Michele Simon

Cross-posted from  Eat Drink Politics

Interview with Cara Wilking, senior staff attorney, Public Health Advocacy Institute

For this installment of Ask a Food Lawyer, we profile Cara Wilking, senior staff attorney with the Public Health Advocacy Institute, at Northeastern University School of Law. Her research focuses on the role of state consumer protection laws laws to limit unfair and deceptive food marketing to children. She also provides legal technical assistance to public health officials working to reduce sweetened beverage consumption and to increase access to drinking water. She is an adjunct professor at Northeastern University School of Law where she teaches the Public Health Legal Clinic.

Your role includes providing “legal technical assistance.” What does that mean?

Legal technical assistance is about providing expertise on legal and policy issues rather than providing legal advice to a client in the traditional sense. For example, I have worked with a local health department to think through different policy approaches that can be brought to bear on a tricky public health issue like reducing sugary drink consumption.

You recently co-authored a study finding that fast food television advertisements directed to children fail to meet the industry-funded Children’s Advertising Review Unit (CARU) voluntary guidelines. How are the results significant?

This was an interdisciplinary research project spearheaded by researchers at Dartmouth University’s medical school. The study analyzed TV advertisements, frame-by-frame, on four children’s networks over the course of a year. I found the stark difference in messages between adult and child advertisements to be significant. CARU guidelines specify that if an ad has a premium message (i.e. a toy), that message must be clearly secondary to the actual product advertised (i.e. the food). What the research showed, however, was that while adult ads focused on food, taste, and price, child ads focused on pretty much everything but the food; movie tie-ins, toys, giveaways, street views of the restaurant and brand logos. Even the physical size of the food images on the screen in child ads was half the size of those in adult ads.

What this shows is that CARU’s current method of analysis to determine whether fast food companies are adhering to their self-regulatory standards is inadequate. From a legal perspective, when companies make public pledges to do one thing and then do not fulfill those promises, they start to drift into making false representations to the public about their business conduct. Nike, Facebook and Myspace have been taken to task under state consumer protection laws for saying one thing and doing another. State regulators should be taking a hard look at McDonald’s and Burger King in light of these findings.

What’s the next step, legally, in addressing fast food ads directed to children?

There are several steps, actually. I think the public health advocacy community needs to address specific fast food companies when it comes to advertising. Our study showed that McDonald’s and Burger King were responsible for 99% of all child fast food advertising on television. Efforts to curb fast food advertising on television should be directed at these two companies, because, as the dominant players, any changes they make would have ripple effects across the industry.

Also, cities and states should follow San Francisco’s lead to put local pressure on companies to improve the nutritional profile of the meals they serve that are accompanied by toys. If further research shows that toy premiums in ads are so persuasive to kids that they trump any other message in the ads, then premiums should not be advertised on television or via digital media so that companies can fulfill their self-regulatory promise to keep the advertising focus on food.

What role do you think lawyers play in supporting the good food movement?

This is an interesting question for me, because lawyers fall into two categories in my line of work. In public health departments, lawyers that advise officials on their scope of authority tend to be viewed as roadblocks to creative public health problem-solving. Lawyers tend to be risk-averse in most cases, which can be perceived as contrary to the goals of pushing the public health agenda forward. On the other hand, in my role as an advocate I get to brainstorm over thorny public health issues with public health practitioners and officials. As a lawyer, I can develop viable policy approaches, point out current laws that can be enforced more aggressively, unaddressed areas that need to be looked at creatively, and anticipate potential hurdles to potential solutions.

What’s most exciting to you about the good food movement?

I think there’s a growing movement against self-regulation, which is exciting. The public health community will continue to work with food companies, but if they continue to break their self-regulatory promises, there is only so much that people can tolerate. At a certain point, public promises that are not supported by actual changes in business activities begin to look a lot like misrepresentations. I think the good food movement needs to continue being dynamic and keep up the pressure on these companies to change how they do business.

