d 574, 577 (Ariz. App. 1978), and Siemer v. Associates First Capital Corp., 2001 WL 35948712 (D. Ariz. 2001). Arizona courts have held, however, that a private plaintiff’s reliance need not be reasonable: “An injury occurs when a consumer relies, even unreasonably, on false or misrepresented information.” Kuehn v. Stanley, 91 P.3d 346, 351 (Ariz. App. Div., 2004). See also, Stratton v. American Medical Sec., Inc., 266 F.R.D. 340, 348 (D.Ariz., 2009).
What are the powers of the Attorney General to protect kids from junk food marketing?
The Arizona Attorney General has the power to investigate, Ariz. Rev. Stat. § 44-1524, issue subpoenas, Ariz. Rev. Stat. § 44-1526, conduct hearings, Ariz. Rev. Stat. § 44-1526, promulgate procedural rules, Ariz. Rev. Stat. § 44-1526, and seek injunctive relief and restitution for consumers, Ariz. Rev. Stat. § 44-1528, and petition the court for up to $10,000 in civil penalties for willful violations of the CFA, Ariz. Rev. Stat. 44-1531(A). The Attorney General may seek restitution for affected consumers. Ariz. Rev. Stat. § 44-1528(A)(2).
How does the law compensate private plaintiffs?
Private individuals are entitled to actual damages. Dunlap v. Jimmy GMC of Tucson, Inc., 136 Ariz. 338, 342 (Ariz. App. 1983). In rare cases, a court may award punitive damages if the wrongdoer’s conduct “is wanton or reckless, shows spite or ill will or where the conduct demonstrates a reckless indifference to the interests of others.” Dunlap v. Jimmy GMC of Tucson, Inc., 136 Ariz. 338, 343 (Ariz. App. 1983).
Who is liable for attorney’s fees?
The Attorney General is entitled to attorney’s fees for prevailing in an action brought under the CFA. Ariz. Rev. Stat. § 44-1534. Consumers are not entitled to attorney’s fees for actions under Arizona’s CFA. Sellinger v. Freeway Mobile Home Sales, Inc., 521 P.2d 1119, 1123 (Ariz. 1974).
DISLCAIMER: This legal summary is for informational purposes only. Please consult an attorney for legal advice. All information reflects legal research conducted in 2010.
Supported by the Robert Wood Johnson Foundation’s Healthy Eating Research Program (#66968).
Alaska State Consumer Protection Profile
Tuesday, March 1st, 2011
Download full Alaska State Consumer Protection Profile (pdf)
Which state consumer protection provisions could be used to protect consumers from junk food marketing?
Alaska’s Unfair Trade Practices and Consumer Protection Act (“UTPCPA”) is modeled off of the Federal Trade Commission Act (“FTCA”). In general it prohibits “[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of trade or commerce . . . .” Alaska Stat. § 45.50.471(a). Specific prohibitions that could apply to food marketing include trade practices that:
Cause a “likelihood of confusion or misunderstanding as to the source, sponsorship, or approval, or another person’s affiliation, connection, or association with or certification of goods or services.” Alaska Stat. § 45.50.471(b)(3);
Represent that “goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation, or connection that the person does not have.” Alaska Stat. § 45.50.471(b)(4);
Represent “that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another.” Alaska Stat. § 45.50.471(b)(6);
Engage in “any other conduct creating a likelihood of confusion or of misunderstanding and which misleads, deceives or damages a buyer or a competitor in connection with the sale or advertisement of goods or services.” Alaska Stat. § 45.50.471(b)(11); and
Use or employ “deception, fraud, false pretense, false promise, misrepresentation, or knowingly concealing, suppressing, or omitting a material fact with intent that others rely upon the concealment, suppression, or omission in connection with the sale or advertisement of goods or services whether or not a person has in fact been misled, deceived or damaged.” Alaska Stat. § 45.50.471(b)(12).
Does Alaska law provide any special protections for child consumers?
Alaska’s UDTPCA has no specific provision protecting children as vulnerable consumers. Alaska courts give great weight to interpretations of the federal FTCA, Defense Research Institute (DRI), Unfair Trade Practices: A Compendium of State Law 20 (2005), and the Federal Trade Commission has recognized an exception from the general “reasonable person” standard for FTCA actions when advertising is aimed at a vulnerable or particularly susceptible audience. Federal Trade Commission, See Deception Policy Statement, appended to In re Cliffdale Assocs., Inc., 103 F.T.C. 110, 177 (1984), http://www.ftc.gov/bcp/policystmt/ad-decept.htm. This lesser standard should be applied when children, who by their very nature are particularly susceptible, are the target audience of food advertising.
