For more than a year now, I've been watching with mounting disbelief as Kellogg Co. sees one misguided health claim after another shot down by government authorities.
The latest slap came in June from the Federal Trade Commission, which reached a settlement with the world's largest cereal company over claims that its Rice Krispies cereal "now helps support your child's immunity with 25 percent of the daily value of antioxidants and nutrients – vitamins A, B., C and E."
"We expect more from a great American company than making dubious claims – not once, but twice – that its cereals improve children's health." No, that wasn't Michael Jacobson from Center for Science in the Public Interest or some other critic of "big food" speaking; that was FTC Chairman Jon Leibowitz. "Next time, Kellogg needs to stop and think twice about the claims it's making before rolling out a new ad campaign, so parents can make the best choices for their children."
You gotta wonder what the marketers at Kellogg have been smoking. That "twice" Leibowitz refers to includes the FTC's early 2009 slap at the cereal company for claiming its Frosted Mini Wheats will increase children's classroom attentiveness by 20 percent.
While Froot Loops were not the sole cause for the suspension of the Smart Choices labeling program back in October 2009 – just two months after its official launch -- the sugary cereal became a poster child for the program's shortcomings when Froot Loops bore the now extinct green check mark.
The cereal met program goals for fiber and vitamins A and C and came in at the maximum amount of sugar allowed under the program for cereals, 12g per serving. However, that was 41 percent of the product, measured by weight.
"As a trusted, long-established company with a presence in millions of American homes, Kellogg must not shirk its responsibility to do the right thing when it advertises the food we feed our children," Chairman Leibowitz and another FTC commissioner, Julie Brill, and wrote in an FTC statement.
This health claims stuff is tricky business, but it's one of those things for which you need to err on the side of caution. "The food industry has been hit hard by questionable health claims. Some incidents were warranted; many were not," says Brian Dickerson, a partner in the Naples, Fla., law firm Roetzel & Andress, which represents food manufacturers involved in product liability suits. "I guess it's the competitive nature of the business. I think it's an internal battle within these companies between the sales & marketing departments wanting to pump up sales and the legal departments warning them they're on the edge. In many cases, sales & marketing wins."
However, Dickerson also said there may be a willingness to test the limits of the laws because to date the federal agencies involved usually have been gentle in their admonishments and the civil lawsuits that may arise are difficult for plaintiffs to win.
Dickerson says he's been involved with defending food companies in class-action lawsuits initiated at the state level, which are almost always pre-empted to the federal level, where the food companies are likely to obtain successful dismissals because of the lack of strong and definitive punitive decisions by the FDA, FTC and other federal agencies.
But there's an even higher court, I tell him: the court of public opinion. The one that has, in small but growing numbers, embraced movies such as "Food Inc.," "Fast Food Nation" and "King Corn." The judgments there are not immediately quantifiable, but in the long run the penalties are more severe.
Combining nutrition and taste in children's cereals undoubtedly is difficult. Kellogg is not alone on the hot seat – General Mills has been criticized for claims, as well. And frankly I'm a fan of Kellogg – they were our Processor of the Year in 2006.
But reducing food science and nutrition to the level of late-night infomercials will harm the entire food & beverage industry -- especially at a time when consumers are looking to the food industry for solutions to obesity and palliative health.
The food industry is capable of – and obligated to do – much better.