This was the FTC's first case challenging advertising for probiotics. The FTC's complaint charged that, from fall 2008 to fall 2009, Nestlé HCN made deceptive claims in television, magazine and other print ads that the children's drink prevents upper respiratory tract infections in children, protects against colds and flu by strengthening the immune system, and reduces absences from daycare or school due to illness.
Under the settlement, Nestlé HCN has agreed to stop claiming that the drink reduces the risk of colds, flu, and other upper respiratory tract infections, unless the claim is approved by the Food and Drug Administration.
Although FDA approval of health claims generally is not required for compliance with the FTC Act, in this case, the FTC determined that requiring FDA pre-approval before Nestlé HCN makes claims that certain products prevent or reduce the risk of upper respiratory tract infections will provide clearer guidance. In turn, this will facilitate Nestlé HCN's compliance with the proposed settlement order and will make the order easier to enforce.
Nestlé HCN also agreed to stop claiming that Boost reduces 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 settlement also prohibits Nestlé HCN 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 competent and reliable scientific evidence, and bars the company from misrepresenting any tests or studies.--Karlene Lukovitz