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Advertising and Consumer Information

Advertising and other information that misleads a consumer about a food product renders that food misbranded and illegal to sell.

A food product will be considered misbranded if the food business provides misleading information.  For example, the federal definition of misbranded includes (21 U.S.C. 343(r) at http://www.law.cornell.edu/uscode/text/21/343)

A food shall be deemed to be misbranded ... (r) if ... a claim is made in the label or labeling of the food which expressly or by implication (A) characterizes the level of any nutrient ... or (B) characterizes the relationship of any nutrient ... to a disease or a health-related condition ...

This web page discusses the regulation of food advertising and the inclusion of claims in the advertising.  Claims and the labeling of claims is addressed on another page.  The final section of this page discusses expectations of food businesses as they provide additional (educational?) information to consumers.

 

Advertising

Another component of U.S. federal food law is to assure consumers are not deceived by advertising claims. Misleading advertising will cause the product to be declared "misbranded" and thus illegal to sell.  Several statutes provide the framework for this prohibition. Note that advertising of food is regulated by the Federal Trade Commission in conjunction with the FDA.

    • (a)(1) Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful.
  • 15 U.S.C. 52 http://www.law.cornell.edu/uscode/text/15/52
    • "It [is] unlawful for any person ... to disseminate ... any false advertisement (1) by United States mails or (2) by any means ... to induce ... the purchase ... of food... The dissemination of ... any false advertisement ... shall be an unfair or deceptive act or practice...
  • 15 U.S.C. 55 http://www.law.cornell.edu/uscode/text/15/55
    • "... "false advertisement" means an advertisement, other than labeling, which is misleading in a material respect; and in determining whether any advertisement is misleading, there shall be taken into account (among other things) not only representations made or suggested by statement, word, design, device, sound, or any combination thereof, but also the extent to which the advertisement fails to reveal facts material in the light of such representations or material with respect to consequences which may result from the use of the commodity to which the advertisement relates under the conditions prescribed in said advertisement, or under such conditions as are customary or usual.
    • In the case of oleomargarine or margarine an advertisement shall be deemed misleading in a material respect if in such advertisement representations are made or suggested by statement, word, grade designation, design, device, symbol, sound, or any combination thereof, that such oleomargarine or margarine is a dairy product, except that nothing contained herein shall prevent a truthful, accurate, and full statement in any such advertisement of all the ingredients contained in such oleomargarine or margarine.
      • This point about margarine is still valid law but its basis extends back to the mid-20th century. Some old ideas are hard to eliminate.
    • "The term "food" means (1) articles used for food or drink for man or other animals,(2) chewing gum, and (3) articles used for components of any such article."
  • 21 U.S.C. 378 http://www.law.cornell.edu/uscode/text/21/378
    • "before the [FDA] may initiate any action ... (B) with respect to a food’s advertising which [FDA] determines causes the food to be so misbranded, [FDA] shall ... notify ... the Federal Trade Commission of the action [FDA] proposes to take...
    • FDA is required to notified FTC of any enforcement action FDA is contemplating as a result of "misbranding due to advertising;" if FTC takes action against the alleged misbranding, FDA is prohibited from also taking action.
  • Enforcement Policy Statement on Food Advertising; although prepared in May 1994, it provides a good background description.
    • The Enforcement Policy primarily describes the FTC's legal authority and the FTC's policy toward nutrient content claims and health claims.

Advertising dietary supplements also draws considerable attention:

 

Advertising Product Claims

Another section of this web site discusses product claims in detail as well as the labeling of product claims.  This section only reviews product claims and comments on including product claims in food advertising.

Food product advertising and labels cannot include misleading information. Yet, food processors want an opportunity to promote their product. Accordingly, the law defines four types of claims that can be made by food manufacturers about their product. But these claims about the product can be made only if the claim meets the qualifications set forth in the law. The four types of claims are

Nutrient Content Claims -- a claim that directly or implicitly characterizes the level of a nutrient in the food (e.g., "low fat," "high in oat bran," or "contains 100 calories").

Health Claims -- a claim made that expressly or implicitly relates any substance in the food to a disease or health-related condition. A health claim can be made only if allowed by FDA regulation and the health claim meets the Significant Scientific Agreement (SSA) standard.

