General Mills continues to push the envelope on the cholesterol issue. As recently as February, a box displayed “Can Help Lower Cholesterol,” in big letters across the front and a bowl of Cheerios that is in the shape of a heart—even while the fine print at the bottom of the box explained that benefits are gained only when you eat 3 grams of soluble fiber daily. A serving of Cheerios has only 1 gram.
Kellogg also played fast and loose with the numbers on claims that it made about its Frosted Mini-Wheats cereal, which the company said in TV advertisements could help to boost attentiveness in children by 20 percent. That was too much for FDA’s sister agency regulating TV and radio advertising, Federal Trade Commission, which revealed that Kellogg’s study showed that only 1 in 9 kids improved his/her attentiveness score by that much. But even that embarrassing conclusion missed the point: The study compared kids who ate Frosted Mini-Wheats with kids who—you guessed it—skipped breakfast entirely. Even after they set a bar that low, only 1 in 9 kids was able to concentrate 20 percent better with a belly full of Frosted Mini-Wheats!
Even though FTC made Kellogg agree to end the misleading advertising after squelching the attentiveness claims, Kellogg continues to market the cereal on a Web site that uses the slogan “Keeps ’Em Full, Keep’s ’Em Focused.” The Web site also features a classroom theme and promises increases in attentiveness. FTC didn’t impose a fine on Kellogg, because fines aren’t allowed for a first-time offense. FTC also didn’t force Kellogg to offer a refund to those who bought the cereal, even though it had every power to make Kellogg do that. FTC spokesperson Mary Engle says the agency can’t comment on the specific case but notes that several factors are considered when FTC decides whether a company should offer a refund to its customers for an inflated marketing claim.
Yet experts say federal scrutiny of food-marketing claims, such as those that are made by cereal companies, has increased under the Obama administration. In addition, since First Lady Michelle Obama made childhood obesity a signature issue, FDA and FTC stated publicly that more must be done to keep food manufacturers in compliance with labeling laws.
Nevertheless, some of the most egregious cereal-marketing claims are beyond FDA’s power to regulate. FDA long has been able to regulate food companies’ claims that their products work like drugs that have the ability to prevent, treat or cure a disease. But FDA doesn’t have the same authority over foods that purport to aid a specific bodily structure or function, such as prostate health or liver function. Those so-called structure/function claims were deregulated in a 1994 law that dealt with dietary supplements, and the cereal industry has latched onto such claims. But the slight distinction is lost on most consumers, says Bruce Silverglade of nonprofit Center for Science in the Public Interest, which is a lobbying group that advocates tighter regulation of food marketing.
For instance, during the height of parents’ concerns last year over the H1N1 virus, boxes of Kellogg’s Rice Krispies and Cocoa Krispies claimed in big bold letters, “Now Helps Support Your Child’s Immunity.” The back of the box portrayed the cereals’ cartoon characters, Snap, Crackle and Pop, dressed like crime-fighters to take on germs, and it explained that the cereal had been improved to include “antioxidants”—otherwise known as vitamins A, B, C and E—that met 25 percent of the daily recommended amount.
In other words, the cereal provided vitamins that most kids who live in developed countries get anyway from other foods, while Kellogg seemed to prey on parents’ fears of a viral epidemic. Kellogg agreed to pull the claim in November 2009 after the city attorney in San Francisco threatened to take legal action against Kellogg over its claim. But as of March, we still found the immunity claim on boxes in the cereal aisle, which suggests that the company is waiting until the end of flu season to remove the label. We’re not surprised that Clark says it was a coincidence that the claim came out during the height of public anxiety about H1N1.