Who can bring a lawsuit?
The Attorney General, private consumers and classes of private consumers can file suit.
What needs to be shown to make out a claim?
Plaintiffs must establish a prima facie case: “(1) that the defendant is engaged in trade or
commerce; and (2) that in the conduct of trade or commerce, an unfair act or practice occurred.”
Odom v. Fairbanks Memorial Hosp., 999 P.2d 123, 132 (Alaska 2000) (internal citations
omitted). A plaintiff need not suffer actual injury. Rather, “all that is required is a showing
that the acts and practices were capable of being interpreted in a misleading way.” Odom
v. Fairbanks Memorial Hosp., 999 P.2d 123, 132 (Alaska 2000). In a private action, a plaintiff
must suffer an “ascertainable loss of money or property.” Alaska Stat. § 45.50.531(a).
A showing of reliance is not required. Odom v. Fairbanks Memorial Hosp., 999 P.2d 123, 132
(Alaska 2000). A showing of intent to deceive is only required when a claimant alleges that a
defendant knowingly concealed, suppressed or omitted a material fact. Alaska Stat. §
45.50.471(b)(12) (expressly requiring the actor to possess the requisite intent).
What are the powers of the Attorney General to protect kids from junk food marketing?
The Alaska Attorney General has the power to investigate and enforce the UDTPCA. The Attorney
General may issue an injunction, Alaska Stat. § 45.50.501, and may petition the court for
civil penalties of not less than $1,000 and not more than $25,000 per violation of an injunction
or restraining order. Alaska Stat. § 45.50.551)(a). The Attorney General may pursue civil
penalties of up to $5,000 per violation of the UDTPCA. Alaska Stat. § 45.50.551(b). The Alaska
Attorney General may also promulgate rules under the UDTPCA. Alaska Stat. § 45.50.491. Current
rules, however, do not pertain to food marketing, but rather involve regulation of insurance,
retail, and mortgage sales.
How does the law compensate consumers?
Under Alaska law, private plaintiffs may recover treble damages: plaintiffs may recover “for
each unlawful act or practice three times the actual damages or $ 500, whichever is greater.”
Alaska Stat. § 45.50.531(a). If, however, “a person receives an award of punitive damages
[treble damages] . . . the court shall require that 50 percent of the award be deposited into
the general fund of the state.” Alaska Stat. § 45.50.531(i). Other relief is available at the discretion
of the court. Alaska Stat. § 45.50.531(i). Private parties may seek injunctive relief.
Alaska Stat. § 45.50.535.
Who is liable for attorney’s fees?
A successful plaintiff is entitled to reasonable attorney’s fees. Alaska Stat. § 45.50.537(a). If
the court finds the action was frivolous, the plaintiff will be liable for defendant’s attorney’s
fees. Alaska Stat. § 45.50.537(b).
DISLCAIMER: This legal summary is for informational purposes only. Please consult an attorney for legal advice. All information reflects legal research conducted in 2010.
Supported by the Robert Wood Johnson Foundation’s Healthy Eating Research Program (#66968).
Future of Obesity Litigation panel featuring PHAI’s Gottlieb and CSPI’s Gardner airs and is available online
Monday, February 28th, 2011
On January 21, 2011, Northeastern University Law Journal sponsored its third annual symposium. This year, it was entitled “From Seed to Stomach,” and addressed legal and regulatory aspects of obesity and food safety. The symposium was recorded for broadcast by CSPAN, which aired the material from February 25-28, 2011.
PHAI’s Executive Director, Mark Gottlieb, along with Stephen Gardner (Director of Litigation for the Center for Science in the Public Interest) appeared on a panel moderated by Stuart Rossman (Director of Litigation for the National Consumer Law Center) focused on the future of obesity litigaiton. The 80 minute panel is archived on CSPAN’s website. Topics addressed included the “cheeseburger bills,” the role of and use of arguments around choice and individual responsibility, consumer protection law, and the litigation against McDonald’s use of toy giveaways to sell Happy Meals.
