“Push a cart through … any supermarket anywhere in America, and you just
might start believing in miracles—or at least in food miracles,” according
to Natasha Singer writing in The New York Times about the latest trends in
functional foods. “In aisle after aisle, wonders beckon. Foods and drinks to
help your heart, lower your cholesterol, trim your tummy, coddle your colon.
Toss them into your cart and you might feel better. Heck, you might even live
longer.” Singer asks whether these products are actually healthy “or are some
of them just hyped.”

Noting that the functional food market increased by nearly $10 billion since
2005 to $37.3 billion in 2009, Singer reports that federal regulators and
others are concerned about the accuracy of health marketing claims. The
article quotes New York University Professor Marion Nestle, who contends,
“Functional foods, they are not about health. They are about marketing.” As an
example of possibly misleading claims, the author points to an oatmeal-based
cereal that proclaims in large print that it “helps reduce cholesterol,” while the
small print indicates that three servings, at nearly 650 calories, would have to
be consumed to obtain the amount of soluble fiber recommended daily to
benefit health.

According to the article, consumers cannot evaluate such products and have to rely on experts and regulators to ensure that health-benefit claims are valid. While industry trade groups contend that most of the claims are within the letter of the law, the author reports that the Federal Trade Commission (FTC) has begun pursuing food companies that have allegedly crossed that line and secured agreements restricting the health-related claims they make. FTC Bureau of Consumer Protection Director David Vladeck is reportedly concerned that people will buy these products and, lacking health insurance, will forego flu shots or medical tests thinking the foods they eat will bolster their immunity or reduce the risk of disease. Vladeck said, “If people are going to spend their money for health benefits, they ought to get them.” Food and Drug Administration regulators have expressed frustration with limited resources in an environment where marketers simply change their claims after one is deemed misleading.

The author concludes by observing that whether functional foods actually
provide health benefits, they can evidently provide a placebo effect, because
“many people want to believe.”

About The Author

For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.

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