What advice do you have for aspiring food and public health lawyers?

Everyone knows that the legal job market is very difficult right now. It’s even worse for people who are looking for work that matches their worldview, values, and passion. I think there’s a sense among new graduates that doing work not in line with one’s worldview isn’t useful, and I think that mindset needs to change. There is a mental shift that needs to take place to put the focus on strong legal skill-building, instead of subject matter expertise at the beginning of a legal career. So, my advice to a new lawyer is to surround yourself with experts in a field, at the top of their game, who are willing to mentor and train you in as many practical legal skills as possible. Then, you can leverage those skills into a field that you are passionate about.

For more information visit www.phaionline.org and follow @PHAIatNUSL. Many thanks to attorney Neil Thapar for assistance with this interview.

Cross-posted from Eat, Drink Politics

Earlier this month I attended a conference in Washington DC with the lofty title: “3rd Advanced Regulatory and Compliance Summit on Food & Beverage Marketing & Advertising.” The event’s main sponsor was the law firm of Faegre Baker Daniels, whose numerous mega-corporate food clients include Cargill, Dean Foods, and Nestlé. In addition, the firm represents (under the heading of “crop protection“) Big Biotech players such as Bayer, Dow, and DuPont. The presenters were almost all industry lawyers, with a few government types. Not one member of the plaintiffs bar or anyone from a public interest organization was a speaker, and it seemed most of the audience was also from industry.

In all fairness, I think it’s a good thing for defense lawyers to share information and best practices about how food companies can and should comply with the law. Adhering to laws and regulations, as feeble as those rules can be, is a good thing and corporations should strive for it. And I am happy to report that’s what most of this meeting was about: to help food companies (in legalese) “mitigate risk,” as opposed to how to get away with skirting the law.

For example, in a session called “Minimizing the Risk of Deceptive Health Claims Post-POM Wonderful” an attorney with the Federal Trade Commission tried to explain what sort of “substantiation” a food company would need to back up any health claims. (POM Wonderful has been embroiled in quite a fight with the feds over its exaggerated claims.)

A similar presentation was called “How to Use Clinical Studies, Data, and Results without Violating FTC Regulations: A Case Study on Omega-3 Claims.” You see, the feds are OK with making certain types of health claims on food products as long as you can back it up with actual science. Just how strong the research needs to be however, was never made very clear. When I tried to ask one government lawyer, What if the science is funded by industry?, the answer was also unsatisfactory: that might be considered as a factor but not a disqualifying one. Generally the feds like to consider these matters on a case by case basis.

The most unbalanced and frustrating panel was called: “Maintaining the Delicate Balance of Marketing to Children‚ Obesity and the Integrity of your Product.” The main speaker was Elaine Kolish, director of the Children’s Food & Beverage Advertising Initiative, a fancy name for the food industry’s sad excuse for voluntary self-regulation. Numerous groups have criticized CFBAI for its ridiculously generous nutrition guidelines and self-serving loopholes.

But to hear Kolish tell it, CFBAI was the best way to protect children, far better than government regulation. She claimed that all by itself, industry “has created robust rules, and changed them twice” and that “in a five-year period, self-regulation has done more than government.” Of course it has, because that same industry lobbied like hell to stop government from doing its job in setting better guidelines. Throughout her presentation, which at times bordered on shrill, Kolish showed her utter disdain for the feds, along with numerous public interest groups. She disparaged Center for Science in the Public Interest, saying they engaged in “litigation by press release.” She also attacked other groups including the Campaign for a Commercial-Free Childhood and Berkeley Media Studies Group for daring to complain about food industry exploitation of children.

Now reasonable people can disagree on this controversial topic and I realize I was attending an industry-friendly meeting, but Kolish said several things that should not have gone unchallenged. For example, she misrepresented the current science on how marketing to children is deceptive. If someone from the other side had been on that panel, the audience would have heard a far more balanced take. It was in fact a disservice to the industry representatives in the room to downplay the issue. I had this feeling at numerous other times during the event: that including a public interest perspective would have allowed for a more nuanced and stimulating discussion.

