Stephen Gardner, director of the litigation for public interest group said it best: "It truly shocks the conscience that a company like Coke would try to keep customers by selling them a soft drink and telling them it's a vitamin."
Over a year later, as the case came to trial, the lawyers defending VitaminWater shocked anyone who was paying attention by making the statement that, despite the product's claims, "no consumer could reasonably be misled into thinking VitaminWater was a healthy beverage."
To clarify, the product's name contains the word "Vitamin", an essential compound fundamental to the proper functioning of the human body, and "Water", an equally essential component of the human body, a lack of which leads to quick death. Advertisements for the beverage depict professional athletes at the top of their game sincerely stating that they drink the beverage daily. Flavours of the beverage have names like "Energy", "Focus" and "Power C". Yet, according to those representing the company, believing this product is good for you is unreasonable.
The entire legal strategy of the company is not to defend the truthfulness of the health claims themselves, but to argue that the health claims were never meant to be believed, thereby shifting the onus of responsibility squarely onto the consumer. Because the argument is not being made that VitaminWater is actually able to affect the consumer as the advertisements claim, one has to assume that the claims aren't true. In essence, the statement seems to be saying that advertisements are allowed to state lies in the promotion of a product. By this logic, products can state whatever exaggerated claims they like, tell blatant untruths in the interest of making sales, leaving it up to the consumer to assess whether the statements are reliable.
When actually broken down like this, the audacity of Coke's lawyers is jaw-dropping. But lies in advertising are nothing new. Citizens of our culture have grown accustomed to lies that make up the background of daily existence. Face creams make wrinkles disappear; sports drinks hydrate better than water; men's body sprays attract women like ravenous jackals and driving the right car makes one impervious to traffic. No one actually believes this stuff.
These marketing half-truths pervade everything we come into contact with. The following from Dr. Yoni Freedhoff on his blog Weighty Matters is quite typical:
"There are no actual 'nuts' in Honey Nut Cheerios. What there is, and it's the second to last of 18 ingredients behind the 6 different types of sugar representing ingredients 2, 3, 4, 5, 7 and 9, is, 'natural almond flavour'. What is, 'natural almond flavour'? Well according to Eric Schlosser's book Fast Food Nation it's benzaldehyde, which in turn is generally derived from peach and apricot pits. Can't say I blame Cheerios on this one though. Do you think 'Honey Benzaldehyde Cheerios' would sell? It just doesn't seem to have the same zing and really, what good are ethics when it comes to sales?"This constant backdrop of lies has resulted in a level of consumer cynicism that first responds to any statement with a cocked brow. Indeed, the modern consumer believes themselves savvy and above the din of advertising jargon. University communication courses teach us to read these ads and other media as 'texts', enlightening us and keeping the effects of these messages at arms length while we analyze rather than identify, avoiding becoming victim to the promises of a better life.
Or so we believe. A recent study by the market research firm Datamonitor found that the largest consumers of sports nutrition products are non-athletes. Not casual, once in awhile athletes; the marketing study had a separate category for this group. The largest consumers of sports nutrition products are complete non-athletes; those who do not engage in sport. The industry has begun calling this segment "lifestyle users" and believes that they need to be more specifically marketed to. The lifestyle of health is what is being sold here. An image of fitness, strength and beauty not tied to the actual act of physical exercise. To be like an athlete, we drink like an athlete, we don't work like an athlete. And, bogus or true, the health claims of VitaminWater and its ilk are obviously working, because people are buying.
Fast forward almost two years. In late September of 2010, the Federal Trade Commission (FTC) in the U.S. issued an administrative complaint against the company POM Wonderful LLC, the makers of the POM Wonderful 100% Pomegranate Juice line. They charged that the company was making false and unsubstantiated health claims about its beverages claiming, among other things, that POM products will prevent or treat heart disease, prostate cancer, and erectile dysfunction.
POM issued a statement after receiving an additional warning letter from the Food and Drug Administration (FDA) regarding their antioxidant based health claims. "As strong advocates of honest labeling and fair advertising, POM Wonderful wants its customers to know that all statements made in connection with our products are true, and are supported by an unprecedented body of scientific research."
There are obvious differences between these two referenced cases. While VitaminWater is a processed sugar beverage 'fortified' with synthetic vitamins, POM Wonderful is made almost entirely from pomegranate juice. The tack the lawyers are taking in the two cases is completely different. While VitaminWater argues that they are allowed to make any statements they like, POM is arguing its statements are all true.