  • For example, calcium and osteoporosis; calcium, vitamin D, and osteoporosis; dietary fat and cancer; sodium and hypertension; dietary saturated fat and cholesterol, and risk of coronary heart disease; fiber-containing grain products, fruits, and vegetables and cancer; fruits, vegetables and grain products that contain fiber, particularly soluble fiber, and risk of V coronary heart disease; fruits and vegetables and cancer; and others
  • See Health Claims at http://www.fda.gov/Food/GuidanceRegulation/GuidanceDocumentsRegulatoryInformation/LabelingNutrition/ucm064919.htm

Qualified Health Claims -- characterizes the relationship between a food substance and its ability to reduce the risk of a disease or health-related condition; uncertain claims but can be provided with appropriate limiting language.

Structure/Function Claims -- a dietary supplement may bear statements that describe the role of a nutrient or dietary ingredient intended to affect the structure or function in humans or that characterize the documented mechanism by which a nutrient or dietary ingredient acts to maintain such structure or function, provided that such statements are not disease claims

 

Food Advertising for Children

There also is concern about advertising targeting children and food that is primarily consumed by children.  Although a long-term issue, a recent step is introduced with the following materials.  The working group describes its efforts as

In an effort to combat childhood obesity,  a working group of federal nutrition, health, and marketing experts developed recommendations for the nutritional quality of food marketed to children and adolescents, ages 2 to 17. The proposed voluntary principles are designed to encourage stronger and more meaningful self-regulation by the food industry and to support parents’ efforts to get their kids to eat healthier foods.  The working group seeks public comment on the proposed voluntary nutrition and marketing principles it has developed. After public comment, the working group will make final recommendations in a report to Congress. This is not a proposed government regulation.

Principle A: Meaningful Contribution to a Healthful Diet:  Foods marketed to children should provide a meaningful contribution to a healthful diet,
Principle B: Nutrients with Negative Impact on Health or Weight:  Foods marketed to children should be formulated to minimize the content of nutrients that could have a negative impact on health or weight.

 

Consumer Education

  • Consumer still need to make their own decisions; labeling addresses the concern of making sure the consumer has access to appropriate information about the product; consumer education focuses on whether the consumer is able to use that information to make a meaningful decision. Advertising and discretionary information on labels are additional ways to inform and educate, but these too are somewhat regulated to assure boundaries are not overstepped.
  • The food industry is dynamic -- consumers have different information, understanding and expectations than they did several decades ago; consumers' demand changes as they grow older, as their family and career situation changes, and as their income changes. Technology is changing. Simple matters such as packaging, degree of processing and additives/ingredients are changing. How do these changes impact the person responsible for food safety within a food business?
  • Distinction between nutrition, food safety and promotion becomes quite blurred; much of the mandatory/required information on the label is nutritional information; much of the discretionary information is to encourage the consumer to use the product due to its convenience, taste, etc. Neither of these objectives appeared to emphasize food safety.
  • Misbranding has been broadly defined to prohibit misleading information.  The form of information also has been broadly defined to encompass labels, advertising, promotional brochures and others such communication (see following quote).
    • "The [Federal Food, Drug, and Cosmetic Act] defines "labeling" as all labels and other written, printed or graphic matter upon any article or any of its containers or wrappers, or accompanying such articles. The courts have interpreted labeling to include promotional brochures, promotional pamphlets, testimonials, product information sheets, books, etc."  Excerpt from http://www.fda.gov/AnimalVeterinary/Products/AnimalFoodFeeds/ucm050223.htm.
  • Consequently, food businesses must be careful in all communications about their product.  The court cases that address "misleading information as resulting in misbranded food" generally involve labeling, but that does not diminish the need for food businesses to guard against misleading information in any form of communication.

 

Summary

  • The prohibition against misbranding extends to food advertising.  Enforcement against misleading food advertising is shared by the FDA and FTC.
  • Package labeling is at the discretion of the food business except that 1) the labeling requirements for the PDP and Information Panel must be met and 2) the remaining label information cannot mislead the consumer.
  • Likewise, food advertising and other communication with the consumer cannot mislead the consumer.
  • The discretionary areas of the label, advertising and other communication with the consumer are opportunities to educate. the education may be product specific or more general but it cannot be misleading.  Possible education/communication topics might include product use, nutrition, or food safety (as long the information is not misleading).

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Email David.Saxowsky@ndsu.edu

 

 

This material is intended for educational purposes only. It is not a substitute for competent legal counsel. Seek appropriate professional advice for answers to your specific questions.

This material is protected by U.S. copyright laws.

Email David.Saxowsky@ndsu.edu

This material is intended for educational purposes only. It is not a substitute for competent legal counsel. Seek appropriate professional advice for answers to your specific questions.

This material is protected by U.S. copyright laws.

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