Research upon which Mr. Gottlieb’s presentation was based was supported in part by the Robert Wood Johnson Foundation’s Healthy Eating Research Program (#66968) and by the National Institutes of Health (grant RO1 CA 87571).
Alabama State Consumer Protection Profile
Thursday, February 24th, 2011
Download the full Alabama State Consumer Protection Profile (pdf)
Which state consumer protection provisions could be used to protect kids from junk food marketing?
The Alabama Deceptive Trade Practices Act (“DTPA”) prohibits deceptive acts including:
- “Passing off goods or services as those of another, provided that this section shall not prohibit the private labeling of goods or services.” Ala. Code § 8-19-5(1);
- “Causing confusion or misunderstanding as to the source, sponsorship, approval, or certification of goods or services.” Ala. Code § 8-19-5(2);
- “Causing confusion or misunderstanding as to the affiliation, connection, or association with, or certification by another, provided that this section shall not prohibit the private labeling of goods or services.” Ala. Code § 8-19-5(3); and
- “Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or qualities that they do not have or that a person has sponsorship, approval, status, affiliation, or connection that he or she does not have.” Ala. Code § 8-19-5(5).
The DTPA also contains a catch-all provision that prohibits “[e]ngaging in any other unconscionable, false, misleading, or deceptive act or practice in the conduct of trade or commerce.” Ala. Code § 8-19-5(27). When construing the DTPA courts are to give “due consideration and great weight” to interpretations of the Federal Trade Commission and the federal courts relating to relevant portions of the Federal Trade Commission Act. Ala. Code § 8-19-6.
Does Alabama law have any special protections for child consumers?
The DTPA does not have any special provisions dealing with child consumers. It does direct state courts to be guided by interpretations given by the FTC and the federal courts. The Federal Trade Commission has recognized an exception from the general “reasonable person” standard for FTCA actions when advertising is aimed at a vulnerable or particularly susceptible audience. Federal Trade Commission, See Deception Policy Statement, appended to In re Cliffdale Assocs., Inc., 103 F.T.C. 110, 177 (1984), http://www.ftc.gov/bcp/policystmt/ad-decept.htm. This lesser standard should be applied when children, who by their very nature are particularly susceptible, are the target audience of food advertising.
Who can bring a lawsuit?
The Attorney General, and individual consumers may file suit. Class actions brought by consumers are not permitted, but the Attorney General may file class actions in a representative capacity to recover actual damages on behalf of consumers. Ala. Code § 8-19-10(f).
What needs to be shown to make out a claim?
In order to make out a claim under the DTPA a plaintiff must allege that the defendant committed an act declared unlawful by the DTPA and that act caused the plaintiff monetary damages. Ala. Code § 8-19-10(a). While not all of the enumerated violations of the DTPA require that the unlawful act be committed knowingly, the statute contains a “defense” provision whereby a defendant may defend a claim “upon a showing by a preponderance of the evidence . . . that such person did not knowingly commit any act or knowingly engage in any activity which constitutes a violation of any provision of this chapter.” Ala. Code § 8-19-13. Thus, plaintiffs should be able to establish that the act was committed knowingly.
What are the powers of the Attorney General to protect kids from junk food marketing?
The Attorney General may conduct investigations and enforce the DTPA by seeking injunctive relief, monetary damages, and civil penalties of up to $25,000 for violations of an injunction and up to $2,000 for violations of the DTPA committed knowingly. Ala. Code § 8-19-4(a); Ala. Code § 8-19-8; Ala. Code § 8-19-11.
How does the law compensate consumers?
Prevailing consumers shall be awarded actual damages or $100, whichever is greater or up to three times any actual damages in the court’s discretion. Ala. Code § 8-19-10(a).
Who is liable for attorney’s fees?
The court shall award prevailing consumers costs and reasonable attorney’s fees. Ala. Code § 8-19-10(a)(3). The court also has the discretion to award a defendant reasonable attorney’s fees and costs upon a finding that an action was frivolous or brought in bad faith. Ala. Code. § 8-19-10(a)(3).
DISLCAIMER: This legal summary is for informational purposes only. Please consult an attorney for legal advice. All information reflects legal research conducted in 2010.
Supported by the Robert Wood Johnson Foundation’s Healthy Eating Research Program (#66968).
