CRACKING DOWN ON MISLEADING FOOD ADS

Mary Engle is Associate Director of Advertising Practices at the Federal Trade Commission (FTC). Among the many responsibilities of this division is regulating advertising claims on over-the-counter drugs, dietary supplements, and other health products. Here she discusses the FTC’s role in tackling fraudulent and misleading ads.

How big of a problem is misleading or fraudulent health advertising in the U.S.?

I think it’s very concerning, because it’s so important for consumers to get accurate health information when they have an issue that they need to address. What we often see with misleading or fraudulent health advertising is that consumers are being offered a miracle cure or a silver bullet for a problem that can’t be solved that easily. It not only makes consumers waste their money on something that doesn’t work, but they also may not take steps they need to take to solve their health problem. I don’t have an exact estimate, but I think it’s safe to assume that consumers spend in the hundreds of millions to billions of dollars annually on products that turn out to be fraudulent or ineffective.

Can you discuss some noteworthy recent actions of the agency against misleading or fraudulent health advertising?

One example is a case we settled with a company over a product called Supple, which was a powder that you could make into a drink. The product, which contains glucosamine and chondroitin, was purported to treat pain, particularly the pain of arthritis, as well as to be able to rebuild your joints or cartilage. It was presented almost like a miracle in terms of relieving chronic pain. It was sold via infomercials that were on television and the radio all the time. I think it was an important case because glucosamine and chondroitin have been marketed as arthritis treatments for years, and people really believe they are effective for joint pain, but the evidence isn’t there. The majority of good studies have shown that glucosamine and chondroitin do not work for arthritis pain and do not work to rebuild your joints. Our settlement with the company requires that in the future they have good clinical studies to back up any disease-related claims they may make. In addition, when we settle cases, we try to get money back for consumers. In this case, we were able to get a few hundred thousand dollars back for consumers who had bought the product.

Another noteworthy case is still in litigation, against a company that sells Prevagen, a memory supplement that is widely advertised. It says that it’s made with an ingredient originally found in jellyfish. The maker of Prevegan advertises it as improving memory, providing cognitive benefits, and being clinically shown to work. Our contention is that these claims are false and unsubstantiated. The company so far has not agreed to settle.

Another example is supplements that claim to help with opiate withdrawal. One company that recently settled with the FTC is called Withdrawal-Ease. It contained a cocktail of herbal ingredients, including lemon balm, passionflower, and valerian. The name clearly suggests that the product eases withdrawal symptoms. But we alleged that the company lacked adequate evidence that it worked. This is a serious problem. We have an opiate addiction epidemic in this country, and there are prescription drugs that are proven to help with withdrawal. Getting off of opiates is something that should be done under the supervision of a physician, not on one’s own. This is an example of misleading advertising that may deter consumers from getting or using treatments that work.

What are some tactics that companies use to trick consumers or otherwise skirt the rules?

One of the things we see a lot is ads that talk about “scientific breakthroughs” or use a lot of jargon to explain how the product works and what its mechanism of action is in scientific terms. Another technique we see is the use of compelling consumer testimonials. Often they’re from people who have been experiencing a problem, sometimes for a long time—they are overweight, for example, and have tried every diet there is and never been successful—and then they have amazing success losing weight with the advertiser’s product. But these testimonials are sometimes completely made up, or greatly exaggerated. Or the person may have had success but not necessarily due to the product, but rather because they did other things while using it, like eating a reduced-calorie diet and exercising.

Some ads for health products are made to look like editorial content, even though they’re really sponsored by the advertiser. Is this deceptive?

This is an important issue that we have addressed in several cases. The FTC says that advertising needs to be identifiable or recognizable as advertising. It can’t be disguised as editorial content. Advertisers are under an obligation to make sure that whenever they’re promoting their product in whatever medium it is, consumers can recognize it as advertising.

For example, we settled a case a couple of years ago with a company called Nourish Life that was promoting a dietary supplement called Speak as helping children with speech disorders to be able to speak. It contained a number of different vitamins. There was a compelling testimonial from the parent of a child who was five years old and who, according to the parent, couldn’t speak until she gave him the supplement, at which point he began talking in complete sentences. The company also ran a website called ApraxiaResearch.com [since taken down], and because that’s the name of a real speech disorder, it looked like it was an independent site that provided research and information on apraxia. But in fact it was a disguised ad for Speak. In that case, we alleged that not only did the company make deceptive claims about what the supplement could do, but also that the format of the advertising was deceptive.

