In the last few weeks, multiple class-action lawsuits have been filed against KIND snack bars alleging they're not quite as healthy — the nirvana of healthful tastiness — as the company claims. The bars themselves are covered in statements marking them as gluten- and GMO-free as well as "all natural." Its slogan — "ingredients you can see and pronounce" — implies a healthfulness that many consumers feel processed foods lack. Yet the Nutrition Facts label, tucked away on the back of the package, tells a different story: One almond-and-coconut bar contains 18 percent of the recommended daily fat intake and 25 percent of saturated fat, in addition to three teaspoons of sugar. All this in a snack bar that contains less than nine percent of the recommended daily calories.
Between 2011 and 2014, more than 150 class-action lawsuits were filed because of food-labeling practices.
One lawsuit recently filed in California alleges that Kind bars are "misbranded in violation of the Federal Food, Drug and Cosmetic Act" since they are sourced with GMO crops, use highly processed foods, and are not actually legally "healthy" according to FDA guidelines. On March 17, the FDA sent a warning letter to Kind, telling the company its products were misbranded: The "labels bear nutrient content claims, but the products do not meet the requirements to make such claims."
Yet Kind is hardly the first to print misleading claims on its packages. In 2009, Kellogg was forced to pull a health claim stating that its Frosted Mini-Wheats were "clinically shown to improve kids' attentiveness by nearly 20 percent." Just last month, the Academy of Nutrition and Dietetics got into PR hot water after Kraft put an AND-sponsored "Kids Eat Right" logo on its American "cheese product." While the Academy maintains that it was never meant to be an endorsement, consumers often think otherwise. Between 2011 and 2014, more than 150 class-action lawsuits were filed because of food labeling practices.
Why is it so difficult to choose a healthy food?
Health-conscious shoppers are often attracted to bright labels announcing that a product is "healthy" or a "good source of calcium." (A 2010 study of package labels found that nutritional marketing is used most often on "products high in saturated fat, sodium, and/or sugar" as well as foods marketed toward children.) Often referred to as nutrition marketing, the practice is eerily effective. Though there's some dissent over whether the practice causes harm to consumers, a 2005 report by the Nutrition Foundation found that health claims "increase consumers' expectations about the healthiness of a product and produce more positive attitudes toward its nutritional value." Unfortunately, this so-called "health halo" resulting from beneficial nutritional claims remains even when paired with warning statements (such as a product being high in saturated fats). Once we think a product is healthy, we tend to ignore evidence to the contrary.
Depending on its size, a supermarket carries between 15,000 and 60,000 items on its shelves, and the average time spent walking up and down the aisles of the local supermarket, according to the Time Use Institute, is only 41 minutes. The way our brains can process 60,000 pieces of information in less than an hour is by making almost split-second decisions about what to put in our carts and what to leave behind. One 2011 study found that consumers make choices in as little as one-third of a second. That means that it takes more time to walk through the grocery store than for you to decide what you actually want to eat.
Though many of us grew up with Nutrition Facts labels and even claims like "soluble fiber in oatmeal helps reduce cholesterol," they're both fairly new additions to the grocery aisle. It wasn’t until the 1967 Fair Package Labeling Act that the net quantity of packaged foods had to be clearly and accurately stated. (Finally, customers could look at two identical cereal boxes and see that one had 18 ounces of food inside and the other only 15.) But it took another 23 years before the 1990 Nutrition Labeling and Education Act required foods to have Nutrition Facts labels. The act also standardized serving sizes and terms like "low-fat." Since the NLEA also allowed dietary supplement manufacturers to use structure-function (referring to a structure or function of the human body like bones, as opposed to what affects the bones, like "osteoporosis"), health claims, food manufacturers argued that they, too, should be able to do the same.
Unlike the makers of dietary supplements, food manufacturers who use health claims don't have to print the standard disclaimer that claims "[have] been evaluated by the Food and Drug Administration. This product is not intended to diagnose, treat, cure, or prevent any disease." That said, if a food is high in sodium but wants to market itself as "a good source of fiber," it needs to have a disclosure statement (something like "See nutrition information for saturated fat content") on the front of the box, too.
Unfortunately, these warnings do little to dissuade consumers. And as long as foods don’t cross the line into a "disease statement" (implying that the fiber in oatmeal can treat — rather than "help reduce" — high cholesterol, for example), manufacturers can use these claims without alerting the FDA or gaining approval ahead of time.