Another notable presentation was called “Update on State Food Labeling Laws: How GMO Labeling Initiatives Impact your Business Strategies.” Obviously industry is very concerned about the growing movement to label genetically-engineered foods. This panel was a good overview of current efforts, and mentioned several advocacy groups, including Food Democracy Now! for its role in the state bills. (Unlike Ms. Kolish, the speakers on this panel  – both with the sponsoring law firm – were factual and respectful.) It was interesting, though not surprising, to see how much industry lawyers were staying on top of advocacy efforts.

Finally, as would be expected, there were several presentations on the current threat of private class action litigation over deceptive food marketing claims, some offering tips on how to defend against such lawsuits. (I recently wrote about this trend in class actions.) The “natural” cases were clearly a huge concern. One attorney in the audience suggested food makers stop using natural labeling at all, which was very sound advice and refreshing to hear. Also discussed was emerging case law in which judges are deferring to FDA ruling on whether or not “natural” labels should be allowed on products containing genetically-engineered ingredients. But no one in the room expected FDA to do so anytime soon.

Over the three-day event, I had several constructive conversations with food industry attorneys who really don’t want their clients to get into legal trouble. But it was also clear that their good advice can sometimes come into conflict with the marketing department. So next time you see a food product making a deceptive claim, it’s probably either because the company received bad legal advice, or the marketers overruled the lawyers.

Cross Posted from Corporate Accountability International

Last month, I participated in an important panel at a childhood obesity conference to discuss the current strategy backed by some advocacy groups: asking industry to market “healthier” foods to children. But as Susan Linn and I recently argued, any marketing to children is harmful, regardless of the product’s nutritional content.

Instead of begging corporations to tweak the grams of sugar, fat and salt that these highly processed junk foods contain, we should demand that industry stop exploiting children altogether. Some advocates argue this approach is too radical. But it’s actually far more practical and ultimately more effective because of certain key tactics that industry uses to target children.

You can’t put nutrition standards on a clown

A nutrition standards approach to marketing to children fails to address the powerful and ubiquitous marketing strategy of branding. When Ronald McDonald goes into elementary schools or anywhere else he may roam, he (in the words of McDonald’s own CEO) “does not hawk food.” Problem solved, right? Except that the very purpose of using Ronald as a brand ambassador is to get children to associate fun and happy times with McDonald’s. This technique is so effective that young children prefer the taste of food wrapped with the McDonald’s logo. This is true even for food McDonald’s doesn’t sell. Here is how researchers described it: “Our findings add to past research by demonstrating that specific branding can alter young children’s taste preferences.” That’s powerful stuff.

Another study of 3-to-5-year-old children found that McDonald’s was the most recognized brand, followed by other fast food and soda brands. (The children were shown 50 different brands across 16 product categories.) These researchers seemed surprised that even very young children could recognize brands, “at a much earlier age than previously theorized.”

Branding is a key strategy for every corporation trying to build lifelong brand loyalty among impressionable children. They know the key to getting more consumers hooked on their products is to target children as young as possible. There is simply no way to apply nutrition standards to branding.

Stealth ads on the internet don’t have nutrient content

Another critical way that food corporations such as McDonald’s target children is through “advergaming” websites. For example, you hardly see any food images on HappyMeal.com, just a lot of fun and games. So improving nutrition standards won’t work there either. Moreover, the name of the game for such sites is to gather information about users, which in this case are unsuspecting children. That’s why the Center for Digital Democracy filed a complaint last year with the Federal Trade Commission charging that McDonald’s and several other food and media corporations violated the Children’s Online Privacy Protection Act by asking children to share their friends’ email addresses. But as Adweek explained, McDonald’s engages in even more aggressive tactics:

McDonald’s website for Happy Meals goes a step further, inviting children to make a music video by uploading their pictures and encouraging them to share the video with up to four friends, who then receive an email from McDonald’s: “You’ve been tagged for fun by a friend! Check it out! It’s a Star in Video at the McDonald’s Happy Meal Website.”

