Kraft was one of three companies at the receiving end of demand letters from CSPI director of litigation Stephen Gardner this week.
The CSPI takes issue with Crystal Light Natural Lemonade, Natural Pink Lemonade, Natural Lemon Iced Tea, and Natural Lemon Decaffeinated Iced Tea because they contain “several decidedly unnatural ingredients”, including artificial sweeteners aspartame and acesulfame-potassium, synthetic colors Red 40, Yellow 5, and Blue 1, maltodextrin, and the synthetic preservative butylated hydroxyanisole (BHA) - but are presented as 'natural', said Gardner.
“Crystal Light, which is almost all chemicals and almost no actual food is the last product on Earth that should be masquerading as ‘natural.’”
Kraft: We take great pride in making quality products and marketing them responsibly
However, Caroline Krajewski from Kraft Foods Group’s corporate affairs team said a California judge had recently dismissed similar allegations in a deceptive marketing lawsuit (C-12-02554-RMW) accusing Kraft of misleading consumers with the phrase ‘Natural Lemon Iced Tea’.
While the plaintiff argued the phrase would “lead a reasonable consumer to believe that the product in its entirety is ‘natural’ and not just that it contains a natural flavor”, the judge rejected this argument in a court order last summer (click here) noted Krajewski.
“We believe all of our labels comply with the law and are not misleading. In fact, a federal judge in California recently dismissed a claim against these Crystal Light labels and ruled that they do comply fully with FDA regulations. Our products are clearly and accurately labeled with information that is both truthful and helpful for consumers.
“At Kraft, we take great pride in making quality products and marketing them responsibly.”
Asked if he anticipated that Kraft would again argue that the natural references on its labels only refer to flavorings, not the overall product - should the CSPI file a lawsuit, Gardner told FoodNavigator-USA: “I suspect Kraft will say that as to “NATURAL LEMONADE,” for example, the “natural” only modifies the small print “flavor”—i.e., that it’s a “natural lemonade” flavor. Of course, there is no [natural] lemonade flavor, so that won’t fly.”
Meal replacements should not be marketed as snacks
The next demand letter was sent to Abbott Laboratories, which was informed it would face a lawsuit if it continued to make “deceptive and illegal claims” about its Ensure Complete Nutrition Shake and Ensure Muscle Health Shake.
These were designed as meal-replacements to be used under medical supervision, but were now marketed to the general public as a twice daily “habit that could help you feel better,” as “part of a healthy diet", alleged Gardner.
Abbott also misleads consumers about the omega-3s in the shakes, comparing them to a salmon steak, despite the fact that they contain the short-chain omega-3 fatty acid ALA and not the long-chain omega-3 fatty acids EPA and DHA found in salmon, he argued.
Meanwhile, claims that the shakes support heart health and immune function, ‘rebuild muscle strength’ or ‘protect, preserve and promote muscle health’ are not legal, argued Gardner.
However, a spokesperson for Abbott Nutrition told FoodNavigator-USA that, "We stand behind the science and the claims supporting our Ensure brand."
Illegal disease-prevention claims
In a third demand letter to Smart Balance (part of Boulder Brands), Gardner said the claim that Smart Balance Blended Butter Sticks could ‘help block cholesterol’ because they contained plant sterol esters was illegal as it implied they could prevent or treat disease.
And while there is an FDA-approved health claim for foods containing plant sterol esters, the butter sticks in question did not meet the qualifying criteria because they did not contain enough sterols and had too much saturated fat, he alleged.
A spokesperson for the company did not respond to requests for comment.
Gardner: If the company contacts us, we’ll talk
Asked whether he had had prior contact with the companies before sending the formal demand letters, Gardner said: “As a general rule (and there might be exceptions), if we send a demand letter, we have not talked to the company about the issue at all.”
Asked how long he would wait until filing complaints should the firms refuse to engage, he said: “I don’t really have a typical time. At a minimum, state pre-suit notice laws require at least 30 advance notice. But if the company contacts us, we’ll talk and that would be likely to continue for months.
“If the company doesn’t contact us at all or refuses to make the changes demanded, then we’d file suit. But even then, the timing depends on a number of factors such as our getting co-counsel, deciding where to bring the suit, finding time to be able to file and then handle predictable motions quite quickly.”
Click here to find out more about a Feb 13 legal webinar hosted by Perrin Conferences on 'all-natural' claims on food labels moderated by FoodNavigator-USA editor Elaine Watson.