As part of a settlement to resolve a US Federal Trade Commission (FTC) challenge, a subsidiary of Nestlé, the world’s largest food and nutrition company, has agreed to drop allegedly “deceptive” health claims it made in advertisements of its children’s drink “BOOST Kid Essentials”.

The FTC reported on Wednesday that it had charged Nestlé HealthCare Nutrition, Inc with making deceptive claims in a recent advertising campaign that appeared on television, in newspapers, magazines and other print media.

The FTC said the ads falsely claimed that Nestlé’s “BOOST Kid Essentials” product “prevents upper respiratory tract infections in children, protects against colds and flu by strengthening the immune system, and reduces absences from daycare or school due to illness”.

The Commission said this was the first time it had challenged advertising for a probiotic product, and that Nestlé’s agreement to drop the claims was part of a settlement to resolve the challenge.

Probiotics are live bacteria that occur naturally in many foods, and are thought to help digestion and prevent infection by fighting off harmful bacteria.

The children’s drink in question contains probiotics embedded in the straw that comes with the drink.

In one ad the FT objected to, the straw jumps out of the package, appears to form a protective shield around the girl who has the drink, implying that she is protected against the germs from a sneezing boy she meets, and then makes steps appear to help her reach up and shoot a basketball into a net.

David Vladeck, Director of the FTC’s Bureau of Consumer Protection said in a statement that by stopping deceptive advertising the Commission hels parents “do right by their kids”:

“‪Nestlé’s claims that its probiotic product would prevent kids from getting sick or missing school just didn’t stand up to scrutiny,” said Vladeck.

The food company has also agreed to stop claiming that the product will reduce children’s sick day absences, and the duration of diarrhea episodes in children under 13, unless they can back the claims with good scientific evidence from human clinical studies.

The proposed settlement also extends similar requirements to any probiotic and nutrition drinks the company sells.

The FTC stressed that their complaint against Nestlé “was not a finding or ruling that the respondent has actually violated the law”, and that the company’s agreement to settle does not constitute an admission of such and they did not have to pay a fine.

However had the the consent order gone to the final stage, it would then have carried the force of law in “respect of future actions” and a fine would have had to be paid.

A point that stands out in this agreement is that under the settlement Nestlé has agreed to stop claiming that its product reduces the risk of colds, flu and other upper respiratory tract infections, “unless the claim is approved by the Food and Drug Administration”, said the FTC.

This is an unusual step for the FTC, which appears to be asserting itself in a new way: generally FDA approval of health claims is not required for compliance with FTC legislation but it appears the FTC is taking a stronger stand in this case.

This is now the second case in so many months where the FTC has flexed its muscles with food company claims about their products boosting children’s health.

Last month, Kellogg agreed new advertising restrictions with FTC to stop making claims that nutrients added to its Rice Krispies cereal helped boost children’s immunity to illnesses. This was the second action against the company in 12 months, the earlier one was against a claim that its Frosted Mini-Wheats improved kids’ attentiveness by nearly 20 per cent.

A nutrition professor at New York University, who is only by coincidence called Dr Marion Nestle and is not related to the Nestlé company, said the FTC appears to be unusually active in pursuing health claims on foods. She told the New York Times she considered this new approach to be “groundbreaking”.

Sources: FTC, New York Times.

Written by: Catharine Paddock, PhD