That Happy Meals contain apple slices and milk seems rather irrelevant when you consider how low this corporation will stoop to exploit children. According to McDonald’s internet privacy policy (almost a year after this complaint was filed) the company still encourages children to share friends’ names and email addresses but assures us that such information is deleted after McDonald’s contacts the friend. That’s a relief.

Most importantly, research suggests that this sort of stealth advertising can be more effective than traditional television commercials because children are less aware of online ads, probably because they are too busy having fun. According to a report from the Kaiser Family Foundation:

From a marketer’s perspective, one of the potential advantages of an “advergame” is the ability to draw attention to your brand in a playful way, and for an extended period of time (at least relative to a 30-second television ad) … On the Internet, the boundaries between advertising and other content may be harder for a child to distinguish. This medium does not have the natural breaks between commercial and non-commercial content which typify television.

That could help explain why the most recent federal government report on food marketing to children suggested that corporations were shifting their advertising spending from television to “new media” such as online, mobile and viral marketing, which are also relatively inexpensive. 

An incremental approach to end food marketing to children

Some advocates contend that tweaking the nutritional content of foods marketed to children is a good approach because it’s incremental, while stopping marketing altogether is asking for too much. But why must this be the only way to engage in incrementalism? I can think of many incremental alternative solutions to the nutrition approach to food marketing to children. The possibilities are truly endless, starting with the above examples of branding and internet targeting.

Let’s take branding. Even if McDonald’s won’t agree to Corporate Accountability International’s demand to Retire Ronald, there are plenty of smaller steps the fast food giant could take right now. For example, Ronald could stop visiting grade schools. I would consider that a pretty huge victory; far better than the addition of apple slices and milk to Happy Meals. Or Ronald’s image could stop appearing on children’s toys. Speaking of toys, McDonald’s could stop including them in Happy Meals. As could other fast food chains like Burger King, which is now promoting its “BK Crown Activity Box” with various toy tie-ins. Imagine, parents buying food for the food, not the toys.

These and many other incremental steps the food industry could take to stop targeting children have the advantage of not being dependent on nutrition standards that industry gets to define and manipulate. It’s also far easier to monitor and enforce a policy such as “no advergaming” than one based on grams of salt, sugar and fat. But most importantly, marketing to children is inherently deceptive and harmful and we should demand corporations stop engaging in this unethical behavior. Because that’s the right thing to do.

Cross Posted from EatDrinkPolitics

Proving that a good story just won’t die, the current issue of the Progressive takes an in-depth look at my report from January on the conflicted corporate sponsorships of the Academy of Nutrition and Dietetics. And good timing too, because registered dietitian Andy Bellatti’s Change.org petition on this subject is gathering steam. You can download the Progressive article here. Thanks to investigative journalist Christopher Cook for such great coverage. Is anyone at the Academy listening yet?

In what is becoming an all too familiar sight, the major food corporations recently teamed up with the First Lady’s Partnership for a Healthier America to announce their latest PR attempt to look like they are helping Americans eat healthier. A group calling itself the Healthy Weight Commitment Foundation, led by the CEO of PepsiCo–the nation’s largest junk food and sugary beverage pusher–claims to have delivered on its promise made in 2010 (a commitment, get it?) to reduce calories “in the marketplace” by 1.5 trillion. They further claim to have exceeded this goal, and all this a full three years ahead of schedule. The quotes by all involved were practically giddy.

The funny thing is, the official evaluation, funded by the Robert Wood Johnson Foundation, is not actually out yet, and won’t be until sometime this fall. Instead of waiting for what could be a negative, and certainly more scientific take, industry instead jumped the gun. The alleged data to back up its claims is contained in a vague document, posted here under the heading of “Preliminary Report,” even though industry is not even conducting the actual analysis. Instead, that effort is being done independently by Barry Popkin, a researcher at University of North Carolina at Chapel Hill, who confirmed with me that his results won’t be available until the fall.