Unclear on calories: GMA & FMI’s front-of-package “Nutrition Keys” omit key calorie information
Monday, January 24th, 2011
Today the Grocery Manufacturers Association (GMA), the packaged food and beverage industry’s trade association, and Food Marketing Institute (FMI), the food retailer’s trade assocation, revealed a front of package labeling scheme designed to “complement the Clear on Calories labeling system developed by the American Beverage Association,” the non-alcoholic beverage industry’s trade association. It seems GMA and FMI can’t even give the public straightforward information even when launching a campaign intended to reduce consumer confusion.
What’s Missing From This Picture?
GMA/FMI Front of Package Labeling Scheme
GMA and FMI’s joint Fact Sheet states : “Under the Nutrition Keys program, participating food and beverage companies will place an icon on the front of their products that displays calories, saturated fat, sodium and sugar per serving. The icon will also tell consumers how each serving of a product contributes to their overall diet based on recommended daily nutrition intake as established by the federal government’s U.S. Dietary Guidelines, and expressed as percent of daily value.” The examples used by GMA/FMI provide a percentage of daily values for fat, sodium and nutrients but DOT NOT provide a percentage that corresponds to the percentage of a 2,000 calorie per day diet (sugar is not labeled because there is no estalished percent daily value for sugars at present). None of the graphic examples used by GMA/FMI or the American Beverage Association include a bubble for the percentage of an average 2,000 calorie per day intake.
When it Comes to Calories, “Nutrition Keys” Differs from the UK GDA System
The GMA/FMI Fact Sheet states “Nutrition Keys is in use on a voluntary basis in the United Kingdom, where it enjoys wide consumer acceptance. In the U.K., 83% of consumers are aware of the icon and 63% report that they use the information summary when they make decisions at the point of purchase.” While the GMA/FMI do not provide an example of the precise labeling system referenced, a similar U.K. system (the GDA sytem) contains a % of average daily calories in the calorie bubble. The GMA/FMI differs materially from the U.K. scheme–calories are not put into the context of a % of average daily calorie intake.
Nothing New & A Step Backward
GMA and FMI’s joint Press Release describes the initiative as “the most significant modernization of food labels since the Nutrition Labeling and Education Act of 1990. The scheme, however, appears to be the exact same scheme employed by General Mills and Kellogg’s on their cereal products for the last several years. Those schemes, at least initially, contained a disclosure of the % of average daily calorie intake–the GMA/FMI scheme does not.
PHAI’s Gottlieb discusses litigation as an approach to reduce childhood obesity at Institute of Medicine Workshop
Wednesday, October 27th, 2010
On October 21, 2010, the Institute of Medicine’s Standing Committee on Childhood Obesity Prevention hosted a one-day workshop to examine “Legal Strategies in Childhood Obesity Prevention.”
Mark Gottlieb, Executive Director of the Public Health Advocacy Institute at Northeastern University School of Law, presented on a panel moderated by UC Berkeley law professor Stephen Sugarman entitled “Using Litigation to Make Change.” Gottlieb’s presentation focused on the underutilized legal tool of state consumer protection laws to stop unfair and deceptive practices that seek to sell junk foods and beverages to kids.
Michael Jacobson from the Center for Science in the Public Interest then discussed the litigation and litigation threats that his organization has been using for policy change.
The final panelist was Joseph Price, an attorney with Faegre and Benson in Minneapolis that defends the food industry. His presentation was critical of the use of litigation to fight childhood obesity and took time to focus on PHAI’s President, Dick Daynard, as well as those who seek to fight obesity who, themselves, are overweight or obese.
All of the proceedings are available via the archived webcast and the litigation panel can be seen here.
Discovery of Elevated Fructose Levels in Popular Soft Drinks Raises Important Legal Questions for Regulators and Consumers
Wednesday, October 27th, 2010
Prepared by Cara Wilking, J.D., Staff Attorney
What kinds of High Fructose Corn Syrup Are Generally Recognized as Safe for Use in the Food Supply?
