Legal Action Against Health Claims on Foods and Beverages Marketed to Youth

The prevalence of obesity among US children raises numerous health concerns. One pathway to reduce childhood obesity is by decreasing energy intake through the ingestion of fewer calories. Yet, food and beverage manufacturers often promote energy-dense items for children via varied health claims.Deceptive health claims are prohibited, and may be addressed through litigation or governmental regulatory efforts. While the amount of legal action against these potentially deceptive claims has increased, no comprehensive assessment has been conducted.This article, which analyzes litigation and governmental regulatory activities, considers key factors that may influence decisions to take legal action against potentially deceptive health claims on foods and beverages, including scientific support, forum selection, selection of plaintiffs, and potential public health impact.During the last 3 decades, the prevalence of obesity among US children has increased.1 Today, one third of youths are overweight or obese, and 17% are obese.2 Childhood obesity raises numerous health concerns, including greater likelihood of cardiovascular disease risk factors, presence of pre-diabetic indicators, and psychosocial issues.3–5 Obese children are more likely to become overweight or obese adults, with attendant risks for cardiovascular disease, metabolic challenges, and certain cancers.6–9Decreasing energy intake through the ingestion of fewer calories represents one pathway to reduce childhood obesity.10 Yet, companies that advertise foods and beverages often promote energy-dense items for children (i.e., items high in sugar, fat, or calories, such as sugar-sweetened beverages or certain breakfast cereals).11,12 This may be particularly confusing for parents seeking nutritious choices for their children, since some companies use health-related claims to promote energy-dense products (e.g., “good source of vitamin C”).13By law, however, “deceptive” claims are prohibited.14 A deceptive claim is one that: (1) is likely to mislead consumers when viewed by those acting reasonably under the circumstances; and (2) contains a message directly tied to a consumer’s purchasing decision.15 Federal regulatory authority for health claims is shared by the US Food and Drug Administration (FDA), for food labeling, and the Federal Trade Commission (FTC), for food advertising.16 In addition, state attorneys general, other state-level regulators, and private individuals may take legal action against potentially deceptive health claims.17Although federal agencies such as the FDA and FTC may use varied administrative tools to address allegedly deceptive health claims on foods and beverages, litigation brought by federal or state governments or private individuals may also encourage food and beverage manufacturers to limit their risk. This litigation often relies on federal or state consumer protection or false advertising laws, which require that consumers receive product information that is truthful and not misleading. In response to threatened litigation, or to avoid future litigation, manufacturers may voluntarily remove deceptive health claims from their products.18,19Although several analyses have examined specific claims that received regulatory attention,20,21 no comprehensive assessment of these actions has been conducted. We conducted a comprehensive review of federal, state, and private litigation and governmental regulatory activities regarding potentially deceptive health claims on foods and beverages marketed to children. We identify trends in these legal actions and discuss lessons learned for policymakers, practitioners, and other stakeholders seeking to limit the untruthful or misleading marketing of foods and beverages to children.