Why Isn't the Usual Agency Going After Kellogg?

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The FTC has imposed new advertising restrictions on Kellogg because of its claim that Rice Krispies support children's immunity. The company is not to make claims about "any health benefit of any food unless the claims are backed by scientific evidence and not misleading."

Under a previous order dealing with Frosted Mini-Wheats, Kellogg was not supposed to make claims about benefits to cognition on any of its cereals or snack foods unless the company could prove that the claims were backed by real science. This new decision extends that ruling to include any claim at all.

Okay, but I'm confused about several aspects of this decision:

    • How come the FTC is doing this and not the FDA? At some point years ago, regulatory responsibility was split between the FDA and the FTC. Since then, the FDA regulates claims on food package labels, whereas the FTC regulates advertising claims. I realize that food labels are a form of advertising, but it's unusual and surprising for the FTC to get involved in FDA-regulated matters.
    • As FoodNavigator also wonders, why didn't the FTC fine the company and, instead, write a harsh letter (PDF)?
    • Why is the FTC doing this? Kellogg agreed months ago to withdraw its immunity claim (see my November 5 post about the withdrawal). The boxes with the claim gradually disappeared from supermarket shelves and I haven't seen one for a long time.

So what's going on here? Is the FTC getting serious about regulation (and about time, too)? Or is the FDA sitting back and letting the FTC do its enforcement work?

Could this be why the FDA hasn't sent a warning letter to Mead-Johnson, the maker of the chocolate toddler formula with three health claims aimed at kids ages one to three. I posted about this product recently, but haven't heard whether the FDA is doing anything about it. Can the FTC be on this case but waiting for investigations to be completed before taking action?

Kellogg, it seems, is under fire on all fronts. The Center for Science in the Public Interest's Margo Wootan sent me the recent decision by the Children's Advertising Review Unit of the Better Business Bureau that Kellogg must stop advertising Pop-Tarts to kids:

CARU was concerned that the product packaging, which features berries and states "Made with Real Fruit" for several of Kellogg's Pop-Tarts® products that have fruit in their names, impliedly represents to children that the products contain substantial amounts of fruit.

In fact, according to CARU, Pop-Tarts contain less than 6 percent fruit and less than 2 percent of the fruit shown in the advertising. Kellogg claimed that its marketing was not aimed at kids, but it lost that one.

It's great that regulatory agencies like the FTC and the FDA (and voluntary agencies like CARU) are regulating, but it's hard to keep track of who is doing what. Nothing to do but wait and see what happens next. Stay tuned.

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Marion Nestle is a professor in the Department of Nutrition, Food Studies, and Public Health at New York University. She is the author of Food Politics, Safe Food, What to Eat, and Pet Food Politics. More

Nestle also holds appointments as Professor of Sociology at NYU and Visiting Professor of Nutritional Sciences at Cornell. She is the author of three prize-winning books: Food Politics: How the Food Industry Influences Nutrition and Health (revised edition, 2007), Safe Food: The Politics of Food Safety (2003), and What to Eat (2006). Her most recent book is Feed Your Pet Right: The Authoritative Guide to Feeding Your Dog and Cat. She writes the Food Matters column for The San Francisco Chronicle and blogs almost daily at Food Politics.

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