Substances “reasonably expected to become a component of food” are food additives subject to premarket approval by the Food and Drug Administration (FDA), unless they are as generally recognized as safe (GRAS).[1] In 1983, the federal government listed high fructose corn syrup (HFCS) as GRAS, and the FDA affirmed that decision in 1996. Federal law defines HFCS as “a sweet, nutritive saccharide mixture containing either approximately 42 or 55 percent fructose.”[2] Accordingly, HFCS typically is commercially available as HFCS-42 (42% fructose) or HFCS-55 (55% fructose). The basic rationale behind granting HFCS GRAS status was that it contains essentially the same ratio of fructose to glucose as table sugar (table sugar is 50% fructose and 50% glucose). Consistent with this logic, in its 1996 review of the GRAS status of HFCS, the FDA expressly rejected a proposal to expand the definition of HFCS to include “HFCS-90” (90% fructose), “primarily because HFCS-90 does not contain approximately equimolar amounts of glucose and fructose.”[3] HFCS-90 does not have GRAS status, and FDA food labeling laws require that HFCS be listed as an ingredient separate from other sweeteners.[4]
Do Fructose Levels in Popular Soft Drinks Containing HFCS Conform to the GRAS Standard?
In a recent study published in the journal Obesity, Ventura et al. purchased a mix of twenty three bottled and fountain dispensed sweetened-beverages and had them tested by an independent laboratory to determine, among other things, the fructose to glucose ratio of popular full-calorie soft-drinks. Laboratory testing revealed that bottled full-calorie Pepsi, Coca-Cola and Sprite had fructose estimates of 64-65%, well in excess of the upper-level of 55% fructose generally recognized as safe by the Food and Drug Administration.[5] The study extrapolated from this finding that the elevated fructose levels equated to “18% higher fructose consumption than would be estimated assuming the value of 55% HFCS.”[6] This preliminary finding has potentially important public health implications,[7] and is important because a key part of the GRAS process is to estimate the population-wide consumption of the substance being evaluated. [8]
What Legal Issues Would Be Implicated by Elevated Fructose Levels in Popular Soft-Drinks?
Ventura et al.’s study reflects a very small sample size. Elevated fructose levels in popular soft drinks, if confirmed by additional testing implicate a number of legal issues for regulators and consumers.
Federal Prohibition of False and Misleading Food Labeling
The Federal Food Drug and Cosmetic Act prohibits false and misleading food labeling, and “food is misbranded if its labeling is false or misleading in any particular.”[9] Federal law specifically defines HFCS “as mixture containing either approximately 42 or 55 percent fructose.”[10] These are the only HFCS formulations that are GRAS and permitted for widespread use in the food supply without prior approval. Absent another source of fructose disclosed in the ingredients list, it would be false and misleading to list “HFCS” on the ingredient list when the product in fact contains a higher ratio of fructose to glucose than required by the legal definition of the ingredient. As such, under federal law the product would be misbranded.
Federal Prohibition of Adulterated Foods
The FDA summarized its adulterated food policy in a guidance document to the food industry as follows:
“Any substance added to a beverage or other conventional food that is an unapproved food additive (e.g., because it is not GRAS for its intended use) causes the food to be adulterated under section 402(a)(2)(C) of the FFDCA (21 U.S.C. 342(a)(2)(C)). Adulterated foods cannot be legally imported or marketed in the United States.”[11]
HFCS that does not conform to the GRAS ratio of no more than 55% fructose is not GRAS for widespread use in the food supply. Under a plain reading of the FDA’s adulterated food policy, use of such a sweetener in a beverage would constitute the use of an unapproved food additive rendering the product adulterated.
False and Misleading Advertising
Federal and state laws generally prohibit false and misleading advertising. In 2008, the Corn Refiners Association launched a national multimedia advertising and public relations campaign called “Changing the Conversation about High Fructose Corn Syrup.”[12] The central message of the campaign is that HFCS is essentially the same as table sugar with respect to the ratio of fructose to glucose and is therefore safe:
“High fructose corn syrup is nearly identical in composition to table sugar — both contain approximately 50% glucose and 50% fructose. Sugar and high fructose corn syrup have the same number of calories as most carbohydrates; both have four calories per gram. Because they are nearly compositionally equivalent, the human body cannot tell the difference between high fructose corn syrup and sugar.”[13]
If additional testing of foods and beverages sweetened with HFCS reveals widespread actual fructose levels in excess of 55%, then the representation that HFCS is “compositionally equivalent” to table sugar could amount to false and misleading advertising requiring action by the Federal Trade Commission and State Attorneys General.
REFERENCES
[1] US FDA, Determining the Regulatory Status of a Food Ingredient, http://www.fda.gov/Food/FoodIngredientsPackaging/FoodAdditives/ucm228269.htm (Oct. 8, 2010).
[2] 21 CFR § 184.1866(a).
