So-called "probiotics" - foods or supplements that try to make use of the beneficial effects of certain microorganisms that safely inhabit our bodies - are one of the latest frontiers for food companies' trying to cash in on trends.
If you've seen the endless commercials in which actress Jamie Lee Curtis touts the digestively delightful effects of Dannon's Activia yogurt - or the gross-but-funny spoof of Curtis talking yogurt and, well, poop with Saturday Night Live cast members - you know the basic drill: Add "good" bacteria to your diet. Let them multiply and conquer the bad ones, or establish a stable beachhead in your intestinal tract and neutralize the foes.
Today, the Federal Trade Commision said a subsidiary of Nestlé S.A had gone too far in the pursuit of profit from priobiotics, by making deceptive advertising claims about the health benefits of a children’s drink, Boost Kid Essentials.
A typical commercial for Boost Kid Essentials, made by Nestlé HealthCare Nutrition Inc., focuses on the straw for the drink, which is the where the probiotic bacteria are embedded. As the FTC describes the commercial, the straw "jumped out of the drink box, formed a protective barrier around a girl as she encountered a sneezing boy, and then formed steps allowing her to reach a basketball hoop and shoot a ball into the net."
In announcing a proposed settlement with Nestlé, the FTC said the company misrepresented the evidence for its health claims in such commercials and print ads that ran from fall 2008 to fall 2009 - ads it said claimed "that Boost Kid Essentials 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."
In a complaint made public with the settlement, the FTC's lawyers said:
In truth and in fact, clinical studies do not prove that drinking Boost Kid Essentials reduces the general incidence of illness in children, including upper respiratory tract infections, reduces the duration of acute diarrhea in children up to the age of thirteen, or strengthens the immune system, thereby providing protection against cold and flu viruses.
“Nestlé’s claims that its probiotic product would prevent kids from getting sick or missing school just didn’t stand up to scrutiny,” David Vladeck, director of the FTC’s Bureau of Consumer Protection, said in a news release.
To see the FTC's announcement of the settlement and its terms, click here. Click here to read the complaint, and here to read an Analysis of Proposed Consent Order to Aid Public Comment. For links to some of the ads, click here.
An unusual element of the settlement is that it sets an unusually high standard, including getting pre-approval from the Food and Drug Administration, if the company wants to make future claims about certain products - not just Boost Kid Essentials, but "any drink product containing probiotics, or any nutritionally complete drink, other than infant formula, medical foods, and any product not sold primarily through conventional retail channels." The FTC explained:
Although FDA approval of health claims generally is not required for compliance with the FTC Act, in this case, the FTC determined that requiring FDA pre-approval before Nestlé HCN makes claims that certain products prevent or reduce the risk of upper respiratory tract infections will provide clearer guidance. In turn, this will facilitate Nestlé HCN’s compliance with the proposed settlement order and will make the order easier to enforce.
Nestlé HCN also has agreed to stop claiming that Boost will reduce children’s sick-day absences and the duration of acute diarrhea in children up to age 13, unless the claims are true and backed by at least two well-designed human clinical studies.
This action against Nestlé isn't an indictment of probiotics in general, which the FTC says are "live, beneficial bacteria that are found naturally in many foods, and they are known for aiding digestion and fighting harmful bacteria."
This MayoClinic.com article describes some of the promising evidence that priobiotics can help protect against eczema in children, for example, or prevent or reduce the severity of colds or flu.
But, as the MayoClinic article points out, more research is needed. The FTC says Nestlé got ahead of the evidence and misled consumers as a result. It also described the settlement as its "first case challenging advertising for probiotics."
Intentionally or not, that sounds like a broad hint of more challenges to come.