In another case, which we settled in 2016, a company called Smart Click Media was providing misleading “Doctor Trusted” seals to websites that sold dietary supplements. For a fee, the company would allow the website to display the seal, which if clicked led to a statement saying that an independent medical doctor had evaluated the products and that the website was making “reasonable science-based health claims.” But the seal turned out to be meaningless. A couple of doctors were paid just to give the site a once-over and see if it had a return policy and displayed an address and phone number. But our case alleged that they didn’t evaluate whether the sites had proof for the health claims they made for the products.

I’ve heard that bloggers are sometimes invited to and encouraged to post to social media from events sponsored by pharmaceutical companies, often for financial compensation. But it may not be clear to the consumer that the blogger is being paid or otherwise incentivized to post. How do you deal with this?

In a case like that, the drug company should make sure that the tweets or other social media posts, such as on Instagram or Facebook, state that they are sponsored. By law, any paid-for advertisement has to be disclosed as such. And a tweet counts as an ad if it’s being paid for by the company—either by directly paying the blogger or providing valuable incentives for them to promote the company and its product. If the blogger or whoever is promoting the product doesn’t disclose that they are being compensated, both they and the company are potentially liable.

Typically in our investigations we’ll go after the advertiser first, in this case the drug manufacturer. But we would also look at the public relations firm or agency that put on the event, if the drug company was working with one. And the individual blogger or people posting may also be responsible. We recently sent a bunch of letters to people with a lot of followers on Instagram who were posting photos and not disclosing that they were being paid by brands to do so. This didn’t involve health and wellness products specifically. But we had to remind the individuals that they are obligated to disclose that they are sponsored.

What do you think has been the FTC’s most important victory against false or misleading advertising during your tenure?

I would say the most important case was our lawsuit against the pomegranate juice Pom Wonderful, in which we challenged ads that claimed that drinking Pom Wonderful could treat or prevent heart disease, prostate cancer, and erectile dysfunction. They did not settle with us, so we had to litigate that case. We won and they appealed it. And we won in the DC Circuit Court of Appeals. They asked for the Supreme Court to review it, and the Court refused. The case is over. And it was a really important victory. We challenged disease claims both for the juice and for two supplement products made by the same company.

What was important about that case was that under FTC law the same rules on advertising apply no matter what kind of product you are. So just because the juice was a food and not a pill didn’t mean that they could get away with making unsupported claims. They still needed to have sound science to back up what they were saying—which in this case would be randomized controlled trials to prove the juice could prevent or treat heart disease, prostate cancer, or erectile dysfunction.

What can consumers do to protect themselves from false or misleading advertising?

Always come to advertising claims with a skeptical eye. If you see mention of a miracle breakthrough or something only now becoming available in the U.S. when it was just in Europe before, or there’s a lot of scientific jargon, be skeptical of those ads. Do your health research on reputable websites that you can trust, such as those run by the NIH or other government agencies, or by academic institutions. If you buy a product, pay with a credit card so you can reverse the charge if needed.

Also, be very careful about free trial offers. We see con artists will say there’s no risk, just try it for $4.99 and if you’re not satisfied, you can return it in 30 days and you’ll get your money back. But that won’t be the case. Once the company has your billing information, they may start charging your credit card monthly without your realizing it, or taking auto-payments from your bank account. Or they might do auto-ship and continue to send you something each month even though you didn’t agree to it. It can be difficult or impossible to return the products once you have them because the companies have so many restrictions on how to return them. We’ve also seen many cases of fraudulent billing with these companies. If any of these things happen to you, you can file a complaint through the FTC website.

The restaurant industry is in a slump and one of the culprits is the popularity of desktop dining. The number of Americans going out to lunch hit its lowest level in four decades. People don’t have time for a one-hour lunch, they want to save money or their employers provide meals for free. Desktop dining cost the industry $3.2 billion last year.

People are leading busier lives that give them less time to cook at home, and yet more restaurants are losing money and shutting down. The two seemingly conflicting facts can be explained in one word: takeout. The trend toward people eating more food away from home continues to rise, so it seems to be largely a takeout story.

Consumption of food outside the home accounts for about half of total food spending, a number that has held steady for about 12 years. Since there hasn’t been an increase, the downshift in the restaurant industry is on macroeconomic forces and competition from supermarkets.

It’s the demand of consumers for convenience. They have less time, they have more flexible hours, so they want to have lunch more quickly. Restaurants are going to be working on deliveries much harder in the future.

