Nestle HealthCare Nutrition, Inc., File No. 0923087, Proposed Consent Agreement #549604-00003 

Submission Number:
549604-00003 
Commenter:
Timothy Blood
Organization:
Organization:Blood Hurst & O'Reardon, LLP Blood & Timothy
State:
California
Initiative Name:
Nestle HealthCare Nutrition, Inc., File No. 0923087, Proposed Consent Agreement

Re: Agreement Containing Consent Order, In the Matter of NESTLE HEALTHCARE NUTRITION, INC., File No. 0923087 To whom it may concern: On May 18, 2010, the Federal Trade Commission (“FTC”) announced a proposed settlement with Nestlé Healthcare Nutrition, Inc. (“Nestle”) relating to the health benefits advertising claims of its “probiotic”-infused children’s drink BOOST Kid Essentials (“BOOST”). Under the proposed settlement, Nestle has agreed to modify and/or discontinue certain of its advertising. The FTC voted 5-0 to approve the administrative complaint and proposed consent agreement. Summary: Blood Hurst & O’Reardon, LLP supports the FTC’s efforts to help put an end to the rising trend in false advertising relating to so-called “functional foods,” including purported “probiotic” products such as Nestle’s BOOST Kid Essentials. However, the proposed consent agreement, limited to prospective advertising restrictions, does not go far enough. Food industry leaders, including Nestle, have made billions of dollars off of the probiotic fad. Hundreds of millions of advertising dollars have been spent falsely educating consumers that “probiotic” bacteria and other “functional” food actually provide health benefits, including benefits beyond ordinary nutrition. Therefore, conduct deterring measures in the form of required corrective advertising and a significant monetary fine should also be ordered. As the FTC properly alleged, clinical studies do not substantiate Nestle’s BOOST marketing claims. The studies relied upon by Nestle test irrelevant endpoints, are not human studies, are not adequately controlled, do not involve the BOOST product itself, and many are bought and paid for by the company, BioGaia Biologics, Inc., that supplied the “probiotic straw” in Nestle’s BOOST. However, the FTC should go further than simply requiring Nestle to revise future marketing for BOOST. First, as the FTC did in 1999 in a case involving Novartis Corporation and its advertising for Doan’s pain-relieving pills, Nestle should be required to engage in corrective advertising. Without strong corrective advertising, the bogus health benefits messages supported by multi-million dollar marketing campaigns from companies like Nestle, Dannon, and General Mills, will endure in the minds of consumers. Second, the FTC should impose a conduct-deterring monetary penalty. Just last month the FTC took serious action to stop bogus health claims by requiring Iovate Health Sciences U.S.A., (maker of the dangerous and deceptive Hydroxycut product) to pay $5.5 million to settle charges it falsely advertised that its supplements could help consumers lose weight and treat or prevent colds and other illnesses. Although a seven figure fine won’t restore any money spent by consumers on the falsely advertised BOOST product, it will send the appropriate message to Nestle and other companies that such blatant false advertising by companies that consumers know and trust will no longer be tolerated or ignored. Blood Hurst & O’Reardon, LLP thanks the FTC for the opportunity to comment on the proposed consent agreement, and applauds the FTC’s step in the right direction towards protecting ordinary consumers. A more detailed analysis of the proposed consent agreement has been mailed to the FTC and is also available at www.bholaw.com