Nutritional Advertising Claims: This Trend Requires No Sugar-Coating

Mar 10, 2021 by Lauren Eskenazi, Program Manager, CFBAI and Robyn Lewis, Attorney, National Advertising Division

The food advertising world has changed in many ways since the Doughnut Corporation of America put out an ad in the 1940s for a product called Vitamin Donuts, claiming each donut was “fortified with a minimum of 25 units of Vitamin B1” and would provide consumers with “pep and vigor.” While the notion of a healthy donut was (and is) certainly aspirational, these advertising claims were misleading and nowhere near the truth. 

Although the advertising landscape has evolved considerably since that time, health claims continue to play an important role in food advertising and still present challenges. And for many of us, of course, the coronavirus pandemic has dramatically shifted our thoughts, behaviors, decisions, and diets, a reality worth remembering during this National Nutrition Month.  

While the “Quarantine 15” (sometimes called the “Quarantine 19”) has been a common humorous reference for weight gained during this past year, many individuals have, conversely, increased their focus on their health and well-being during the pandemic. For parents, this means increased awareness not only of what they are eating but also what they are feeding their children.   

Today’s food and beverage purchase decisions are influenced by far more than price, taste, familiarity, and brand loyalty. Consumers crave more information about the foods they eat and expect more from the food industry, including transparency and trust in their advertising. Adults of all ages want truthful, easy-to-understand information about their foods’ ingredients, the nutritional content, where their food is coming from, how it is produced, the quality of the ingredients, its environmental sustainability, and whether the brand engages in socially responsible business practices. Parents increasingly desire nutritious foods that their children will enjoy, made with wholesome ingredients that support their family’s healthy lifestyle.  

But the marketplace can be overwhelming. Foods are packaged with an array of labels and are often marketed with healthy-sounding buzz words such as “fresh,” “low sugar,” or “natural.” Verifying the accuracy of these claims is a challenge for even the most well-versed consumer.

 

How can you be sure that the food claims you see are truthful and supported by reliable evidence? 

BBB National Programs’ National Advertising Division (NAD), established in 1971, is responsible for holding companies responsible for the truth and accuracy of their national advertising, including the claims found on product packaging. Almost 50% of cases seen by NAD each year are classified as health and wellness claims.  

For instance, in a recent NAD case involving the packaging of baby food, the advertiser used the term “fresh” to describe its organic, refrigerated baby food product. According to the Food and Drug Administration (FDA), using the term fresh on a label suggests that the “the food is unprocessed,” meaning the food is raw, not frozen, thermally processed, or preserved in any way. The baby food product at issue, however, underwent a form of processing called “high-pressure processing” to kill harmful bacteria. NAD accords great weight to federal regulations and guidance and, consistent with the FDA’s definition of “fresh,” determined that consumers would not expect a “fresh” baby food product to be processed in this manner. So, NAD recommended the “fresh” claims be discontinued.  

 

 

Cases concerning products advertised as “natural” are increasing at NAD. In one case, a fiber supplement product claimed to be “100% Natural.” The product was manufactured using a natural ingredient called wheat starch, but during the manufacturing process, hydrochloric acid was added to the wheat starch. This, combined with other processing methods, resulted in the transformation of the original wheat starch ingredient into an entirely new ingredient called wheat dextrin. NAD found that the transformation of the source ingredient was so significant that consumers would not reasonably consider the product to be “100% Natural,” and recommended the claim be discontinued.  

“Low sugar” and “no sugar” advertising claims have also permeated the marketplace. In another NAD case, a producer of oat milk claimed that its product “includes 0g Added Sugar.” Added sugars are usually easy to identify – for example, sugar products can be added to sweeten a cake, yogurt, or even barbecue sauce. But in the case of this oat milk product, the sugar did not come from an external source. Rather, the process of breaking down oats to make oat milk created a sugar called maltose. The “0g added sugar” claims appeared on the product’s Nutrition Fact Panel, which was also reposted on the company’s website.   

Since the Nutrition Fact Panel itself is governed by the FDA and is not considered advertising, NAD took no position on the accuracy of the “0g Added Sugar” as printed on the panel. However, NAD determined that reposting the Nutrition Fact Panel information on the company’s website was considered advertising and subject to its review. Ultimately, NAD found that consumers would understand “added sugars” to include the maltose in the oat milk and recommended the claim be discontinued in the company’s advertising. 