[3] Direct Food Substances Affirmed as Generally Recognized as Safe; High Fructose Corn Syrup, 61 Fed. Reg. Volume 165, 43448 (Friday, August 23, 1996) (to be codified at 21 CFR pt. 182-184).
[4] See US FDA, Letter to Food Manufacturers about “And/Or” Ingredient Labeling of Nutritive Sweeteners in Soft Drink Products, http://www.fda.gov/Food/LabelingNutrition/FoodLabelingGuidanceRegulatoryInformation/InspectionCompliance/WarningOtherLetters/ucm110252.htm (July 5, 2005).
[5] Emily E. Ventura, Jaimie N. Davis & Michael I. Goran, Sugar Content of Popular Sweetened Beverages Based on Objective Laboratory Analysis: Focus on Fructose Content, __Obesity__, 5 (2010) .
[6] Id. at 6.
[7] See id. at 5-6 (discuss the various health consequences of the metabolic process triggered by fructose vs. glucose).
[8] US FDA, Guidance for Industry: Estimating Dietary Intake of Substances in Food, http://www.fda.gov/Food/GuidanceComplianceRegulatoryInformation/GuidanceDocuments/FoodIngredientsandPackaging/ucm074725.htm (August 2006).
[9] US FDA, Guidance for Industry: Factors that Distinguish Liquid Dietary Supplements from Beverages, Considerations Regarding Novel Ingredients, and Labeling for Beverages and Other Conventional Foods, http://www.fda.gov/Food/GuidanceComplianceRegulatoryInformation/GuidanceDocuments/DietarySupplements/ucm196903.htm (Dec. 2009).
[10] 21 CFR § 184.1866(a).
[11] US FDA, Guidance for Industry: Factors that Distinguish Liquid Dietary Supplements from Beverages, Considerations Regarding Novel Ingredients, and Labeling for Beverages and Other Conventional Foods (Dec. 2009).
[12] Corn Refiners Association, Our Mission, http://www.sweetsurprise.com/about-us/our-mission.
[13] Corn Refiners Association , High Fructose Corn Syrup Myths, http://www.sweetsurprise.com/myths-and-facts/top-hfcs-myths.
[1] US FDA, Determining the Regulatory Status of a Food Ingredient, http://www.fda.gov/Food/FoodIngredientsPackaging/FoodAdditives/ucm228269.htm (Oct. 8, 2010)
[1] 21 CFR § 184.1866(a).
[1] Direct Food Substances Affirmed as Generally Recognized as Safe; High Fructose Corn Syrup, 61 Fed. Reg. Volume 165,43448(Friday, August 23, 1996)
(to be codified at 21 CFR pt. 182-184).
[1] See US FDA, Letter to Food Manufacturers about “And/Or” Ingredient Labeling of Nutritive Sweeteners in Soft Drink Products, http://www.fda.gov/Food/LabelingNutrition/FoodLabelingGuidanceRegulatoryInformation/InspectionCompliance/WarningOtherLetters/ucm110252.htm (July 5, 2005).
[1] Emily E. Ventura, Jaimie N. Davis & Michael I. Goran, Sugar Content of Popular Sweetened Beverages Based on Objective Laboratory Analysis: Focus on Fructose Content, __Obesity__, 5 (2010) .
[1] Id. at 6.
[1] See id. at 5-6 (discuss the various health consequences of the metabolic process triggered by fructose vs. glucose).
[1] US FDA, Guidance for Industry: Estimating Dietary Intake of Substances in Food, http://www.fda.gov/Food/GuidanceComplianceRegulatoryInformation/GuidanceDocuments/FoodIngredientsandPackaging/ucm074725.htm (August 2006).
[1] US FDA, Guidance for Industry: Factors that Distinguish Liquid Dietary Supplements from Beverages, Considerations Regarding Novel Ingredients, and Labeling for Beverages and Other Conventional Foods, http://www.fda.gov/Food/GuidanceComplianceRegulatoryInformation/GuidanceDocuments/DietarySupplements/ucm196903.htm (Dec. 2009).
[1] 21 CFR § 184.1866(a).
[1] US FDA, Guidance for Industry: Factors that Distinguish Liquid Dietary Supplements from Beverages, Considerations Regarding Novel Ingredients, and Labeling for Beverages and Other Conventional Foods (Dec. 2009).