One of the points that has not been emphasized enough is that people are concerned about their health and they want to have more control of the meals that they have in terms of the size and the quality.

Here’s where supermarkets come in. Whole Foods, Harris Teeter, Kroger, Publix and other grocers offer an array of prepared meals that customers can grab and go. They are pulling in customers who don’t have time for a sit-down meal or to cook at home.

The prices of food at supermarkets, relative to the prices of food at restaurants, has been declining over the past five years. This is definitely playing in favor of the supermarket sector because people are finding cheaper food in the supermarket.

More restaurants are offering breakfast, chasing the trend of consumers who are going out for their first meal of the day. But breakfast meals have a smaller ticket, so that also has an impact on restaurants. That revenue gap is widened by the loss of alcohol sales from customers who don’t linger in a restaurant over lunch or dinner. Sale of alcohol is a factor on margin. If people are doing takeout or delivery, that sale is entirely gone.

The fast-casual chain Panera recently announced it intends to hire more employees to begin delivery service, a smart move that could help the company capture a large share of office workers who want to eat in.

But not every restaurant will be able to follow suit. So few of the chains have been able to specialize in delivery service. The pizza space is the exception, and something like two-thirds of delivery meals are still pizza. Those casual dining chains, the sit-down ones, it’s a bigger step for them to go to delivery than the fast-casual chains that just crank out the meals.

Adapting to delivery introduces a plateful of logistics for which many restaurants aren’t ready. It’s harder because of the type of meals that they offer and their big investments in having people come to their restaurants and spend time there.

Food service is one of the largest employment sectors because it is a labor-intensive activity. As restaurants adjust their business models, employees will be affected in terms of scheduling, positions and pay. There’s also minimum wage pressure on these restaurants. For the chains, as they think about their strategic futures and their costs, that’s going to be a big piece of it.

The impact will also hit the supply chain. It’s interesting because from the supply-chain perspective, when you are serving restaurants, your business model is completely different than when you are serving the supermarket industry in terms of packaging standards and presentation of the product. In the grocery store, products are usually sold fresh, so you want them to look good.

Labor costs will be a major issue for restaurants in the future. They’ve got changing customer preferences, the changing nature of the supply chain and changing labor pressures. The ones who win will be the ones who figure out how best to manage that. It’s not easy. It’s not a trivial job to do it right and provide the customer with an in-restaurant delightful experience that’s not going to annoy them in some way.

More restaurants are turning to technology to lure customers through apps that can manage reward points or facilitate ordering. Even if you want to eat on the premises, you see people who want to order in advance. If you are not applying technology, you are going to be way behind the industry standards for business models.

Consumers may not want to deal with app overload. One thing we do have to think about with each of these brands having an app is how many apps consumers are willing to have on their phone. And those aren’t small investments to get the app going and the kinds of services that people are going to want.

Restaurants can turn the tables on sliding sales by focusing on their customers. They should keep the focus on consumers and understand what the consumers want and how they are consuming meals. Why are they going less and less to restaurants? Really, at the end, consumers are king. Restaurants are there to make them happy, keep them coming and keep them loyal. They just need to adapt.

Starbucks is an example of success. In the early 2000s, when they started getting new consumers who wanted faster, good-quality coffee but they didn’t want to linger, they changed their business model, and they are what they are today.

But it’s tough to keep up with customers when tastes are fickle. The companies that do the best prediction of consumer preferences and can execute on it are going to win. The mix of fine dining and quick serve is always going to be there in the same individual.

You should never eat in restaurants, because they use a lot of salt and sugar for better taste, putting the health of their customers at risk.  By law, certain levels of rodent and insect filth are also permitted in food. Moreover, the handling of paper money brings a lot of germs to the food served. Paper money has more germs than any other substance on Earth. 

Soda consumption has been linked with diabetes, hypertension, kidney stones, and tooth decay. Cola beverages, in particular, contain phosphoric acid and have been associated with urinary changes that promote kidney stones.

Human feces were found in Coke cans in bottling plants. The night shift at a Coca-Cola plant was disrupted when a container of cans clogged up the machines, only for workers to discover a number were filled with human waste! It was absolutely horrible, and the machines had to be turned off for about 15 hours to be cleaned. 

Some migrants have made that long journey in the lorry and in their desperation were forced to use the cans instead of a toilet.  Cans arrive at factories without tops on, to be filled with the fizzy drink before they are sealed and sold.

