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If you or your clients make health claims in advertising, the FTC’s settlement with Dannon Corporation for allegedly false and deceptive representations about Activia Yogurt and DanActive is a must-read.  The FTC worked closely with 39 state Attorneys General, who announced a simultaneous $21 million settlement with the company.

You might want to finish lunch before digesting the details, but let’s start with Activia. According to the FTC, Dannon ran a massive national ad campaign that Activia could relieve temporary irregularity and help with “slow intestinal transit time” – which means, well, exactly what you think it means.

In one TV ad, actress Jamie Lee Curtis tells viewers that “87% of this country suffers from digestive issues like occasional irregularity” and “our busy lives sometimes force us to eat the wrong things at the wrong time.” She reassures viewers that Activia can help.

The screen then shows a woman’s midsection, on which chartreuse circles are superimposed, representing the transit of food through the digestive system. The circles then merge into a – let’s call it a clump – and then form a downward arrow that moves (mercifully) off the screen. A superscript appears that read CLINICALLY PROVEN WITH BIFIDUS REGULARIS while a narrator says, “With the natural culture Bifidus Regularis, Activia eaten every day is clinically proven to help regulate your digestive system in two weeks.” Thus, according to the FTC, Dannon claimed that eating one serving of Activia a day relieves temporary irregularity and helps with slow intestinal transit time – and that the company had clinical proof to back up those claims.

Even if your last foray into science was Freshman Biology, it’s worth your while to take a look at how the FTC complaint addresses some of Dannon’s substantiation. For example, through a link on the Activia website labeled For Health Care Professionals, Dannon presented what it described as “a detailed scientific resource that will provide in-depth information about Bifidus Regularis and its effect on slow intestinal transit.” One document mentioned two clinical studies by Meance and others, referring to the effects on transit time among subjects given different daily amounts of Activia. According to the complaint, the two Meance studies had also tested the effects of eating Activia against a placebo group, but that information was withheld from the scientific journal to which the studies were submitted, thereby concealing the finding that there was no statistically significant difference in transit time between the group that ate Activia and the placebo group that didn’t.

The For Health Care Professionals page also featured a link labeled View List of Peer-Reviewed Scientific Summaries. A document called Studies on Bifidobacterium DN-173 010 from Danone again referred to the Meance studies without mentioning that the groups that ate Activia didn’t show a statistically significant improvement. The FTC also charged that the purported “summaries” failed to mention one peer-reviewed study and five unpublished studies that showed no statistically significant improvement in transit time when the Activia group was compared to the placebo group. All told, the FTC alleged that 8 of 10 scientific studies showed no statistically significant effect of Activia on transit time when compared to placebo. As a result, the FTC charged that Dannon’s claim that Activia was clinically proven to relieve temporary irregularity and help with slow intestinal transit time was false.

Next:  The FTC’s allegations about Dannon’s DanActive and the order entered in the case

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