Tis the season for better-for-you food and beverage claims as brands try to capitalize on ambitious diet-related New Year’s resolutions and the promise of spring on the horizon – but are these products actually healthier or are the ambiguous comparison claims a red flag for potential enforcement or litigation?
Better-for-you claims take many forms – including the straightforward eponymous claim along with variations calling out a product is either “free from” or has “reduced” or “higher” amounts of nutrients or ingredients. Other versions may describe a product as “cleaner,” “simpler” or made with fewer preservatives or “no funky stuff.” These claims are not legally defined – which leaves them open to interpretation and litigation.
While the bell has not yet tolled for better-for-you claims the same way it has for predecessors such as “natural,” the claims have caught the attention of the BBB National Programs’ National Advertising Division and some brands have begun ruminating about whether consumers understand them and their potential impact on the competitive landscape.
In this episode of FoodNavigator-USA’s Soup-To-Nuts Podcast, NAD Vice President Laura Brett examines the potential risk better-for-you and related claims pose. She also outlines tips for making truthful, transparent and therefore safer health and nutrition claims based on cases brought to the self-regulatory platform by competitors seeking to level the playing field by stopping alleged deceptive and unfair advertising. As she explains, the area of truthfulness and transparency for advertising in digital media, including disclosures for influencers and other digital formats, is evolving – requiring markets to be increasingly vigilant of claims they make or which are made on the behalf of a brand or product.
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- Mandatory front-of-pack nutrition labeling is coming – how should brands prepare? – FDA is under pressure to require standardized science-based, front-of-pack labeling to help consumers interpret nutrition information on food products – but what will the mandate mean for packaged food brands?
Better-for-you claims’ evolving implications
Better-for-you claims are not new to NAD’s purview, according to Brett, but she notes the intensity of the division’s scrutiny of the claims has increased along with their prevalence and the emergence of entire sub-categories of food labeled as “better-for-you.” She adds, the division’s understanding of what qualifies as better-for-you claims and how consumers interpret them has also become more refined over the years.
“The National Advertising Division has been looking at better-for-you claims since 1986 – that was the oldest case that I found looking at a better-for-you claim. There was a company comparing margarine made with corn oil to margarine made with safflower oil and they were making a better-for-you claim,” recalled Brett.
She added the decision in the case – as in most better-for-you claims cases since – boiled down to the company making an implied health claim, which if not adequately supported could harm consumers physically and financially.
Consumers may spend more money on products they perceive to be healthier and may use them differently – such as eating them more frequently, she explained.
Better-for-you claims are at an ‘inflection point’
Brett warns that a sharp uptick in better-for-you claims and the emergence of entire product categories labeled as such has brought the issue to an “inflection point.” And she warns, marketers should choose increased caution rather than increased comfort.
She adds the bar for what may qualify as truly better-for-you is rising as the conversation and science around nutrition and health becomes more sophisticated and nuanced. For example, she notes, the ongoing debate about the potential dangers of ultra-processed food may make it more difficult for many packaged products to make better-for-you claims.
“When you are looking at the snack category, in particular, there is a lot of focus on highly processed foods. And if you are making a claim that a highly processed food is better for you, that might be a really difficult claim to support right now when we are just learning and science is catching up to what makes a highly processed food potentially more harmful for consumers than a non-highly processed food,” she said.
She also notes that if a product makes a better for you claim about one aspect of a product, it needs to ensure other aspects of the product do not cancel out or compromise the implied health benefit. For example, if a product claims to have half-the sugar of competitor, but then uses controversial sweeteners that could pose other health risks then the overall product is not better-for-you and would not meet the standard for support for such claims.
What is the standard of support for most better-for-you claims?
Most better-for-you claims for foods and beverages require “competent and reliable scientific evidence,” because they are almost always health claims, said Brett.
“Competent and reliable scientific evidence is a term of art in ad law, and what it generally means, per the FTC and their health claims guidance, is that the kind of evidence that usually suffices to meet that burden is clinical testing on the product,” said Brett.
How difficult it is to support better-for-you claims with “competent and reliable evidence” hinges on how specific the claim is and what is being compared. Brett explains there are plenty of better-for-you comparison claims that likely are a light lift to substantiate.
But, she reiterated, even highly-specific better-for-you claims are not reviewed in isolation. Rather the larger context in which they are made comes into play, which for a food or beverage may mean the overall product.
Qualifiers for claims – such as comparisons to the “leading competitor” – also must be “clear and conspicuous,” according to the law, but Brett says what this means is up for debate in the courts.
Generally speaking, however, she said it should either be obvious to the consumer who the leading competitor is or else the company will need to substantiate the claim to most of the competitors in the market.
What are brand’s responsibilities for influencer claims?
Brands also are responsible for any better-for-you claims made by influencers – even if the company did not expressly approve the claim or implication. As such, Brett suggests companies educate influencers about what they can and cannot say legally and the level of support needed for claims.
Influencers also need to disclose when they are working for a brand and cannot say anything the brand would not be allowed to say.
Consumers who are not remunerated by or have a relationship with a brand can say whatever they want and brands will not be held accountable, Brett added.
Other areas on NAD’s radar
While most NAD cases are self-regulatory with companies bringing complaints against competitors, the division opens 20-25% of cases on its own initiative. In the coming year, Brett said the program will evaluate not only better-for-you claims but also health and wellness claims more broadly.
In addition, the watchdog will examine how products are marketed to teens to ensure younger consumers understand when they are being marketed to and by whom, said Brett.
For more information about the types of claims on NAD’s radar and how the division decides when a claim is or isn’t supported, check out all the BBB National Programs case decision summaries case decision library or subscribe to its online archive.