On June 3, 2010, the Federal Trade Commission (FTC) announced the modification of a 2009 Consent Order entered into with the Kellogg Company related to health benefit claims for its food products. The original 2009 Consent Order related to Kellogg’s® Frosted Mini-Wheats® and the company’s claims that the bite size cereal improved children’s attentiveness. The 2009 Order barred Kellogg from “mak[ing] any representation, in any manner, expressly or by implication. . . about the benefits, performance, or efficacy of [Kellogg’s® Frosted Mini-Wheats® cereal or any other morning food or snack food] for cognitive function, cognitive process, or cognitive health, unless the representation is true, non-misleading, and, at the time made, [Kellogg] possesses and relies upon competent and reliable scientific evidence that substantiates the representation.”
This time, Rice Krispies® cereal brought the parties back to the table. In July of 2009, Kellogg unveiled a new advertising campaign for Rice Krispies® cereal claiming that the product boosts children’s immunity. The timing of the Rice Krispies® campaign and its planning was not lost on the Commission. In a Concurring Statement, Commissioner Julie Brill and Chairman Jon Leibowitz noted, “[w]hat is particularly disconcerting to us is that at the same time that Kellogg was making promises to the Commission regarding Frosted Mini-Wheats, the company was preparing to make problematic claims about Rice Krispies.”
The FTC was not the only one that had a problem with Kellogg’s immunity boosting claims. San Francisco city attorney Dennis Herrera demanded Kellogg remove the immunity claims from the Rice Krispies box, which the company agreed to do in November of 2009. In December of 2009, Kellogg settled with the Oregon Department of Justice and Attorney General John Kroger, destroying two million units of packaging and donating hundreds of thousands of boxes of cereal to Oregon Food Bank and Feeding America.
The new FTC Order entered by the parties expands Kellogg’s agreement to “all foods” and unveils some, but not all, of the new, more specific definitions of “competent and reliable scientific evidence” that the Bureau has been talking about. Specifically, the order requires that evidence relied upon, “is sufficient in quality and quantity based on standards generally accepted in the relevant scientific field when considered in light of the entire body of relevant and reliable scientific evidence, to substantiate that the representation is true.”
For comparison, the FTC’s traditional definition of “competent and reliable scientific evidence” is:
...tests, analyses, research, studies, or other evidence based on the expertise of professionals in the relevant area, that has been conducted and evaluated in an objective manner by persons qualified to do so, using procedures generally accepted in the profession to yield accurate and reliable results.
Probably the most notable difference between the two definitions is the express requirement that the “entire body” of relevant evidence be considered.
- Randy Shaheen and Jessica Halbert
