Major Changes Coming to Nutrition Facts and Supplement Facts Labels Near You

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FDA finalizes rule to revise Nutrition Facts panels for foods and Supplement Facts panels for Dietary Supplements

On May 20, 2016, the U.S. Food and Drug Administration (FDA or the Agency) issued a final rule (Rule) that overhauls the design and content of nutrition labeling for foods and dietary supplements (known as the Nutrition Facts label for packaged foods and the Supplement Facts label for dietary supplements). These changes are largely consistent with those proposed by the Agency in 2014. Continue Reading

FDA Reverses Stance on Kind Snack Bar Labels and Re-Evaluates Its “Healthy” Standard

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The U.S. Food and Drug Administration announced this week that Kind LLC may label its snack bars as “healthy,” sort of. In 2015, the FDA warned Kind that several of its products were misbranded as “healthy,” and that such labeling falsely claimed that the snacks were low-fat or rich in anti-oxidants, among other things. The FDA’s letter to Kind threatened regulatory action if this and other alleged violations were not corrected. However, the FDA recently rescinded this demand and is now permitting Kind to label its snack bars “healthy,” so long as it is clearly part of the company’s philosophy and not part of a nutritional statement.

According to the Wall Street Journal, the FDA is also planning on re-evaluating its regulations concerning nutrient content claims, and plans to ask the public for comment on what should constitute the modern definition of “healthy” to match up to the current recommendations about health and eating habits.

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Coffee Talk with Lee Peeler: Self-Regulatory Process and Key Changes to NAD’s Procedures

Lee Peeler has had a remarkable career. Currently he is President of the Advertising Self-Regulatory Council, which among other things oversees the NAD and CARU. Prior to that he was Deputy Director of the FTC’s Consumer Protection Bureau and an Associate Director of its Advertising Practices Division. And to top it all off, anyone who knows Lee knows that he’s an incredibly nice guy. (We thought that even when he was recommending, nicely, that the FTC sue our clients.) So it was a pleasure to be able to catch up with Lee and get his thoughts first on the self-regulatory process and what he views as the key recent changes to the NAD’s procedures.

Soup Competitors Stir the Pot on Local Sourcing Claims at NAD

By Cajsa Lilliehook from Portland (Chicken Noodle Soup) [CC BY-SA 2.0], via Wikimedia Commons

With the popularity of the eating local movement, it’s no wonder food companies want to promote when they do business with local farmers or have small batch local operations. NAD recently provided some guardrails for such claims in a case involving General Mills. Its Progresso Soups tout “Vineland, New Jersey: Home of Progresso” and “This [Vineland] i‎s where the great produce that goes into the soups is sourced.” Campbell’s asserted the claims implied that all or most of the Progresso ingredients were sourced locally in Vineland and that Progresso is a small company from rural New Jersey. Campbell’s said Progresso was owned by food giant General Mills, headquartered in Minneapolis, and the team running Progresso is in Minneapolis.

The soups identify General Mills and Minneapolis as the name and place of the business of the manufacturer under FDA regs and direct consumer inquiries to Minneapolis. Further, the challenger asserted that while some soups are made in Vineland, New Jersey, there are other facilities for soup making in Hannibal, Missouri and that non-soup Progresso products are made throughout the United States and Canada. (And while Missouri no doubt has some fine quality produce, something is lacking in touting Hannibal rather than Vineland as Progresso’s home base. Certainly for soup with fava beans.)

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How to Avoid #Translation Fails in Your Next Marketing Campaign

It is no surprise that each year more advertisers are turning to bilingual and foreign language advertising to market their products. According to U.S. census data, over 55 million Americans speak a language other than English in the home. Spanish language advertising, in particular, has increased over the years, in response to the growth of the Spanish-speaking audience: Hispanics constituted 17 percent of the nation’s total population and had a current spending power of about $1.4 trillion as of 2014.

In light of these marketing and advertising trends, we thought it would be helpful to publish a quick list of tips to remember when disseminating an advertising message in a foreign language.  Continue Reading

Coffee Talk with Elaine Kolish: CFBAI Director Looks Back and Forward

Our friend Elaine Kolish, Director of the Children’s Food and Beverage Advertising Initiative is stepping down shortly after a remarkable ten year run. So we thought this was a great opportunity to sit down with Elaine and look back over her accomplishments, what might be coming next for the organization, and lessons that companies in other industries might draw from the CFBAI.