Meantime, what to make of this industry spin? I asked Bruce Bradley, a former food industry executive turned blogger and author. He was skeptical, to put it mildly. Here are his thoughts about industry’s claims of calorie reduction:

First off, measuring something like this at such a high level is recipe for bias. There are just so many ways to manipulate the data to say what you want. Then when you consider who is issuing the report (HWCF) and their self-interest in appearing as responsible, I am very suspicious.

One big question I have about the data is the economic times we live in. Pre-recession habits are reflected by 2007 data. Certainly lots of families have had to cut back their food expenditures with the harder times of 2012. Again, this is certainly convenient for the sake of HCWF’s calculation. One big caveat to this is that while harder times may have required people to cut down their grocery expenditures, it also required them to cut down their “eating out” spending and make more meals at home. I don’t know restaurant trend data as well as grocery data, but I’m guessing that given how this recession has hit lower/middle income households harder than upper middle/upper income households, the impact of restaurant/foodservice consumption trends is somewhat muted, especially since this data is for 2007 and 2012.

Another big question is how Walmart was accounted for in the data. Since about 2001 Walmart refused to release any sales data. They changed that policy in 2012 and again started to share their sales information going back three years (to 2008) [Source: MediaPost Publications Nielsen Adds Walmart Data To Sales Product 03/15/2012]. Since this report goes back to 2007 what I’m imagining HWCF had to do to equalize this number was to remove Walmart from the calculation since no data was available for Walmart from that period. This would be a very convenient “have-to” for HWCF since sales volume continues to shift from more traditional grocery formats to Walmart.

Another trend that could distort this data is the increased consumption of private label foods. Since the economic downturn, private label has grown significantly. Although private label has made inroads into healthier categories, it still packs a bigger punch in traditional, high fat/salt/sugar categories. I’m guessing growth in private label is yet another way that disproportionately took high calorie volume away, hence making the HWCF’s number look better.

Finally, the beverage category is for sure one that is “helping” HWCF’s numbers. Lower/no calorie drinks is a huge trend, but it’s a crime that low/no calorie beverages are considered “healthy.”

Let’s see if the analysis due out this fall paints a more accurate picture.

 Cross-posted from Center for Food Safety

What are front groups?

In response to heightened criticism over the past few years, the food industry has stepped  up its public relations efforts to reassure the media, the public, and policymakers that our food system is healthy and safe. One increasingly common way industry attempts to shape the public discourse is by forming a group that appears to benefit the public. Often these groups claim to represent farmers or consumers or some other sympathetic constituency when in fact they are funded by powerful industry players. Some long-standing front groups have a broad agenda, such as pushing industry-friendly science. Others form just to lobby or conduct public relations on a specific policy for a limited time and then disappear. It is critical to understand who these groups are and how they operate. Their tactics are designed to hide their true agenda and funders. For example, representatives of front groups often write op-eds or appear as experts without disclosing the conflict of interest.

What is the difference between trade groups and front groups?

Food companies hire lobbyists to push for legislation in their favor and oppose laws that hurt their interests. Trade groups are formal lobbying organizations through which food companies pool their resources to be more powerful. An example of a food industry trade group is the National Cattleman’s Beef Association, which represents the beef industry. Each major animal product (pork, chicken, eggs, dairy) is represented by its own trade group. Likewise, the soft drink industry is represented by the American Beverage Association, while the Grocery Manufacturers Association represents both food and beverage makers such as General Mills, Coca-Cola, and Kraft Foods.

While trade groups are generally up front about who they represent, front groups are not. Front groups often have deceptive-sounding names and attempt to create a positive public impression that hides their funders’ economic motives. Also, most front groups engage mainly in public relations campaigns as opposed to lobbying.

Why does industry form front groups?