Perhaps the most striking difference between the two cases is who is bringing charges against them. While POM has to defend itself against federal regulators over its claims, in the VitaminWater case it is an independent public interest group making the complaint while official federal bodies remain silent.
It's hard not to see a pattern here. A product that is truly harmful to the human body is left alone while it makes claims, both explicit and implied, about the health benefits associated with consuming it. Meanwhile a product that actually does have some potential to heal is attacked for making statements backed by scientific studies.
Yet the pattern is more pervasive than this. Supplement companies that sell vitamins, minerals, herbs and other health promoting compounds are expressly forbidden from informing the public about what their supplements actually do. Earlier this year the FDA began cracking down on supplement manufacturers for linking to scientific studies from their websites. In 2005, even cherry growers were threatened with legal action and seizures if they didn't comply by removing from their websites scientific information on the health benefits of the fruit.
The definitions laid out by the U.S. Federal Food, Drug, and Cosmetic Act are part of the problem. Currently, anything that cures, treats, mitigates, diagnoses or prevents disease is defined as a drug under the Act. Thus any substance found to have health promoting qualities would be defined as an unapproved drug if it was sold on that basis. Supplement manufacturers, food distributors and even farmers themselves are forcibly silenced in regards to the health benefits of their wares, or face serious charges of selling unapproved drugs.
It seems the food producers that sell nutrient deficient foods with no hope of benefiting a body that consumes them are allowed to bend, twist and alter the truth to suit their bottom lines. Meanwhile, foods that may actually benefit health are silenced. The lawsuit brought forward by the CSPI speaks volumes. The obvious question is, why isn't it the FDA that is pursuing the VitaminWater case?
Coca-Cola - making stuff up since 1923
An article by Mike Adams written back in December of 2008 might shed a little light on the subject. Adams believes that, at the time, a huge power-play was going on behind the scenes between Coca Cola and the FDA. Coca Cola had announced in early December that it would begin selling a new beverage sweetened with "Truvia", a brand name sweetener made in-part from the naturally sweet stevia plant. Coca Cola was moving forward with this despite not having FDA approval for the sweetener, stating they will "self-affirm" the sweetener as safe.
The FDA, seemingly in retaliation, issued a warning on December 10th, that Coca Cola's product Diet Coke Plus, a product that had been on shelves for 18 months at this point, was illegally labeled. Coca Cola called their bluff, stating that their products were legally labeled and that they had no intention of changing them. The FDA did nothing.
December 17th, with Coke ready to launch their Truvia sweetened product without FDA approval, the FDA preempted the launch by issuing a letter of no objection, "allowing" Coca Cola to sell their stevia-sweetened beverages. But more importantly the letter served maintained the appearance of FDA authority. If these sorts of power plays are indeed going on behind the scenes it begs the question, "Are Coca Cola, and corporations of similar size and political heft, too big to regulate?" This might explain part of the reason VitaminWater is off the FDA's radar while smaller companies like POM get the full treatment.
But regardless of why, this seems to be how it is. A battle is being waged between the health food companies and the FDA over freedom of speech in science. Their ability to tell consumers directly about scientific evidence proving the benefits of their products is what is at stake. Meanwhile, processed food companies seemingly enjoy much greater freedoms in what they're allowed to say. A vitamin C supplement can't mention on its packaging any of the known benefits of taking the supplement, while a vitamin C fortified sugar drink can tell you it can stave off disease. It seems a clear issue, with the FDA favouring the food processors and pharmaceuticals, while the good guys, the health food and supplement companies, are left in the cold.
And the health food bloggers seem to be behind POM all the way, crying foul that the FTC/FDA are targeting them with their unfair rules, purposely keeping the truth from the public. Pomegranate juice has a lot of impressive research behind it, mostly centered on the antioxidant potential of the fruit and its extracts. 36 different studies showing the benefits of pomegranates and their antioxidant capacity to heal have been posted on GreenMedInfo.com, a massive database of scientific, peer reviewed studies on natural substances. Everything from anti-inflammatory effects in rheumatoid arthritis to shrinking tumors in breast and prostate cancer have been associated with consumption of the fruit and its extracts.
However, the claims made by POM are bold, to say the least. Yes, pomegranates have an impressive antioxidant profile, but POM, a processed food, is not the best source for these compounds. For one thing, the juice is heavily manipulated, being both pasteurized and coming from concentrate. It may have upwards of 50 grams of fructose per serving with none of the fibre found in the whole fruit to slow down its absorption. The label also lists the ubiquitous "natural flavours" in its ingredients; a label that can signify a whole host of lab-synthesized ingredients, some of which can be harmful. Perhaps POM isn't all that wonderful after all.