Revisiting Telemarketing Record Retention Requirements

The Federal Trade Commission (FTC) is seeking comment on the disclosure, recordkeeping, and reporting requirements of its Telemarketing Sales Rule (TSR). The deadline for public comment is June 13, 2016.

The FTC’s recent notice invites public comments on four issues:

  1. Whether the TSR’s disclosure, recordkeeping, and reporting requirements are necessary, and whether the resulting information is useful;
  2. The accuracy of the FTC’s estimates regarding the burden that such information collection requirements impose on covered entities;
  3. How the FTC can improve the quality, utility, and clarity of the disclosure requirements; and
  4. How to minimize the burden of providing the required information to consumers.

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Walgreens’ Settlement—Beware How you Describe Your Deals

The Office of the New York Attorney General entered into a $500,000 settlement with Walgreens last week over false pricing information in its Walgreens and Duane Reade stores in New York.

By kolijoriverhouse [CC BY-SA 4.0], via Wikimedia Commons

The New York Attorney General began investigating Walgreens’ advertising and pricing practices in early 2014. Investigators visited a sampling of Walgreens and Duane Reade New York stores and reportedly found a series of pricing errors and misleading advertisements in violation of New York law. Some of the alleged practices are run-of-the-mill mistakes—price tags displaying expired pricing information and consumers paying more at the register than the advertised price.

Other alleged practices involved overhyping deals. For example, some products were advertised as “Smart Buy” or “Great Buy” when in reality the advertised price was no different than the original selling price. In other instances items were advertised as “Last Chance” or “Clearance” implying the items would be on sale for only a limited time when in fact that was not case. Finally, the complaint alleges that some of the advertisements implied that consumers would receive an immediate cash discount on certain items by stating “like paying . . .” or “like buying . . .” when the discount could only be applied to future purchases and came with conditions.

The settlement terms themselves are also worth noting. Walgreens agreed to conduct employee training and to submit to internal and external compliance audits.

So in an era when it is increasingly harder to rise above the clutter, make sure your marketers steer clear of overdramatizing deals.

Don’t Import Compliance Troubles—New Supply Chain Law Goes into Effect

In March, a new federal law quietly went into effect that places additional pressure on importers to develop compliance systems for their supply chains, including identification of items potentially made with forced labor. The Trade Facilitation and Trade Enforcement Act of 2015 (Trade Act) prohibits the import into the United States of goods, wares, articles, and merchandise mined, produced, or manufactured in a foreign country by convict, forced, or indentured labor.

The new law comes at a time when federal and state regulators are turning their focus to supply chain management as a way to combat forced labor overseas. At the National Association of Attorneys General (NAAG) 2016 Winter Meeting, for example, Attorney General Loretta Lynch gave a speech noting that the Department of Justice would prioritize human trafficking for law enforcement at all levels. Susan Coppedge, Ambassador-at-Large to Monitor and Combat Trafficking in Persons and Senior Advisor to the Secretary of State, also presented to the AGs at NAAG. Given this scrutiny, any company—regardless of industry—that imports goods from overseas should review its supply chain management policies to ensure that they are appropriately tailored to address this issue.

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It’s Not Nice to Fool Mother Nature: FTC Takes Aim at “All Natural” Claims

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While the Food and Drug Administration (FDA) is still considering whether to issue guidance over the use of the term “natural” in food products, the Federal Trade Commission (FTC) is steamrolling ahead this week with a flurry of settlements and a complaint over deceptive use of the terms “all natural” and “100% natural” in the advertising of sunscreens, shampoos, and other styling/beauty products. However, while there have been vigorous debates in the courts and elsewhere over whether natural ingredients must be non-GMO, and whether certain highly processed natural ingredients such as high fructose corn syrup qualify as “natural,” the FTC’s cases went after some low-hanging, not very natural, fruit. The FTC’s four proposed settlements and new administrative complaint over the use of the phrase “all natural” all involved products that appear to contain clearly synthetic ingredients. (In this regard the FTC’s actions parallel the warning letter FDA issued to Alexis Foods and their frozen potato product.)

The four proposed settlements are with Trans-India Products, Erickson Marketing Group, ABS Consumer Products, and Beyond Coastal.

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