That said, some products that have taken this freedom too far. In 2009, Kellogg discontinued an immunity claim printed on boxes of Rice Krispies cereal. Used even on Cocoa Krispies, the box not only claimed that the cereal contained "25 percent of the daily value of antioxidants and nutrients" but that it also helped "support your child’s immunity." Since structure-function claims can only be in reference to a structure or function of the human body, Kellogg likely could have gotten away with replacing "immunity" with "immune system." As written, it sounded too much like the cereal was meant to treat a disease.
What kind of claims are there?
In addition to structure-function claims, companies use information about ingredients ("made with real fruit"), FDA regulated terms like "good source of," and third-party labels like the American Heart Association’s (AHA) Heart Check label, to draw health-conscious consumers into buying their product. These third-party labels run the gauntlet from transparency to secrecy. One of the oldest, the Heart-Check label, was established in January 1995. According to Dr. Rachel Johnson, professor of nutrition at the University of Vermont and a spokesperson for the AHA, "72 million U.S. adults — or 30 percent of the population — say they always or usually use the Heart-Check label." Though the Heart-Check label has gotten flack in the past for endorsing products high in sugar, the American Heart Association recently revised its guidelines to fit with the current dietary advice.
Then there are proprietary, algorithm-based health symbols. Often used by grocery chains, the reasons why some products can have a "Guiding Star" symbol (used by the Hannaford grocery chain) or the NuVal system, which gives products a score between 1-100, are shrouded in secrecy.
Proprietary, algorithm-based health labels, found on many grocery-store labels, are often shrouded in secrecy.
Another popular symbol, the Whole Grain Stamp, is sponsored by the Whole Grains Council. Kelly Toups, its program manager, says that the logo was introduced "a week after the 2005 Dietary Guidelines were released," piggybacking on the government recommendation for consumers to get at least half of their grain consumption from whole grains. Today the stamp is on more than 10,000 different products in 44 countries. Some consumer groups complain that products using whole and non-whole grain can still use the logo. While there is a 100% Whole Grain Stamp (which requires products contain 16 grams of whole grains per serving), the other stamp only requires eight grams per serving of whole grains, regardless of other ingredients.
Is it enough to follow the letter of the law?
Even with wording that follows FDA guidelines, companies may be doing less to educate consumers and more to lead them astray. Congress became invested enough to create a committee made from members of the Center for Disease Control, Institute of Medicine, and FDA, and a 2010 report published by that committee highlighted a number of issues with FOP labeling.
Some of the problems: The criteria for categories like "low-fat" and "low-calorie) exclude healthy foods like peanut butter. Fortified foods (those with added nutrients) may have more nutrients but be less healthy overall. And though fortification of foods like milk (adding vitamin D) or salt (adding iodine) can reduce diet-related illnesses, some foods take the practice too far. Breakfast cereals in particular are egregious fortifiers. In 2014, the Environmental Working Group published a report listing potential health effects of consuming too much vitamin A, niacin, and zinc through a diet heavy in fortified foods.
Even the FDA has recognized that "random fortification of foods could result in over- or under-fortification in consumer diets and create nutrient imbalances in the food supply." Luckily, there is a clause in the fortification rules — sometimes referred to as the "jelly bean rule" — that prohibits food manufacturers from adding nutrients to junk foods, fresh whole foods, candy, and carbonated beverages.
Dr. Ellen Wartella, chair of the 2010 committee that studied FOP labels, doesn’t believe things have changed in the marketplace since the study took place five years ago. "We were told work on FOP would come after the revision of the Nutrition Facts panel and my understanding is that that’s still going on," she says. Wartella mentions that when the Nutrition Facts panel first appeared on food labels in the 1990s, a public education campaign went along with it. "When that was going on, there was a relatively high use of the Nutrition Facts panel," she says. Now people have tossed it aside in favor of the easy-to-read information placed on the front of the box. Wartella adds, "There’s so much information on the front of the pack that there’s sometimes difficulty discerning the most important information."
Reflecting on the committee recommendations, Wartella says, "We wanted to harmonize or coordinate the front-of-pack info with the Nutrition Facts panel." Hopefully the edit would not only present clearer information to consumers, but also increase the likelihood that they’d turn the package around.
Unless consumers are educated enough to know the nuances of "good source of" and "healthy," the various rating systems, and fortification versus naturally occurring nutrients, the melee of the grocery aisle is likely to continue. While occasional Kind bars may get called out for abusing the privilege, it doesn’t mean those following the rules are less confusing to consumers.