Coca-Cola is fighting two battles that illustrate the dilemma food companies face when they try to make foods that are both healthy and taste good. A class action lawsuit filed in the Northern District of California alleges that Coke makes a variety of claims about the health benefits of VitaminWater, including the reduction of certain diseases, the promotion of healthy joints, and the ability to help the drinker obtain optimal immune function. Plaintiffs argue that at the end of the day, the 33 grams of sugar contained in each bottle of VitaminWater more than cancels out any purported health benefits. Counsel for the class have said that consumers shouldn’t have to look closely at the labels on the bottles to see the true ingredients, rather they should not be mislead into thinking the drink is “healthy” by the marketing and advertising promoted by Coke. Of course, if the product delivers the promised benefits then the presence of sugar seems irrelevant unless plaintiffs are prepared to argue that there is a claim of overall health benefit. The FTC’s current position, as reflected in the Enforcement Policy Statement on Food Advertising, is that unqualified health claims in advertising for foods that contain nutrient levels that might increase the risk of a diet-related disease (i.e. fat, cholesterol and sodium) “are likely to be deceptive when the risk-increasing nutrient is closely related to the health claim.” In other words, an unqualified claim that a food is low in fat, and therefore helpful in reducing cardiovascular disease, would be deceptive if the food contained so much sodium that it might increase blood pressure, thereby actually enhance one’s risk of acquiring the disease.
In a related story, the FDA recently sent a letter to Coke warning the company that its labeling of Diet Coke Plus violates the Federal Food, Drug and Cosmetic Act. The Agency urged Coke to revise the label to avoid misrepresenting certain nutritional claims, namely that the drink contains enough nutrients to qualify for the use of the word “plus.” Food and beverages are only allowed to use the word “plus” if they contain at least 10% more of the daily intake or reference value of a nutrient than a similar product. FDA also threw in the fact that the Agency doesn’t consider it “appropriate” to fortify snack foods (like carbonated beverages) with added nutrients. If FDA holds to this latter position, it could have significant implications for food companies desiring to respond to demands that they make many of their traditional products healthier.
A spokeswoman from Coke noted that consumers are more savvy than they used to be and are more likely to read nutritional information on labels such as VitaminWater to make their own decisions about whether or not to drink it. With regard to Diet Coke Plus, the company says it plans to respond to the FDA, but has no intent to change its label. Stay tuned.