[1] Corn Refiners Association, Our Mission, http://www.sweetsurprise.com/about-us/our-mission.
[1] Corn Refiners Association , High Fructose Corn Syrup Myths, http://www.sweetsurprise.com/myths-and-facts/top-hfcs-myths.
PHAI Attorney and Noted Univ of IL Economist Look at Applying Tobacco Taxation and Other Pricing Strategies to Reduce Obesity
Wednesday, March 31st, 2010
University of Illinois, Chicago Economist, Frank J. Chaloupka, and PHAI Senior Staff Attorney, Patricia A. Davidson, have published an article commissioned by the Tobacco Control Legal Consortium that explores the applicability of tobacco control taxation and pricing strategies to obesity prevention. Key points include:
- Tobacco consumption responds to price changes. Higher taxes reduce consumption and prevalence, especially among youth and the poor. Higher taxes also raise government revenue that may be dedicated to tobacco control or other public health initiatives.
- Most tax increases are justified on policy and economic grounds.
- The legality of tax increases is not generally a significant issue, unlike restrictions on advertising and marketing, which often spark First Amendment commercial speech debates.
- The tobacco industry, concerned with long-term profitability, has responded to tax increases with a variety of discounting practices. Tobacco control advocates could respond more aggressively to this strategy by adopting laws to restrict discount tools, such as coupons, multi-pack discounts, and other price discounts, including removing their protection under minimum pricing laws. Although the industry may argue that limits on discounts raise First Amendment issues, this argument should not be persuasive because laws pertaining to pricing and discount practices do not implicate the commercial speech doctrine. Such laws only need to be rationally related to a legitimate public health purpose (e.g., reducing consumption) to withstand a court challenge.
- Proposed taxes on sugar-sweetened beverages raise many of the same policy and legal issues as tobacco taxes. The food industry’s arguments against them are also similar to those of the tobacco industry. Tax increases, as well as any laws limiting industry discounting practices, do not implicate the First Amendment and are legally defensible as reasonable measures to reduce consumption.
- Higher taxes on sugar-sweetened beverages, at least as a first step, may currently be more politically palatable and justifiable than a potentially difficult to define and administer tax on snack foods.
- The successful strategy of dedicating a portion of tax increases to public health programs, including subsidies for healthier options, should be part of the legal policy model for taxing sugar-sweetened beverages or snack foods.
PHAI publishes Case Study on NYC Menu Labeling Litigation
Monday, March 29th, 2010
PHAI documented the successful passage of the nation’s first restaurant calorie disclosure law. In an effort to address increases in obesity rates and obesity-related health problems, the New York City Department of Health and Mental Hygiene (“DOHMH”) amended the City’s Health Code on December 5, 2006 and then again on January 22, 2008 to require that chain restaurants post the number of calories contained in standardized menu items. The disclosure appears close to each item on the menu or menu board. Restaurant patrons are more likely to see and act upon these disclosures, compared to information posted in less obvious locations in restaurants or on websites.
Although several public health practitioners and organizations supported the concept of the disclosure law, its legality was untested in the courts when DOHMH acted. DOHMH knew it would face an organized and well-funded opposition. DOHMH nevertheless passed the disclosure law and faced two lawsuits. The final outcome was that DOHMH established a version of the disclosure law that was more comprehensive than originally intended. (The first version applied only to restaurants that voluntarily agreed to post calorie information. The final version applies to most chain restaurants, regardless of whether they want to post calorie information.) Numerous states and municipalities have subsequently passed disclosure law in their jurisdictions.
The decision by DOHMH to proceed was under-girded by some key factors. First, the scope of the increase in obesity prevalence was (and remains) alarming. The problem had been documented in health surveillance data. Second, several public health organizations have recommended the concept of mandating clear disclosure of calorie information for restaurant meals at the point of purchase. Third, organizational changes at DOHMH allowed public health practitioners to identify and focus on environmental risk factors for obesity. Fourth, questions of legality were addressed early on through a comprehensive internal legal review and dialogue that included a well-informed consideration of the potential public health benefits.
Funded by the Robert Wood Johnson Foundation’s Public Health Practice & Policy Solutions, PHAI used case study research methodology to investigate threats of litigation made during the proposal and passage of public health laws. The case studies examine this experience across a range of public health issues. Public health officials, attorneys and advocates provide insight into their decision-making and planning process in anticipation of and in response to legal challenges.
