The European Food Safety Authority (EFSA) recently published a second series of opinions on a list of “general function” health claims for foods. EFSA’s Panel on Dietetic Products, Nutrition and Allergies assessed the scientific data submitted to substantiate more than 400 hundred health claims; its opinions are forwarded to the European Commission and member states, which ultimately decide whether to authorize the claims. Among other matters, the panel generally allowed adequately supported claims related to vitamins and minerals, but rejected “probiotic” and “antioxidant properties” claims for lack of information and evidence. EFSA apparently expects to complete its work by 2011, depending on the final number of claims received. See EFSA News Release, February 25, 2010.
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The Canadian government has announced a January 20, 1010, webcast titled “Health Claims in Canada: An Update on Function Claims and Probiotic Claims for Food.” Presented by Agriculture and Agri-Food Canada, Health Canada and the Canadian Food Inspection Agency (CFIA), the Webcast will (i) “provide an update on the development of a modernized framework for health claims for food and the future directions for managing health claims”; (ii) “present new guidance on function claims and probiotic claims, and the requirements for scientific evidence to validate claims” and (iii) provide insights into CFIA’s enforcement approach.
According to ConsumerLab.com, many of the probiotic supplements it tested contained far less of the amount of viable organisms advertised, due, primarily, to the death of the purportedly beneficial organisms after manufacture. Some companies apparently qualify their claims of cell amounts by stating “at the time of manufacture” on product labels. ConsumerLab’s president was quoted as saying, “It’s shocking how many products really don’t have what they claim on their labels. The buyer has to be careful.” Those promoting probiotics reportedly claim that 1 billion organisms will provide some benefit for digestion and some infections, so those products starting with tens of billions of live cells likely have the minimum amount deemed necessary by the time of consumption. At least one company responded to the study by claiming that its marketing, which includes the qualifier, is not deceptive. According to the company that makes Nature’s Secret Ultimate Probiotics®, which was…
“Just as a doctor would prescribe different antibiotics for strep throat or tuberculosis, different probiotic species and strains confer different health benefits,” writes New York Times columnist Tara Parker-Pope in this article examining food-labeling claims that link Lactobacillus and other probiotic families to improved digestive health. According to Parker-Pope, some experts and scientific studies have suggested that specific probiotic strains may reduce diarrhea and the symptoms of irritable bowel syndrome, but researchers have stopped short of a consensus on disease prevention and overall health maintenance. “It’s a huge problem for the consumer to try and make heads or tails of whether the products that are out there really work,” stated one assistant professor of medicine at Tufts University. The article notes that recent litigation involving yogurt maker Dannon Co. has also drawn attention to the issue. The company has apparently agreed to list the scientific names of the probiotic strains in its…
Without admitting liability for alleged misleading advertising involving its probiotic yogurt products, The Dannon Co. has agreed to settle claims in seven putative class actions for $35 million. Gemelas v. The Dannon Co., Inc., No. 08-00236 (N.D. Ohio, stipulation of settlement filed September 18, 2009). If approved by the court, the settlement would also require the company to modify the advertising and labeling for its Activia® and DanActive® products to explain how they “regulate the digestive system” and to modify promotional statements about the products’ effects on the digestive tract’s immune system. Under the proposed settlement, class claimants can obtain $15 by submitting a claim form, $15-$30 by submitting a claim form signed under penalty of perjury, and $30-$100 by submitting a claim form signed under penalty of perjury and register receipts or other sufficient proofs of purchase. The amount ultimately paid to claimants will depend on the number of…
A woman who alleges that General Mills, Inc. deceives the public by claiming its Yo-Plus® probiotic yogurt is beneficial for human digestion has filed a motion for class certification in a federal court in Florida. Fitzpatrick v. General Mills, Inc., No. 09-60412 (S.D. Fla., filed August 4, 2009). More information about the litigation appears in issue 296 of this Update. The plaintiff contends that the company cannot substantiate its claims that the yogurt’s trademarked “unique blend of live probiotic cultures and natural fiber,” “helps keep your digestive system right on track.” She seeks damages in excess of $5 million, alleging that consumers paid premium prices for a product that has upset the yogurt market and gained a significant market share. Relying on a favorable class certification ruling in similar litigation against Dannon Co., Inc. in California, the plaintiff contends that the claims readily meet Rule 23 class certification requirements. She…
A Florida resident has filed a putative class action lawsuit against General Mills, Inc., in federal court, alleging that its claims about Yo-Plus® yogurt violate the state’s deceptive and unfair trade practices law and constitute a breach of express warranty. Fitzpatrick v. General Mills, Inc., No. 09-60412 (S.D. Fla., filed March 17, 2009). Seeking to certify a class of Florida Yo-Plus® purchasers, the plaintiff alleges that the company cannot substantiate its claims that the yogurt’s trademarked “unique blend of live probiotic cultures and natural fiber,” referred to in marketing and on product labels as Optibalance™, “helps keep your digestive system right on track.” According to the complaint, the unaware consumer “is led to believe that General Mills’ blend of ‘probiotic’ bacterial strains and small amounts of fiber will, in fact, improve the digestive systems of healthy people. In fact, people’s bodies already maintain the proper balance of intestinal bacteria.” The…
