Yale University’s Rudd Center for Food Policy and Obesity and the Robert Wood Johnson Foundation’s (RWJF’s) Bridging the Gap research program recently published a study in the American Journal of Preventative Medicine concluding that the food and beverage industry “still spends the bulk of its money to promote unhealthy products” to children and teens. Lisa Powell, et al., “Food Marketing Expenditures Aimed at Youth: Putting the Numbers in Context,” American Journal of Preventative Medicine, August 2013. Seeking to contextualize a Federal Trade Commission (FTC) report that found food and beverage companies spent less on youth-focused marketing in 2009 than in 2006, the study suggests that the expenditure trends highlighted by FTC ultimately fail to account for changes in the marketing landscape that allegedly negate the overall decrease in spending. In particular, according to a concurrent issue brief, Rudd Center and Bridging the Gap researchers reported that “the vast majority of…
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A Florida resident has filed a putative statewide class action against Gruma Corp., alleging that the company falsely advertises its Mission® Restaurant Style Tortilla chip products as “all natural” when they contain genetically modified organisms (GMOs). Griffith v. Gruma Corp., No. 13-80791 (S.D. Fla., filed August 12, 2013). Alleging violations of the Florida Deceptive and Unfair Trade Practices Act and contending that her claims “mirror the labeling, packaging, and advertising requirements mandated by federal regulations and laws,” the plaintiff claims that the products are misbranded and the labels are false and misleading because GMOs are not natural and she understood that product representation to mean that the chips contained no GMO ingredients. Alleging damages in excess of $5 million, the plaintiff seeks injunctive relief, restitution, disgorgement, actual damages, attorney’s fees, costs, and interest.
The U.K. Advertising Standards Agency (ASA) has ruled that pasta manufacturer NAH Foods, Ltd. cannot use a magazine ad for its “Slim Pasta” that features the heading “Zero Calorie Pasta?” and the subheading “UK & Ireland’s No.1 Best Selling Zero Calorie Pasta, Noodles & Rice” because tests of the product revealed that it actually contains 7.7 calories per 100 grams. In its defense, the company pointed out that the advertisement’s heading, “zero calorie pasta?”, contained a question mark and argued that it had not claimed “zero calorie pasta,” but ASA, while noting the question mark, decided that “consumers would infer that the advertiser was selling zero calorie pasta.” According to European regulation, a food can claim to be energy-free if it contains no more than 4 calories per 100 ml, and to make a low-energy claim, a food must contain no more 40 calories per 100 g for solid foods,…
A pair of recent articles in The New York Times has raised questions about the tracking and surveillance practices used by marketers to gather information about consumers shopping in stores and online. The first article, “Attention, Shoppers: Store is Tracking Your Cell,” discusses new technology that allows retailers “to track customers’ movements by following the Wi-Fi signals from their smartphones.” According to Times writers Stephanie Clifford and Quentin Hardy, these stores are experimenting with a combination of smartphone tracking, video surveillance and apps to glean data about shoppers “as varied as their sex, how many minutes they spend in the candy aisle and how long they look at merchandise before buying it.” “But while consumers seem to have no problem with cookies, profiles and other online tools that let e-commerce sites know who they are and how they shop, some bristle at the physical version, at a time when government…
A New York resident has filed a putative class action against Boar’s Head Provisions Co., alleging that the company’s advertising and labeling representations—“47% lower sodium,” “42% lower sodium,” and “40% lower sodium”—for some of its deli meats, including turkey breast and ham, contain as much sodium as its regular deli meat products and a higher percentage of sodium than stated when compared to U.S. Department of Agriculture (USDA) reference products. Mackles v. Boar’s Head Provisions, Co., Inc., No. 13-4855 (S.D.N.Y., filed July 12, 2013). According to the complaint, the defendant’s representations are inaccurate by a factor of more than 10 percent. The plaintiff also alleges that when he asked the company about the lower-sodium claims on its product labels, he received a letter stating that they “were submitted to and approved by the USDA.” On further investigation, the plaintiff allegedly learned from USDA that companies must ensure labeling accuracy, and…
