Lawsuits, new FDA scrutiny in food aisle

The backlash against the food industry's attempt to boost sales through "Smart Choices" labels is moving into the courts, and it may end only with the imposition of new, uniform nutrition labels on all processed food.

Food companies are backpedaling from the labels they affixed to many products over the last year, labels that promised benefits ranging from lower cholesterol to boosting the immune system.

But their retreat comes too late to prevent litigation. General Mills alone is facing eight separate proposed class actions over the health claims it made for Cheerios and Yoplait yogurt. Meanwhile, the FDA, fresh from warning foodmakers of the shortcomings it saw in the Smart Choices campaign, is turning its attention to the possibility of redrawing the entire nutrition labeling system.

The stakes are high. Foodmakers rely heavily on innovations to distinguish their products and health claims are a big selling point. General Mills CEO Ken Powell said in March that cereal sales grew 13 percent in the company's third quarter, helped by the marketing of Cheerios' health benefits.

At the same time, two-thirds of U.S. adults are overweight or obese despite the now decades-old effort to trim calories, fat and sugar from foods. That, in turn, is placing enormous costs on the nation's largely employer-paid health care system, and making it more difficult for companies to keep the workers they have or hire new ones.

While the FDA has required a nutrition facts panel since 1973, and greatly expanded the requirement in 1990, studies show that many consumers still don't understand the panels, or misread the information.

FDA Commissioner Margaret Hamburg recently called food packaging a "tower of Babel," cluttered with a proliferation of symbols and phrases about nutrition. She then hinted strongly that the FDA would help develop a single, front-of-package symbol to ease the confusion, citing a British program in which retailers print a "traffic light" on the front of packages to quickly show the food's levels of fat, sugar and salt.

Lawyers aren't waiting for the government and industry to hash out a new framework.

They've slapped General Mills with class-action lawsuits over its Cheerios labeling, asking courts in New Jersey, New York, California and elsewhere to order customer refunds. The labels misled consumers who "spent money on a product that lacked the value" they were promised, argued lawyers for Jeffrey Stevens, a consumer whose lawsuit was consolidated with four others and now sits before a judge in New Jersey as a proposed class action.

The company also faces court fights over Yo-Plus yogurt, which has drawn lawsuits over the claim that it regulates digestive health.

"General Mills' own studies fail to support this advertising message, and a number of them flatly contradict General Mills' claims," wrote attorneys for Julie Fitzpatrick, a consumer who filed a proposed class action seeking reimbursement and damages. The company's advertising also drew a rebuke from the National Advertising Division of the Better Business Bureau late last year, which, after a review of evidence supplied by General Mills, said the ad claims were not supported.

Future ads should say only that a specific ingredient, known by the shorthand Bb12, helps regulate digestive health, and not that "the Yo-Plus product has been proven to help 'regulate digestive health,'" the NAD ruled.

While it's uncertain whether General Mills or other companies face the possibility of significant damages from the lawsuits, it's clear that plaintiffs' lawyers are taking a fresh new interest in the grocery aisles.

"There's a lot of companies out there that are making dubious claims about their products," said Sally Greenberg, executive director of the National Consumers League, which has filed its own lawsuits against both General Mills and Kellogg's over labeling. "Unless there is some financial penalty to pay, the likelihood is that they'll just keep on making similar claims, again and again, for product after product."

FDA to the rescue?

The FDA may provide the only safe harbor for foodmakers.

A new FDA label, one both simpler and more visible than the nutrition facts panel printed on the sides of most boxes today, would be welcomed by General Mills, said Tom Forsythe, a company spokesman and vice president.

Jill Hamilton-Reeves, assistant professor of nutrition at St. Catherine University, said foodmakers have become victims of their own marketing skill.

Convenience, not taste or nutrition, is the top reason many shoppers make a grocery buy, she said, and food companies tailor their pitches to that reality. What could be more convenient than improving your health just by your choice of cereal, and seeing that promise without having to bother to read a nutrition label?

"What's interesting is that the food companies actually slanted this in a way that would still be convenient for the consumer," Hamilton-Reeves said. "The packaging allows the consumer to see the information without turning the box."