Several motivators explain the rise of front groups in recent years. Most branded food companies (such as McDonald’s or Coca-Cola) have millions of dollars invested in their public image and so would rather not engage in the under-handed and mean-spirited tactics that some front groups utilize. It’s much safer to give money to front groups to let them do the dirty work while the corporate brand image remains clean. Also, the largest players in the food industry know that “Big Ag” and “Big Food” have become synonymous with bad, so they are no longer credible messengers. It’s better to create a front group that claims to represent farmers or consumers, two groups that are more sympathetic to the public. Similarly, industry knows that it has little credibility when it comes to complicated matters such as science. Years ago, the Tobacco Institute became notorious as the public relations arm of the tobacco industry— its aim to distort the science around smoking and health. This tactic effectively delayed public policy on tobacco for decades. The food industry’s current effort to distort science is similar, but somewhat more subtle, operating through less obvious front groups.

What are common front group tactics?

The main goal of any front group is to control the public discourse. Front groups are created in direct response to criticism being leveled at a sector of the food industry. Instead of fixing the myriad problems they’ve created, the food industry’s response is to change the way these problems are talked about, to downplay them, to discredit critics, and otherwise make the problems disappear from the public’s eye.

How do front groups accomplish this goal? The most valuable currency for any front group is propaganda and disinformation. Specific tactics include:

ASTROTURFING (FAKE GRASSROOTS): pretending your group represents the little guy, usually farmers, small business owners, or consumers. The idea is to make the public feel like the group is on their side and their interests are under attack by government and the elite.

SHOOTING THE MESSENGER: discrediting critics often by mocking them, calling them names like “food police” and “extremists” and otherwise marginalizing them.

BUYING SCIENCE: paying for research, hiring scientific experts as spokespeople, placing science stories in media, all without disclosing the conflict of interest.

SCAREMONGERING: Praying on people’s fears, especially related to the economy; for example, saying a policy will result in higher food prices or job losses.

Another common tactic employed by front groups is to “debunk” common “myths” about agricultural practices or nutrition advice. Front groups will portray advocacy groups, experts, and government officials as fearmongers who don’t understand science or know the “facts.” The idea is to make the front group position appear sane and reasoned, while making opponents sound irrational and even conspiratorial.

A similar theme in front group discourse is to portray opponents as antidemocratic and anti-consumer. Often front groups will use hyperbolic language to describe policy ideas as threats to core American rights such as freedom. Such tactics exploit many American consumers’ fears and detract from the actual issue under discussion. Each of these tactics is then deployed in a massive media campaign, through paid advertisements, media coverage, published research, op-ed articles, TV appearances, social media, etc. The idea is to distract attention from the substance of the issue (because industry often has no defense) and focus instead on anything else.

Read the full report.

Cross-posted from Eatdrink Politics

Last week, Monster Beverage filed an unusual lawsuit against the San Francisco City Attorney’s office to stop an attempt to place restrictions on the company’s highly caffeinated and potentially harmful products aimed at youth. This aggressive move is a form of backlash against using the legal system to hold the food and beverage industry’s accountable for deceptive marketing practices.

With the federal government all but ignoring the numerous ways food companies deceive shoppers with dubious health claims, the courts are becoming a more popular alternative for action.

As you may recall from civics class, we have three branches of government, and when two of them – the executive and the legislative – have essentially checked out, that leaves only one place to turn for a legal remedy: the judiciary. Despite years of brainwashing by the right wing about the evils of trial lawyers, litigation is a critical and yet underutilized tool for obtaining justice under a broken and compromised political system.

Under both federal and state law, it’s illegal to engage in deceptive marketing. This is a broad concept that applies to any entity that advertises. The idea is that consumers should not be swindled into buying a product; they deserve the straight facts to make informed purchasing decisions. And while such laws do help deter shady activities, deceptive marketing statutes get violated all the time, mostly due to lack of enforcement.

