Negotiating the Boundary Between Marketing and ‘Misleading Claims’

Dec 17, 2010

By Al McCLain

Manufacturers  and retailers might best think twice about
some of the health claims they make for food products as a result of the recent
Federal Trade Commission settlement with the  Dannon Company over deceptive
advertising of  its
Activia and DanActive products. Dannon agreed to settle with the FTC and to
pay $21 million dollars to 39 states to resolve their own inquiries while not
admitting any wrongdoing. The FTC said in a press release that Dannon agreed
to stop claiming that a daily serving of Activia relieves irregularity, and
that DanActive helps people avoid colds or the flu.

According to the company,
Dannon will continue to advertise the "core benefits" of
these products, which are that Activia "helps to regulate the digestive
system" and that DanActive "helps to support the immune system" but
agreed to more clearly convey to consumers that the beneficial effects of Activia
require consumers to eat three servings per day and that DanActive will not
be marketed as a cold or flu remedy.

FTC Chairman Jon Leibowitz said, "These
types of misleading claims are enough to give consumers indigestion."  And, "Companies
like Dannon shouldn’t exaggerate the strength of scientific support for their

For manufacturers and retailers, this settlement may
raise more questions than it provides answers. The monetary amount seems insignificant
and these products with beneficial bacteria (probiotics) are still seen by
most as "good for
you” — it’s just a question of degree.  Also, general opinion is
not that consumers should eat less of the product — in the case of Activia,
it is being recommended that one should eat more to realize the benefit.
But these are products that are known for their possible health benefits, and
few people are presumably eating them primarily for their taste. So, if a dent
is made in the armor of the health benefits claims, what kind of advertising
message does that leave Dannon with going forward?

Discussion Questions: Where do you draw the line between marketing and
misleading when it comes to health-oriented food products? Does too much "truthiness" leave
marketers with nothing to work with? Do retailers need to take a second look
at how they are marketing and promoting "healthy" products and
categories in their stores?

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11 Comments on "Negotiating the Boundary Between Marketing and ‘Misleading Claims’"

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Max Goldberg
10 years 5 months ago

Brands should not make health claims that are not true. If a brand can’t support a health message, it shouldn’t try to create one in the first place. There’s a reason why consumers don’t trust brand messages. This is a prime example.

Jerome Schindler
10 years 5 months ago

The Dannon ads were based on some substantiation, just not the type that the FTC etc, deems adequate. Our local “Columbus Dispatch” newspaper prints ads every week for expensive “dietary supplements” with claims that are outright fraudulent. While you would have to be somewhat stupid–no, actually you’d have to be downright stupid–to believe the claims, evidently a lot of people do or the companies wouldn’t continue to spend money on these ads. Unfortunately going after these small fish doesn’t appeal to the government bureaucrats–they get more press going after a major company. In my opinion they should go after the media that take money to publish ads that any reasonable person would know are false. The media (newspapers, etc.) aid and abet these frauds, and via their ad revenues share in the proceeds. Deprived of a way to advertise their wares, these companies would not be able to stay in business.

W. Frank Dell II, CMC
10 years 5 months ago

The snake oil salesmen made wild claims and so do some manufacturers. The rules have always been straight forward. If you have a valid independent test to support claims go with it. If you design the study to achieve your desired results, you many get caught.

The real issue is, does the product perform as advertised with the consumer? For example, if a product claimed that by taking it you would never have a cold again and the consumer catches a cold, you have lost credibility. Without credibility there are no sales.

Bernice Hurst
10 years 5 months ago

Probiotics are an example of the worst extremes of hyperbole–marketing messages by omission (how much you have to consume to stand even the slightest, remotest, possibility of benefit). The implication that any food can or might have an effect on long-term health is by its very nature confusing. No one knows and no one can prove anything for certain especially when any particular food is considered within the context of every other food consumed. Not to mention quantities and heredity and weather and… I am a vehement disbeliever in health claims as you may be able to tell by reading between the lines.

Dan Berthiaume
Dan Berthiaume
10 years 5 months ago

The basic answer is any marketing claims should be verifiably true. If you can only support a general claim that bacteria in a yogurt brand have beneficial health effects, leave the marketing message at that rather than extrapolating to specific benefits not supported by (preferably independent) research.

Gene Detroyer
10 years 5 months ago
From a business point of view, this settlement would only encourage companies to continue to use deceptive advertising practices. Consider how many years this product has been successfully using deceptive claims to sell what in fact is a very good product. The fine is just a cost of doing business that should be allocated to the advertising budget. Truly a very efficient investment. But now to the greater question: Does too much “truthiness” leave marketers with nothing to work with? Are marketers snake oil salesmen? Why can’t they work with the truth? If the truth isn’t enough, maybe the product shouldn’t exist. There should be no discussion on if there is a line that shouldn’t be crossed. The issue of a “line” only comes up when one is considering deception. This “line” is ethics. The big ‘however’ is on the company side. As far as companies go, there is no line. The only line that exists is that imposed by regulation. Be assured, without regulation “More Doctors” would still “Be Smoking Camels Than Any Other… Read more »
Mark Plona
Mark Plona
10 years 5 months ago

I’ll be the first to say, “What really happened to truth in advertising?”

Today’s health conscious consumer is already faced with many deciphering challenges. Starting with the nutrition label itself, which many nutritionists will tell you has become as much a marketing tool as the front of the box. For instance; what is added sugar vs. what is naturally occurring through the ingredients themselves? It adds to the confusion and must raise the eyebrows of the already skeptical consumers.

Truth is still very important in the eyes of many consumers of all ages. One would imagine that once a company is associated with scam-like tactics it becomes rather hard to shed that reputation.

Already there are plenty of boxed cereal companies that have faced this same scrutiny from the increasingly claims-active Federal Trade Commission.

It seems that hard truth is a fading commodity. I’m left to ponder, has spin replaced innovation?

Anne Bieler
Anne Bieler
10 years 5 months ago

As health and wellness become even more important in consumer minds about the foods they purchase, marketers will have to understand the limits of what they can and should say. Many people want to make better choices, and smart brands are going to “get” this.

Many retailers from Walmart to Safeway offer Private Brands that are identified as Organic or Natural–better for you, fewer additives, lower in fat and calories–easy to pick these choices in a category. Many like Loblaws Blue Menu and Safeway O are doing well.

Gordon Arnold
10 years 5 months ago

A simple way to insure truth in advertising is to allow criminal charges to be brought against the highest authorizing corporate manager/executive responsible for giving approval to the publishing or announcement of misleading information. This authorizing individual would by law carry the responsibility of his decision to permit and or allow it to continue. But that will never happen.

M. Jericho Banks PhD
M. Jericho Banks PhD
10 years 5 months ago

For health claims I draw the line at provable or not, which seems to echo the other comments here today. But, to inflexibly expand this point-of-view to all advertising would be extremely short-sighted. How do you prove claims such as delicious, beautiful, or affordable? “New” as an ad claim was supposedly defined a long time ago as nine months, but I can’t find verification for that. I do remember hearing it in advertising school, however. It was accompanied with the suggestion that companies simply change or replace one ingredient or process periodically in order to remain “new.”

Returning to health-related claims, benefits should always be compared to other substances or practices used for the same or similar purpose, backed up by independent tests. Once the “problem” has been clearly described to consumers, a “solution” can be offered that can be explained best by relating it to other solutions. Is it better or superior in some way? That’s where the claim should be made.

Jerry Gelsomino
10 years 5 months ago

There is no excuse for false claims or deceptive advertising!


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