Peter Quinter of Becker & Poliakoff
Guest Post from The Customs and International Trade Law Blog
The U.S. Food and Drug Administration recently issued several warning letters to prominent food and drink companies regarding false claims displayed on their food and drink products, including those marketed to children. Some food products brazenly claim to increase a person’s immune system, reduce the chance of getting a cold, or even cure cancer. Are they really believable?
The Obama Administration has taken a more aggressive posture to attempt to reduce the obesity of Americans, especially children. There is a direct connection between what we eat and our health. Remember the saying “You are what you eat”? Dr. Margaret Hamburg, the new FDA Commissioner, announced in a March 3, 2010 letter to food companies:
I have made improving the scientific accuracy and usefulness of food labeling one of my priorities…It is clear to me as a working mother that the use of front of pack nutrition symbols and other claims can be helpful to busyy shoppers who are often pressed for time in making their food selections.
In a typical Warning Letter to one of the worlds’ largest food companies, Nestle, in a December 4, 2009, the FDA complained about Juicy Juice All Natural 100% Juice Grape products. The FDA alleged that the product was misbranded because the lables were misleading in that the label was designed to imply that the producct is 100% grape juice when it truly was not.
The FDA regulations regarding food, including drinks, are complex. True and accurate health claims are allowed on certain food products under specific circumstances, according to the FDA guidance. Hopefully, the food industry will be more responsible, and if not, I encourage Commissioner Hamburg to pursue civil penalties against companies and the corporate officers of those companies who deceive the public.
A discussion about health claims on food products and how to respond to FDA Warning Letters will take place on June 3, 2010 in Miami, at a seminar entitled “Importing Food Products in Compliance with FDA and U.S. Customs Rules“.
In solidarity with FDA Commissioner Hamburg, I am a working Dad, and I don’t like to be lied to either!
Thanks Peter! -Ed.
About Joel Rothman
Joel B. Rothman represents clients in intellectual property infringement litigation involving patents, trademarks, copyrights, trade secrets, defamation, trade libel, unfair competition, unfair and deceptive trade practices, and commercial matters. Joel’s litigation practice also includes significant focus on electronic discovery issues such as e-discovery management and motion practice relating to e-discovery.
The 17 Warning Letters that were dated Feb 22 but made publiic March 3 were more of a shot through the engine room than a shot across the bows. Nestle alone got Warned on four products, and is most likely overhauling every label it sells. POM took a direct hit, as did walnuts, which has an FDA-approved health claim and still managed to go over the line!
What I found interesting is that the targets were all food companies. Usually the supplement industry takes a few hits when a shotgun blast like this goes off. We will have to wait to see if the FDA’s aim continues to be foods, or if supplements will get their turn.