It may be unsettling to realize that on grocery store shelves right now are likely hundreds of food products that contain illegal deceptive claims. While the federal government does have specific definitions for some phrases such as “low fat” or “low salt,” otherwise almost anything goes on the front of a food package because the feds have turned a blind eye. Without proper government oversight, the only recourse is for private law firms to set these companies straight.

Here are some examples of deceptive food marketing cases currently gaining traction. (Full disclosure, I am a consultant for Reese Richman, one of the law firms bringing such cases.)

Natural Claims

The Food and Drug Administration is unwilling to provide useful guidance on the definition of “natural,” resulting in ubiquitous use of the word by marketers, no matter how nutritionally deficient the product. Factor in the growing interest in organic along with consumer confusion over that label’s meaning and you have a marketing bonanza in “natural” food.

Some lawsuits are being filed over products sporting the natural label that contain genetically-engineered ingredients. Two such examples are ConAgra’s line of Wesson cooking oils and Frito-Lay’s snack products. To back up their claims, lawyers are even relying on Monsanto’s own definition of genetically-modified organisms: “Plants or animals that have had their genetic makeup altered to exhibit traits that are not naturally theirs.”

In a positive development in the ConAgra case last November, the judge found that that the plaintiffs adequately described “why genetically-modified products cannot be considered natural” and “they understood that the phrase ‘100% Natural’ meant that Wesson Oil was not made from genetically modified organisms, and that they purchased the product based on this false understanding.” This is a huge step forward for these types of cases.

In a similar action against Frito-Lay, the court recently made a preliminary ruling in favor of the plaintiff allowing the case to move forward. In its defense, Frito-Lay argued that no reasonable consumer would expect the phrase “all natural” to actually refer to all of the ingredients in the product. The court disagreed, since a reasonable consumer could interpret “all natural” to mean, um, all natural.

Such cases have tremendous potential to rock the processed food world, given how many products containing GMO ingredients are currently touting the meaningless natural label. Moreover, with increasing calls for mandatory GMO labeling at both the federal and state levels, along with voluntary retailer actions from the likes of Whole Foods, this issue is not going away anytime soon.

Other cases challenging the natural label are over products containing ingredients that are obviously not natural. One such lawsuit is against the Kellogg-owned Kashi GoLean brand of products. From the complaint:

For example, Kashi’s ‘All Natural’ GoLean Shakes are composed almost entirely of synthetic and unnaturally processed ingredients, including sodium molybdate, phytonadione, sodium selenite, magnesium phosphate, niacinamide, calcium carbonate, calcium phosphate, calcium pantothenate, pyridoxine hydrochloride, thiamin hydrochloride, potassium iodide, and other substances that have been declared to be synthetic substances by federal regulations.

Not sounding very natural. The judge has allowed this case to move forward.

Products Aimed at Children

Marketing to children qualifies as illegal deception because a child cannot understand how marketing works. What could be more deceptive than taking advantage of a child’s emotional vulnerability? Unfortunately, we have zero enforcement of this obvious legal violation due to weak-kneed government officials, once again leaving it up to the court system.

To date only one lawsuit has been filed directly challenging marketing to children— against McDonald’s over Happy Meals—an obvious target. The case was brought by the Center for Science in the Public Interest, the only nutrition advocacy group with a litigation department. (This helps explain why this tool is so underutilized.) Unfortunately, the judge dismissed the case last year. While suing over marketing to children does face certain procedural challenges, with the right venue and strategy, I am hopeful we can gain traction in time.

In lieu of directly challenging food makers for targeting children, another strategy emerging is suing over child-oriented products that make deceptive health claims. One such example is the General Mills’ product, Fruit Roll-Ups.

Also filed by Center for Science in the Public Interest, this case took the company to task for its claims their products were “fruit flavored,” “naturally flavored,” a “good source of vitamin C,” and low in calories, fat, and gluten. (Seriously, low in gluten?) In December, this case was settled when General Mills agreed to stop using the most egregious practices; for example, no longer putting images of strawberries on a product that contained none. Duh.