DASH stands for Dietary Approaches to Stop Hypertension. Eat more fruits, vegetables, and low-fat dairy foods. Cut back on foods that are high in saturated fat, cholesterol, and trans fats. Eat more whole-grain foods, fish, poultry, and nuts. Limit sodium, sweets, sugary drinks, and red meats.

The Venitis diet is based on salmon, brown rice, whole wheat bread, chocolate-almond dragees, walnuts, and all fruits and vegetables.

Dietary changes are used to treat certain medical conditions, rather than drugs or surgery. We can, through an altered diet or behavior, to shape the microbiome to improve health. The gut microbiome is the second genome, the first being our own.  This second genome is plastic and responsive to the way we choose to live our lives.

Addiction to fat, sugar, salt, and cola is killing you.  Medical research shows our health is greatly affected by what we eat.  Eat an abundant variety of vegetables. Choose a rainbow of fruits every day. Choose whole grains, such whole wheat bread, brown spaghetti, and brown rice. Choose fish, poultry, beans, or nuts, which contain healthful nutrients. Use olive and other plant oils in cooking, on salads, and at the table, because they reduce harmful cholesterol and are good for the heart. 

Sugar and sugary products are bad not only for your waistline, but for your brain function as well. Long-term consumption of sugar can create a wealth of neurological problems, and it can also interfere with your memory. On the other hand, sugar can also interfere with your ability to learn, this is why it is recommended to avoid pre-baked goods, sugar, corn syrup and products that are high in fructose.

Fat and sugar aren’t simply unhealthy, but they hijack the brain in ways that resemble addictions to drugs.  Food is addictive!  Lab studies have found sugary drinks and fatty foods can produce addictive behavior. Brain scans of obese people and compulsive eaters reveal disturbances in brain reward circuits similar to those experienced by drug abusers.

Food companies now face the most drawn-out consumer safety battle since the anti-smoking movement took on the tobacco industry a generation ago.  No one disputes that obesity is a fast growing global problem. In the West, a third of adults and a fifth of teens and children are obese.

The cost to society is enormous. Moderate obesity reduces life expectancy by four years, while severe obesity shortens life expectancy by ten years. Obesity has been shown to boost the risk of heart disease, diabetes, some cancers, osteoarthritis, sleep apnea, and stroke. The annual cost of treating illness associated with obesity in the West is estimated at half trillion euros.

A few years ago, Starbucks’ popular Strawberry and Crème Frappuccino got its pink color not from strawberries, but from a dye made of crushed-up cochineal insects. Vegan consumers cried foul, and mainstream media outlets picked up the story. So, Starbucks decided to stop using cochineal extract and start using lycopene to dye its drinks pink instead.

Lycopene is a red pigment found in several fruits, but strawberries are not among them. The lycopene that now colors strawberry Frappuccinos is tomato-based. The upshot: in lieu of bugs, Starbucks is using tomatoes to make its strawberry-flavored drinks look more strawberry-like. It’s a natural ingredient, but not what nature intended. Yet that part of the story didn’t garner headlines. While crushed-up bugs may alarm some people, most of us tend to take the fact of food coloring for granted.

Today, we tend to view color as an ingredient. In the food industry, color standardization meant asserting the idea of naturalness, even as manufacturers imposed a ‘natural’ color through artificial dyes.

Take butter, for example. The color of butter fluctuates, depending on the season. From early summer through early autumn, cows eat green grass, which is rich in the orange pigment beta-carotene. The pigment colors the fat in the cows’ milk, which gives the butter a golden color. But, in winter, cows don’t eat grass. Rather, they eat grain, which, unless it has been genetically modified, does not contain much beta-carotene.  Thus, winter butter is whiter than summer butter. It’s also arguably less tasty. Because the flavor of butter was richer in the summer, there was the impression that the yellow golden color was better, too. So producers started coloring their winter butter with a golden shade to make it look tasty. The color was known as June shade.

The practice dates back to at least the fourteenth century in Europe. Dairy farmers would color their butter with carrot juice and annatto, a dye derived from achiote tree seeds, to make their butter look summery all year round. Late in the nineteenth century, dye manufacturers started supplying synthetic food coloring to dairy producers for the purpose of coloring butter and cheese, which essentially spearheaded the synthetic food dye industry.

