Nestle to settle F.T.C. advertising charges

by Keith Nunes
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WASHINIGTON — Nestle HealthCare Nutrition, Inc., a division of Nestle S.A., Vevey, Switzerland, has agreed to drop allegedly deceptive advertising claims about the health benefits of its children’s drink BOOST Kid Essentials.

A complaint filed by the U.S. Federal Trade Commission charges that from fall 2008 to fall 2009, Nestle H.C.N. made deceptive claims in television, magazine and print advertisements that BOOST Kid Essentials prevents upper respiratory tract infections in children, protects against colds and flu by strengthening the immune system, and reduces absences from day care or school due to illness.

BOOST Kid Essentials is a beverage intended for children ages 1 to 13. The product features a straw embedded with probiotics that were prominently featured in the advertisements for the products.

“Nestle’s claims that its probiotic product would prevent kids from getting sick or missing school just didn’t stand up to scrutiny,” said David Vladeck, director of the F.T.C.’s Bureau of Consumer Protection.

The advertisements challenged by the F.T.C. featured the drink’s probiotic straw. In one advertisement, the straw jumped out of the drink box, formed a protective barrier around a girl as she encountered a sneezing boy, and then formed steps allowing her to reach a basketball hoop and shoot a ball into the net. The advertisements falsely claimed that BOOST Kid Essentials is clinically shown to reduce illness in children, to protect from colds and flu by strengthening the immune system, and to help children up to age 13 recover more quickly from diarrhea, the F.T.C. charged.

“Nestlé HealthCare Nutrition, Inc. is pleased to have reached a mutually agreeable settlement with the United States Federal Trade Commission concerning its advertising campaign for BOOST Kid Essentials Nutritionally Complete Drink that ended in Fall 2009,” Nestle said in a statement. “The settlement agreement, announced by the F.T.C. on July 14, 2010, provides clarity regarding new advertising standards applicable to health benefit claims for BOOST Kid Essentials and similar products – standards that are consistent with Nestlé HealthCare Nutrition’s current product development efforts and its desire to continue to serve the needs of its consumers.

“The agreement with the F.T.C. – which involves no admission of wrongdoing or monetary payment – will allow Nestlé HealthCare Nutrition to continue to advertise BOOST Kid Essentials Nutritionally Complete Drink as providing complete nutrition for kids ages 1 to 13.”

Under the proposed settlement, Nestle H.C.N. has agreed to stop claiming BOOST Kid Essentials will reduce the risk of colds, flu and other upper respiratory tract infections unless the claim is approved by the Food and Drug Administration. Although F.D.A. approval of health claims generally is not required for compliance with the F.T.C. Act, in this case, the F.T.C. determined that requiring F.D.A. pre-approval before Nestle H.C.N. makes claims that certain products prevent or reduce the risk of upper respiratory tract infections will provide clearer guidance.

Nestle H.C.N. also has agreed to stop claiming that BOOST will reduce children’s sick-day absences and the duration of acute diarrhea in children up to age 13, unless the claims are true and backed by at least two well-designed human clinical studies. The F.T.C.’s proposed settlement also prohibits Nestle H.C.N. from making any claims about the health benefits, performance, or efficacy of any probiotic and nutrition drinks that it sells at retail, unless the claims are true and backed by scientific evidence.

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