Advertising claims regarding the ethical or sustainable practices of companies also resonate powerfully with consumers, and NAD works to ensure these claims are truthful, too. For example, in a case involving the manufacture of pork products, the advertiser claimed its products were “Ethically Raised by Family Farmers Committed to a Higher Standard of Care, Governed by Third Party Animal Welfare Audits.” NAD found that this claim communicated to consumers that the advertiser’s animal raising practices exceeded industry standards. A review of the advertiser’s animal care practices, however, revealed that the advertiser practices were consistent with industry-standard metrics, but did not meet the promised “higher standard of care” claimed on the product package. So, NAD recommended that the advertiser discontinue its “ethically raised” claim. 

 

A Commitment to Excellence in Children’s Food and Beverage Advertising 

In the children’s space specifically, 19 of the leading food and beverage companies and quick-serve restaurants participate in BBB National Programs’ Children’s Food and Beverage Advertising Initiative (CFBAI), where they agree to meet the program’s strong Uniform Nutrition Criteria to improve the landscape of food advertising to children under age 12. Going beyond truthful advertising, these companies voluntarily pledge to advertise to children only foods or beverages that meet these strict standards.  

CFBAI’s criteria set limits on the calories, saturated fat, sodium, added sugars (aligning with the revised FDA label), and minimum requirements for important food groups and key nutrients. The criteria, created in 2011 and revised in 2018, have resulted in significant changes in the foods advertised to children including reductions in sugar, sodium, and increases in food groups like whole grains and nutrients. The program is very transparent about these requirements, making publicly available the list of foods that qualify for child-directed advertising, including their nutrition facts panels. CFBAI independently monitors child-directed media and participating companies submit annual reports to assess compliance with their CFBAI commitments, including that any child-directed food advertising on covered media comply with CFBAI’s Uniform Nutrition Criteria.   

Occasionally CFBAI finds a food ad on child-directed TV programming or on a website that does not qualify under the criteria. Sometimes a brand mistakenly airs a food ad for a product that qualifies under the criteria but does not align with the company’s product list or its CFBAI pledge not to advertise any foods to children under 12. When these incidents are brought to a participant’s attention, the advertiser adjusts its procedures and puts safeguards in place to prevent future occurrences. Although CFBAI participants may be expelled from the program and referred to the Federal Trade Commission (FTC) for failure to adhere to their pledges, this has never been necessary. 

Under NAD, if the advertising issues presented to companies are not remedied in a timely fashion, the companies can be referred to the FTC or FDA for consideration and possible investigation. A recent partnership with Facebook provides for reporting misleading advertising directly to the social media platform as well. Most companies voluntarily adhere to NAD’s recommendations, demonstrating the strength of self-regulation. 

No matter the demands of the consumer, the food industry needs to manage consumers’ expectations, not try and meet them with false advertising claims. Companies that are truthful and transparent help consumers feel more confident in their purchase decisions and inevitably build consumer loyalty/trust. And not for nothing, these companies can also stay out of the crosshairs of advertising watchdogs such as the National Advertising Division. 

Suggested Articles

Blog

Enhancing Brand Safety: Understanding Self-Regulation vs. Independent Industry Self-Regulation

With copious amounts of content proliferating across a growing number of platforms and websites, it is an ongoing challenge for advertisers and platforms to ensure that digital ads are not placed next to harmful content. In this conversation, there is a key distinction few are making — the difference between ‘self-regulation’ and ‘independent, industry-wide self-regulation.’
Read more
Blog

CFBAI and CCAI Published the 2020 Annual Report on Participant Compliance and Program Progress

BBB National Programs has released the CFBAI and CCAI 2020 Annual Report, which includes findings on CFBAI and CCAI participant compliance with their commitment to advertise only foods that meet CFBAI’s strict Uniform Nutrition Criteria or to not engage in advertising primarily directed to children under age 12. The Report indicates excellent compliance by the 19 CFBAI participants and the eight CCAI participants in 2020.
Read more
Blog

What Do You Need to Know about the Florida Lemon Law?

If you have ever purchased or leased a car or SUV that you consider a lemon, you may have questions about the myriad of federal and state laws that govern your vehicle and the remedies available to you. Each state also has their own statute governing vehicles sold and leased in that state for personal use. Today, we look at the lemon law in Florida, one of the fastest-growing states in the U.S.
Read more
Blog

AI Can Be A Force For Good In Recruiting And Hiring New Employees

A challenge for rapid innovation in any industry is the ability for legal and regulatory requirements to keep pace. In the recruiting and hiring process, where AI provides aid to human decision-making and a welcome relief to managing a deluge of data, company leaders are asking themselves: How can we combine important technological innovation with a proactive approach to employment law requirements?
Read more