Food giant Nestlé S.A. today settled Federal Trade Commission charges that it made deceptive claims in advertising a children's nutritional drink.
In the agency's first-ever case involving probiotics - live, beneficial bacteria - the FTC alleged that Nestlé falsely claimed that BOOST Kid Essentials 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.
The drink, which is made by Nestlé subsidiary Nestlé HealthCare Nutrition, Inc., comes with a straw embedded with probiotics. In one ad, Nestlé showed the straw forming a protective barrier around a girl as she encountered a sneezing boy, and then the straw forms steps allowing her to reach a basketball hoop and shoot a ball into the net.
According to the FTC, the ads falsely claimed that BOOST Kid Essentials is clinically shown to reduce illness in children.
Such claims are evaluated by the Food & Drug Administration when they appear on a product label. But when they are made in advertisements, they fall under the FTC Act.
Last month, Kellogg Co. ran afoul of the FTC for claiming that Rice Krispies cereal "now helps support your child's immunity."
As part of the settlement agreement with Nestlé, the company agreed not to make any claims about the drink reducing the risk of colds or flu unless it receives FDA approval to do so.
Nestlé also agreed to stop claiming that BOOST will reduce children's sick-day absences and the duration of acute diarrhea, unless the claims are backed by at least two well-designed human clinical studies.
"Nestlé's claims that its probiotic product would prevent kids from getting sick or missing school just didn't stand up to scrutiny," said David Vladeck, director of the FTC's Bureau of Consumer Protection in a statement. "Parents want to do right by their kids, and the FTC is helping them by monitoring ads and stopping those that are deceptive."
Nestlé was represented by its general counsel Kevin Goldberg, and Lewis Rose and Dana Rosenfeld of Kelly Drye & Warren in Washington.
FTC lawyers include Karen Mandel and Mary Engle.