Chutzpah Claims

Taking the prize in the chutzpah line of cases is Coca-Cola’s vitaminwater brand. This lawsuit alleges deceptive marketing for positioning the product as a health tonic, when some varieties contain a whopping 33 grams of sugar (in 20 ounces), among other unhealthful ingredients such as dyes. That case has also been allowed to move forward, despite Coca-Cola’s desperate argument that “no consumer could reasonably be misled into thinking vitaminwater was a healthy beverage,’ a claim that was skillfully ripped apart by John Robbins and as well as hilariously pilloried by Stephen Colbert.

Another product deserving a chutzpah award is Chobani yogurt, a brand that has taken on near-iconic status in the most health-washed category of all. Chobani is being sued over its “all-natural” claim (among other statutory violations) because the label lists “evaporated cane juice,” which is just a fancy way of saying sugar. This, despite the FDA’s explicit warning to food makers not to use the phrase because the accurate description of the ingredient is actually “dried cane syrup.” But juice sounds so much more “natural” than syrup.

In a recent Twitter exchange, I had some fun with the poor social media person at Chobani. Despite the lawsuit, the company continues to use the phrase “evaporate cane juice.” When I asked why not just call it sugar, the reply was: “It’s specifically the form we use. Not all sugars are created equal.” But I got no response when I next tried to ask exactly how their sweetener was any different from sugar. (Maybe the lawyers got hold of the Twitter account.)

Rounding out the chutzpah category is Nutella, which got in legal trouble for advertising its dessert-like product as healthy breakfast. Although the case was settled for $3 million, it was also the subject of some ridicule by those who thought it was obvious that Nutella is a treat. But that critique misses the point: Under the law, companies are not allowed to market its junk food products as healthful. In a seminal case against Gerber for deceptively marketing children’s “fruit snacks,” the company tried to use the Nutrition Facts label as a defense, since the ingredients and amount of sugar are clearly listed there. But the judge explained that information being available elsewhere (like on the back of the package) does not make it OK for a company to deceive consumers in other ways, such as on the front of the package or in ads.

Litigation Challenges

While litigation represents an important tool for holding food companies responsible, there are also numerous challenges. For example, the strategy requires targeting one product or line of products at a time, which is not the most efficient approach for sweeping change. However, strategic selection of the worst (and largest) offenders can send a strong message to an entire industry.

Another limitation is how long the court process can take: often several years just to get through the preliminary phase. And, corporate defense lawyers are skillful at dragging out the process in hopes the plaintiffs will give up. Finally, the results are sometimes less than ideal. Most cases end in settlement because they are too costly to bring to trial, and negotiation necessitates compromise.

But given the widespread health-washing by a desperate food industry at a time when the American public is starting to realize that actual fruit may be a healthier option than Fruit Loops, litigation is a critical, if imperfect, tool.

Why Get Involved in Litigation?

Advocacy groups engaged in the good food movement should take notice. While major foundations may be too skittish to fund litigation, organizations can still team up with private lawyers to bring more of these sorts of cases. Nonprofits can play different roles such as: 1) offering specific expertise as consultants; 2) asking their members to serve as plaintiffs; 3) being a named plaintiff themselves in certain types of actions; or 4) serving as co-counsel.

Perhaps the best motivator for a nonprofit group to get involved in litigation is the potential for being awarded part of a “cy pres” fund: money set aside in a settlement for nonprofits doing good work that is sufficiently related to the case. Several good projects got their start with cy pres money, including a California-based group called CANFIT, which works with adolescents around health and nutrition. That settlement fund was from a deceptive marketing case against Kraft Foods, and some 20 years later the group is still going strong.

We have our work cut out for us with so much deception in the marketplace, but with better coordination and teamwork, we can make real progress through the legal system. It’s a shame that we have to turn to the courts at all, but that’s the political reality right now. Someone has to hold the food industry accountable.