States, food companies battle over health claims


Companies often settle suits with governmental agencies without admitting any wrongdoing. But just the same, they agree to stop doing whatever they said they were not doing wrong and they agree to pay court costs, lawyers fees and maybe a fine.

To those without legal training, it is a fascinating minuet.

Over the last few years there have been many such legal battles, especially over the fairness of health claims made in the advertising and labeling of food products.

Recently, half a dozen states charged Kellogg's with deceptive advertising for saying that a snack of Frosted Flakes was more nutritious than an apple.

Ten states have settled a suit against Campbell Soup Co. for claiming that some of its soups can decrease the risk of heart disease.

Such cases have proliferated in the last 10 years because of deregulation.

"During the Reagan administration, the feeling was that industry should be left alone," said Marion Nestle, chairman of the Department of Nutrition at New York University and a nutrition policy adviser in the federal Department of Health and Human Services in the Reagan years.

The Bush administration has taken a tougher regulatory stand, and Congress has passed the Nutrition Labeling and Education Act which will, when it goes into effect, strictly limit health claims.

Meanwhile, states continue to do most of the litigating, with the most active attorneys general -- those in New York, California, Illinois, Iowa, Minnesota, Massachusetts, Florida, Wisconsin and Missouri -- busy enough to be widely known as the "food police."

The most contentious case pits Iowa against Kellogg Co. In 1988, the Iowa attorney general began negotiating with Kellogg over the labeling and advertising of three of its cereals: Special K, 40 Plus Bran Flakes and Frosted Flakes.

Advertisements for Special K claimed that the high protein content of the cereal would help dieters lose fat without losing muscle.

The Iowa attorney general's office contended that only extremely obese people on very low-calorie diets lost muscle tissue while ,, dieting, and that the amount of protein in Special K was not enough to make a difference.

The label for 40 Plus Bran Flakes says the cereal is intended especially for people over 40.

Iowa charged that there was no indication that people over 40 have dietary needs different from those of people under 40, and that Kellogg's claims lacked substantiation.

Ads for Frosted Flakes said the product was a healthy snack and superior to other snacks, including bananas, oranges, apples and cantaloupe.

The commercial also said a 1-ounce serving of Frosted Flakes had less sugar than an apple.

But the attorney general's office said that the ads failed to disclose that Frosted Flakes are 40 percent sugar and that a large proportion of its calories have no nutritional value, while the fruits to which it compared itself contain nutrients lacking in the cereal.

When Iowa thought it was close to a settlement with Kellogg, the company turned around and sued the state, charging harassment, and asked the U.S. District Court in Des Moines to bar the state from interfering with Kellogg advertisements.

Iowa has countersued, seeking corrective advertising for the claims and asking the court to fine Kellogg $40,000 for each time it has made such claims.

Five other states -- California, Florida, Minnesota, Texas and Wisconsin -- have joined Iowa's suit.

There the matter rests. The commercials are off the air.

Almost as contentious has been the Heartwise cereal case, brought by Texas against Kellogg early in 1990.

The state wanted Kellogg to make sure that consumers knew that Heartwise contains psyllium, that psyllium is a laxative and that some people can have severe allergic reactions to it.

The Texas Health Department told Kellogg that if its objections to the cereal packaging were not addressed, the cereal could not be sold in Texas.

In August, Kellogg sued Texas in federal court and within a week, sale of Heartwise was banned in the state.

Kellogg has asked for a preliminary injunction against the ban; the request is pending and Heartwise is not being sold in Texas.

In October, the company added a statement to the cereal label warning of possible allergic reaction.

Steve Gardner, a Texas assistant district attorney, characterizes as a "backhanded warning in mice type."

Such lawsuits have led to sharp exchanges. Mr. Gardner said in a telephone interview:

"Kellogg constantly lies about its products. I don't believe anything Kellogg tells me; they've lied to me too many times.

"Companies under investigation by states these days feel they have First Amendment rights to lie to their customers. We don't think they have a First Amendment right to lie."

Joseph M. Stewart, senior vice president for corporate affairs at Kellogg, said the company was "shocked that a public official would make such outrageous, inflammatory and irresponsible comments."

"It certainly has no credibility," he added, "when you consider it against the fact we've been recognized by many professional health organizations, government agencies and consumer groups for the positive role we have played in bringing important nutrition and health information to the public."

Texas has just settled another case, filed in 1989, against Quaker Oats Co. over its advertising and labeling claims for oatmeal.

The company contended that Quaker Oats could help reduce cholesterol. Texas said that the company was exaggerating the effect of oats on cholesterol levels and that there was insufficient evidence to make the claim.

Texas sued Quaker Oats because it could not negotiate a settlement; Quaker Oats sued Texas, contending the state did not have jurisdiction and was interfering with its right to free speech.

Last month both sides dropped their suits. The offending advertising and labeling have been discontinued and Quaker is contributing at least $75,000 worth of food products to Texas food banks.

Quaker maintains that it reserves the right to resume the advertising and labeling if federal law allows it.

The new nutrition-labeling legislation, which takes effect in 1993, will officially sanction the states to do what they have been doing since the mid-1980s: Enforce federal regulations.

"It allows the states to assist the FDA," said Ray Johnson, an assistant attorney general in Iowa.

"You won't have to duplicate effort; you don't have to go after misleading advertising one state at a time, reinventing the wheel each time."

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