Nestle had previously claimed in its BOOST advertising, that the nutrition drink would boost children’s immune systems, prevent illness, and even speed up the recovery of certain symptoms, like diarrhea. The website, and advertising material now states, “Many countries worldwide have a tradition of introducing live active cultures (bacteria) to infants and children early in life, in fermented foods, such as yogurt. In adequate amounts [probiotics] provide specific health benefits to the host.”
This case marks the FTC’s first foray into health claims based upon probiotics and suggests this is a new area of concern for the regulatory agency.
Practice Note: While the US has only recently been looking at probiotic food claims, the European Food Safety Authority has been heavily regulating the industry for the better part of a year. According to published reports, the EFSA has rejected 80% of the advertising claims involving probiotics. Attorneys should advise clients to be careful about health benefit claims under the current administration.