Sep. 20, 2012 at 7:44 AM ET
Most of us take it for granted that food companies tell the truth about their products. But that’s not always the case. Private attorneys are taking food makers to court — to challenge health, nutrition and ingredient claims they allege to be deceptive.
They’ve already sued some industry giants, such as ConAgra Foods, Del Monte, Dole, Frito-Lay, General Mills, Heinz, Kraft, Nestle and PepsiCo.
"False advertising is stealing money from people,” said Steve Gardner with the Center for Science in the Public Interest, a consumer watchdog group. "You're just doing it with a pen rather than with a gun.”
Gardner runs the center's Litigation Project, a nonprofit law firm that represents individual consumers in these cases. He told me he’d prefer to have federal regulators police the marketplace, but he doesn’t see that happening.
“The FDA is just completely asleep at the wheel," he said. (The FDA did not respond to a request to comment on Gardner's remark.)
Gardner, a former assistant attorney general in New York and Texas, prefers to resolve complaints at the corporate level, rather than go to court. Sometimes that works. Centrum recently agreed to drop breast and colon claims on its dietary supplements.
Sometimes a company won’t budge. The Litigation Project recently demanded that Welch's remove the heart-healthy icon from its juice, spreads and fruit snacks. The center claims these products do not improve heart health and it vows to sue if Welch's does not act.
Welch's accuses the consumer watchdog group of making "misguided accusations." In a statement on its website, the company says all of its communications are "truthful, well supported by science, and easy for consumers to understand."
Is there a problem?
Food manufacturers don't see what all the fuss is about. The Grocery Manufacturers Association says its members support federal laws that require food labels to be truthful and nonmisleading.
"There is a robust regulatory system in place to ensure the proper use of claims and other symbols on food labels," wrote the grocery association's Brian Kennedy in an email to NBCNews.com. "The accuracy of this information is further supported by the ongoing commitment by food companies to communicate with consumers in a way that is clear and accurate."
Joshua Boxer, an attorney with the Mills Law Firm in San Rafael, Calif., doesn't see it that way.
“The marketplace is increasingly filled with gimmickry as companies scheme to boost their profits by ripping off consumers and making grandiose claims about their products,” he said.
Boxer worked with the Center for Science in the Public Interest to sue McNeil Nutritionals for allegedly using "false and misleading" claims to sell its Splenda Essentials.
This new — and higher-priced — line of artificial sweeteners is fortified with small amounts of antioxidants, B vitamins or fiber. According to the package, Splenda Essentials with B vitamins "helps support a healthy metabolism."
The lawsuit claims McNeil is trying to give the false impression that Splenda Essentials will help someone lose weight or provide some other health benefit.
"I think it’s disgusting that that they would try to make us believe something that isn’t true," said Barbara Bronson, one of the plaintiff's in this lawsuit.
The 71-year-old Bronson owns a hair salon in Corte Madera, Calif. She told me she used Splenda Essentials because she thought it would help her drop a few pounds.
“I bought it for the shop; I mentioned it to my clients; I told all of my friends. I was very excited about it. And then I had a friend who said it sounded a little far-fetched to have all of that in such a tiny packet.”
Michael Jacobson, executive director of the Center for Science in the Public Interest, agrees. “It’s ridiculous, but apparently profitable, to claim that spiking Splenda with vitamins or powdered fiber turns it into a magical health food,” he said.
Asked about the lawsuit, McNeil told NBCNews.com that it does not comment on pending litigation. But in an email, the company wrote, "We are studying the complaint, and stand behind our products and claims."
Attorneys on a mission
A small group of attorneys around the country has focused on the nation’s food makers. Some of these lawyers took on the tobacco industry back in the late 1990s. Now they’ve targeted food labels that they allege mislead supermarket shoppers.
“They can put whatever ingredients they want in their food products, but the law demands that they tell the truth about the product,” said Mississippi attorney Don Barrett, who recently sued some of the country’s biggest food companies. “If you misbrand it, you cannot sell it. The law is very strict about that.”
So far this year, Barrett and his colleagues have filed 30 of these lawsuits. And he told me “considerably more” are being prepared.
In one case, the court is being asked to stop the sale of ConAgra’s PAM cooking spray — marketed as a “natural” product — because of what’s not listed on the ingredient label. It says “propellant” but does not specify which gases are in the can.
The lawsuit claims the propellant is made from liquefied petroleum gas, propane, butane and isopropane. Barrett calls that “lighter fluid” and argues these unnamed propellants are not natural.
“We allege they are hiding the ingredients that by law they cannot hide,” he said
We asked ConAgra if Barrett had it right. The company responded with a statement that said “a small, non-harmful amount of gas propels the spray and quickly dissipates …” ConAgra also said PAM is “completely safe” when used as directed.
Another lawsuit challenges the labeling of Chobani Greek Yogurt. The Nutrition Facts panel on at least 18 flavors of Chobani shows the sugar content of these products, but the ingredient list does not include sugar. Instead, it says “evaporated cane juice.”
“And what is evaporated cane juice?” Barrett asked. “Sugar, it’s just plain sugar. Well that’s deceptive.”
In fact, back in 2009, the FDA issued guidelines that advised food companies they should not use the term “evaporated cane juice” because it would be “false and misleading.”
In a statement to NBCNews.com, Chobani said: "We consider any allegation that our products are mislabeled to be without merit, but we're always listening to consumers to make our products better."
Critics say Barrett and his colleagues are in this for the money. Billions of dollars in damages could be assessed if they win their cases. Barrett insists they’re doing this to “clean up” the marketplace and stop companies from breaking the law.
What do you think?
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