Snap, Crackle & Pop is OK, but FTC Rules Immunity Claims Off Limits

By Ricardo Carvajal –

Kellogg Company has agreed to FTC’s expansion of the settlement order that the company entered into in July 2009 regarding false claims that Frosted Mini-Wheats improve children’s attention (see our prior post here).  At issue now are “dubious health claims” that Rice Krispies supports children’s immunity.

Under the modified order, Kellogg is prohibited from making any representation in connection with the marketing of any food regarding

A. the benefits, performance, or efficacy of such product for cognitive
function, cognitive processes, or cognitive health; or

B. any other health benefit of such product

unless the representation is not misleading and is adequately substantiated.  The modified order now describes FTC’s substantiation standard in detail.  Kellogg must have:

competent and reliable scientific evidence that is sufficient in quality and quantity based on standards generally accepted in the relevant scientific fields, when considered in light of the entire body of relevant and reliable scientific evidence, to substantiate that the representation is true. . .. [C]ompetent and reliable scientific evidence means tests, analyses, research, or studies that have been conducted and evaluated in an objective manner by qualified persons and are generally accepted in the profession to yield accurate and reliable results.

As we noted in a prior posting, FTC staff have repeatedly expressed concern over the use of immunity claims in promotion for foods.  However, the claim used by Kellogg (“now helps support your child’s immunity”) strikes us as relatively timid – notwithstanding the Commission’s characterization of it as a claim to “boost” immunity.  Although FTC’s action might be partially attributable to the fact that Kellogg embarked on its immunity campaign shortly after negotiating the original settlement, it appears that the Commission is prepared to challenge any questionable immunity claim – even those that don’t explicitly reference an ability to boost immunity.