Throughout the twentieth century, consumer watchdogs and activists opposed the use of chemical additives in food, and they continue to do so today. Major companies have responded to the demand. Nestlé pledged to remove artificial color from its candy bars in 2015, for example. General Mills promised in the same year to phase out artificial colors from its cereals. And Kraft’s signature macaroni and cheese no longer comes packaged with a Day-Glo orange powder, thanks to a pledge to stop using artificial dyes (Yellow 5 and Yellow 6) in the product. Due to consumer protests against synthetic colors, the standardization of color moved from being an opportunity to being a challenge for food manufacturers. That said, color continues to be an important ingredient in packaged foods.

Global Animal Partnership (GAP) is an international animal welfare rating program which includes the following:

  • Using breeds with measurably improved welfare because most chickens are bred to grow so fast that many collapse under their own weight
  • Ending extreme crowding and providing each chicken more floor space
  • Keeping chicken litter clean enough to prevent eye sores, flesh burns, and respiratory distress
  • Improving lighting standards, including at least six hours of darkness each night and 50 lux of light during the day, to decrease illness and disease
  • Ending live-shackle slaughter in favor of less cruel systems, such as controlled-atmosphere stunning, which eliminates the suffering caused by shackling, shocking, and slitting the throats of conscious animals

It is time for leading restaurant chains to ban needless abuse from their supply chains. Consumers are demanding companies ban the cruelest practices from their supply chains, and those that fail to do so are quickly falling behind competitors. The best way for individual consumers to protect chickens and other farmed animals from cruelty is simply to leave them off their plates.

Here are five reasons for giving up meat:

  1. The environmental impact is huge

Livestock farming has a vast environmental footprint. It contributes to land and water degradation, biodiversity loss, acid rain, coral reef degeneration and deforestation.

Nowhere is this impact more apparent than climate change – livestock farming contributes 18% of human produced greenhouse gas emissions worldwide. This is more than all emissions from ships, planes, trucks, cars and all other transport put together.

Climate change alone poses multiple risks to health and well-being through increased risk of extreme weather events – such as floods, droughts and heatwaves – and has been described as the greatest threat to human health in the 21st century.

Reducing consumption of animal products is essential if we are to meet global greenhouse gas emissions reduction targets – which are necessary to mitigate the worst effects of climate change. 

  1. It requires masses of grain, water, and land

Meat production is highly inefficient – this is particularly true when it comes to red meat. To produce one kilogram of beef requires 25 kilograms of grain – to feed the animal – and roughly 15,000 liters of water. Pork is a little less intensive and chicken less still.

The scale of the problem can also be seen in land use: around 30% of the earth’s land surface is currently used for livestock farming. Since food, water and land are scarce in many parts of the world, this represents an inefficient use of resources.

  1. It hurts the global poor

Feeding grain to livestock increases global demand and drives up grain prices, making it harder for the world’s poor to feed themselves. Grain could instead be used to feed people, and water used to irrigate crops.

If all grain were fed to humans instead of animals, we could feed an extra 3.5 billion people. In short, industrial livestock farming is not only inefficient but also not equitable.

  1. It causes unnecessary animal suffering

If we accept, as many people do, that animals are sentient creatures whose needs and interests matter, then we should ensure these needs and interests are at least minimally met and that we do not cause them to suffer unnecessarily.

Industrial livestock farming falls well short of this minimal standard. Most meat, dairy and eggs are produced in ways that largely or completely ignore animal welfare – failing to provide sufficient space to move around, contact with other animals, and access to the outdoors.

In short, industrial farming causes animals to suffer without good justification.

  1. It is making us ill

At the production level, industrial livestock farming relies heavily on antibiotic use to accelerate weight gain and control infection – in the US, 80% of all antibiotics are consumed by the livestock industry.

This contributes to the growing public health problem of antibiotic resistance. Already, more than 23,000 people are estimated to die every year in the US alone from resistant bacteria. As this figure continues to rise, it becomes hard to overstate the threat of this emerging crisis.

High meat consumption – especially of red and processed meat – typical of most rich industrialized countries is linked with poor health outcomes, including heart disease, stroke, diabetes, and various cancers.

These diseases represent a major portion of the global disease burden so reducing consumption could offer substantial public health benefits.

Currently, the average meat intake for someone living in a high-income country is 200-250g a day, far higher than the 80-90g recommended by the United Nations. Switching to a more plant-based diet could save up to 8 million lives a year worldwide by 2050 and lead to healthcare related savings and avoided climate change damages of up to $1.5 trillion.

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