Nestle HealthCare Nutrition,
Inc., a subsidiary of Nestle S.A., the world’s largest food and nutrition
company, agreed to drop deceptive ad claims about the health benefits of BOOST
Kid Essentials drink--a nutritionally complete for children 1-13. A settlement
resolving the FTC’s first case challenging probiotic ads was made (probiotics
are natural bacteria known for helping with digestion and fighting bad
bacteria).
Complaint charges from 2008 to 2009
were filed against Nestle HCN’s deceptive claims in TV and print ads for this
drink. The probiotics in BOOST are embedded in the straw
that comes with the drink which was featured in the ads. Ads claimed BOOST
protects against colds and flu, prevents upper respiratory tract infections and
reduces absences from school by strengthening the immune system. These claims
that the probiotic drink would prevent kids from getting sick or missing school
did not meet FTC scrutiny. The ads falsely claimed BOOST is clinically shown to
reduce and protect kids from illness as well as helping them recover quickly
from diarrhea.
Under the settlement, Nestle HCN
agreed to stop claiming BOOST will reduce illness unless the claim is approved
by the FDA; FDA approval is generally not needed for compliance with the FTC
but they determined that requiring FDA pre-approval before Nestle HCN makes
claims will provide clearer guidance and facilitate compliance. Nestle HCN also
agreed to stop claims that BOOST will reduce sick absences and the duration of
diarrhea in kids up to 13 if it is determined true by at “least two
well-designed human clinical studies.” Nestle HCN is prohibited from making any
claims about any benefits of probiotic and nutrition drinks unless claims are
true and backed by competent, reliable scientific evidence. The FTC is helping
parents by monitoring ads and stopping deceptive ones.
The Division of Advertising
Practices is a division of the bureau and is the enforcer of federal
truth-in-advertising laws focusing on: deceptive ads of fraud cure-all claims
for dietary supplements and weight loss products, deceptive internet marketing
practices for health issues, enforcement strategies for new ad techniques and
media, ads of food to children like impacts on obesity, industry practices
regarding marketing violent media, and alcohol and tobacco marketing practices.
The puffery in this case was deceptive and advertisers did not have adequate
substantiation for the claims made.
The FTC is made aware of
potentially problematic ads by complaints from consumers, businesses, etc.; complaints
were filed for a year about the claims Nestle HCN was making about BOOST. FTC
investigations are generally nonpublic to protect the investigation and companies
involved. A measure the FTC took to protect the public was a cease and desist
order demanding Nestle HCN to stop the false health claims. A cease and desist
order is contained within a consent order or a consent agreement. A consent
order is for settlement purposes and does not constitute an admission of guilt
by the advertiser. Nestle HCN agreed, so the FTC did not have to issue a
litigated order to stop an ad claim filed in an administrative court.
Substantiation gives the FTC authority to demand an advertiser prove its
claims—to provide competent and reliable evidence for claims made. The FTC
demanded Nestle HCN to sufficient evidence for their claims before they could
be made again.
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