And while boastful literature from the company, promoted after the FDA warning, claim its statements are backed by $25 million in scientific research, the scientific studies POM so nobly stands behind are equally questionable. The FTC complaint states that POM Wonderful's heart disease claims are unsubstantiated because many of their scientific studies didn't show benefit for heart disease from use of POM. It also says POM's studies on prostate cancer were not blinded or controlled studies and that the erectile dysfunction claims are invalid because the study failed to show POM juice was any more effective than a placebo.
In other words, POM Wonderful is a questionable champion to get behind in the quest for the allowance of honest reporting in health claims. The company was started by billionaire couple Lynda and Stewart Resnick of Roll International, which includes pesticide manufacturer Suterra, and Paramount Agribusiness among other holdings. The company has an extremely aggressive strategy having sued Coca Cola, Welch's, Tropicana and Ocean Spray for allegedly marketing their own pomegranate juice products in a misleading manner. And in September, POM Wonderful actually sued the FTC over its new health claims standards requiring companies to include reference to a minimum of two clinical, human trials and pre-market FDA approval for certain claims. POM asserts that the FTC's standards change was unconstitutional, and violates the First Amendment.
The true value of POM is what is at question. From a holistic health perspective, true healing is systemic in nature. Foods have a constant and synchronous physiological effects on us, different nutrients working together cooperatively to deliver nutrition and healing. It is a communication - an entire orchestra of harmonies and sub-harmonies working in concert to add to our vibrational tone. No single food or nutrient is a panacea in this model, but is only part of the whole.
But the holistic model just doesn't sell juice. In a fast-paced culture of sound bites and factoids, no one wants to connect the dots on what's behind their health issues. We want the quick answer, the pill, not the root cause. We look for the black and white information, categorizing our foods as "good" or "bad", maybe getting as complex as "really good" and "really bad" for the "health conscious".
But no food or supplement is the miracle pill. Health claims that state otherwise should always be questioned. Healing requires a whole lifestyle change including major changes to diet, environmental exposures, detoxification protocols even down to changes in the way one deals with stress and how one sleeps. This is the information that needs to get out to the people, not that POM has antioxidants. Foods and supplements can help in many of the steps toward healing, but none of them are the magic bullet.
Despite our modern needs, disease is not healed with super-juice while the unhealthy lifestyle practices that likely contributed to the condition are continued. But if the health claims of POM are to be believed, the same fast food diet can still be eaten, the same lethargic lifestyle can still be lived and the same stress filled, nutrient-deficient existence can still be maintained; because as long as POM is your beverage of choice, prostate cancer, heart disease and erectile dysfunction will be kept at bay.
The proposition is laughable, of course, yet those in the health community with an honest desire to see freedom of speech applied to health food products are getting behind POM, for better or worse. The holistic health world needs to be on guard for how the debate is being framed, and getting behind a questionable and aggressive champion can only lead in one of two directions: either POM wins the case and is allowed to continue peddling its "scientific" information, opening the doors for other processed health foods to do the same; or they lose, delivering a serious blow to an important issue of freedom of speech in science.
There are currently three bills in the first step of the legislative process which work to try to remedy the health claims situation. Two, the Health Freedom Act (H.R.3395), sponsored by Ron Paul, and the Free Speech About Science Act of 2010 (H.R. 4913), seek to make amendments to the Federal Food, Drug, and Cosmetic Act, allowing greater freedoms to food and dietary supplements distributors in speaking about scientific studies and limiting the ability of the Federal government to prevent health claims. The third, the Freedom of Health Speech Act (H.R. 3394), seeks to amend the Federal Trade Commission Act, shifting the burden of proof in false advertising cases, from the manufacturer to the FDA. It remains to be seen if any of these bills make it out of committee. Few ever do.
It's hard to say whether supporting these bills is necessarily the right thing to do. But, getting behind POM on this fight is really fighting to maintain the system we already have - one where easy answers are peddled and people are encouraged to find compensations for their unhealthy lifestyle in the boastful claims of the latest processed health foods. A public educated in what it means to have a healthy lifestyle, on what dangers lurk in our food chain and on what foods actually lead the body to thrive should be the top priority. Maybe instead of fighting for POM's right to tell us all about the findings of their questionable studies, we should be educating the public on the fact that, normally, the healthiest foods in the store don't make any claims.
Reader Comments
to our Newsletter