The U.K. Advertising Standards Authority (ASA) has upheld two complaints alleging that a recent advertisement for Heineken beer “condoned or encouraged the consumption of alcohol in a football stadium within sight of the pitch, which was an illegal activity,” and “condoned or encouraged people to take glass bottles into a football stadium, which was not permitted.” The TV commercial in question apparently featured a man traveling to the UEFA Champions League final game, where he and a woman were shown taking a seat in view of the field and “clinking the two bottles of Heineken together in a celebratory fashion.” Although Heineken UK Ltd. described the ad as a “light-hearted” and “tongue-in-cheek” fantasy, ASA ultimately agreed with complainants that the final scene implied that the main characters “were going to consume beer during the football match.” “We considered that the ad could give the impression to viewers that such behavior,…
The Obesity Policy Coalition (OPC) has announced that the Australian Advertising Standards Board (ASB) has upheld its complaints alleging that TV commercials for Kellogg Co.’s LCM® cereal bars violated the Responsible Children’s Marketing Initiative (RCMI). According to OPC, the two advertisements in question were directed primarily toward children but failed to promote “a healthy dietary choice consistent with established scientific or Australian government standards,” healthy dietary habits or physical activity. In upholding the two complaints, ASB disagreed with Kellogg’s claims that the commercials were not aired during programming “where the proportion of children under 12 years of age is below 25 percent,” ruling instead that LCM® products “do not meet the Kellogg Global Nutrient Criteria for a healthier dietary choice” and therefore are “not permitted to be advertised to children under 12.” The board also found that although the commercials did not violate any provisions of the Australian Association of…
Yale University’s Rudd Center for Food Policy and Obesity has published a paper criticizing the use of food and beverage advertising on websites directed at children. A.E. Ustjanauskas, et al., “Food and beverage advertising on children’s web sites,” Pediatric Obesity, July 2013. Using data provided by comScore, researchers evaluated a total of 3.4 billion food and beverage advertisements shown over a one-year period on 72 popular children’s sites, including Nick.com, NeoPets.com and CartoonNetwork.com. Of the 254 different food products advertised, cereals apparently accounted for 45 percent of ad impressions, followed by fast food restaurants (19 percent) and prepared foods and meals (8 percent). The study singled out companies committed to the Children’s Food and Beverage Advertising Initiative (CFBAI), reporting that signatories were responsible for 89 percent of all food and beverage advertisements on children’s sites. In particular, the authors claimed that CFBAI companies “placed 320 million impressions for brands not…
A federal court in Australia has determined that processors advertising their chickens as “free to roam” on packaging and in advertisements and publications were liable to mislead the public as to the nature and characteristics of the product. Australian Competition & Consumer Comm’n v. Turi Foods Pty. Ltd., (No. 4) [2013] FCA 665 (Fed. Ct. of Austl., decided July 8, 2013). The court’s opinion details the efforts undertaken to determine stocking densities at various stages of a chicken’s development and includes the results of site visits by the court, support staff and the parties’ legal representatives. At certain times in their development, according to the court, thousands of chickens live in such close proximity in the sheds that “very little, if any, of the floor surface could be seen.” Thus, the court ruled that the “impugned statements . . . were apt to mislead and deceive and were false insofar…
A federal court in California has dismissed in part and granted in part allegations in a second amended, putative class complaint filed against three food and beverage companies for alleged violations of state consumer fraud laws in the labeling claims on a plethora of products including chewing gum, juices, cookies, crackers, granola, stuffing, and cheese. Ivie v. Kraft Foods Global, Inc., No. 12-2554 (N.D. Cal., San Jose Div., order entered June 28, 2013). Information about a previous ruling in the case appears in Issue 473 of this Update. The court dismissed with prejudice (i) the plaintiff’s claim that a “natural flavors” label on Crystal Light® is misleading because the product contains artificial flavors; the court found that the two specific ingredients alleged to be “artificial” flavors are artificial ingredients and nothing in the Food and Drug Administration regulations suggests that potassium citrate and sodium citrate are flavors; and (ii) the…
