BEFORE THE FEDERAL TRADE COMMISSION,
UNITED STATES OF AMERICA
In Re: The Quaker Oats Company
Docket No.
PETITION TO PROHIBIT MISLEADING ADVERTISING
Submitted by the Center for Science in the Public Interest
April 25, 1996
Michael F. Jacobson, Ph.D.
Executive Director
1875 Connecticut Ave., NW
Suite 300
Washington, DC 20009-5728
202/332-9110
--------------------------------------------------------------------------------
April 25, 1996
Office of the Secretary
Federal Trade Commission
6th and Pennsylvania Avenues, N.W.
Washington, D.C. 20580
Pursuant to Section 4(d) of the Administrative Procedure Act, 5 U.S.C. 553(e), and 16 C.F.R. 2.1, the Center for Science in the Public Interest (CSPI) requests that the Federal Trade Commission (FTC) prohibit misleading advertising by the Quaker Oats Company.
CSPI is a non-profit consumer organization, supported by over 750,000 members, that has worked since 1971 to improve national health policies. We have been especially concerned about the effect of food advertising on consumer health. We contend that advertising by the Quaker Oats Company for Quaker Oatmeal is misleading, as defined by Sections 12 and 15 of the Federal Trade Commission Act (FTC Act), and is therefore deceptive in violation of Section 5 of the FTC Act.
I. INTRODUCTION
The Quaker Oats Company has run television advertisements that make express health claims concerning the benefits of consuming Quaker Oatmeal. These ads misleadingly portray Quaker Oatmeal as a "magic bullet" in the fight against heart disease by exaggerating the contribution that Quaker Oatmeal can make to lowering serum cholesterol levels.
The TV ads first appeared last fall, apparently in anticipation of an FDA proposed rule that would permit health claims for oatmeal. The advertising campaign, however, is inconsistent with the FDA proposed rule that was formally issued on January 4, 1996.
The Commission should prohibit health claims that misinform and confuse consumers. Such action is necessary to prevent the dissemination of nutritional misinformation, as well as to establish a level playing field so that responsible and informative health claims are encouraged. If the Commission fails to act, consumers will become increasingly disillusioned with health claims, and the opportunity to utilize advertising to present non-misleading health information will be squandered.
II. FACTUAL GROUNDS
A nationally broadcast television advertisement for Quaker Oatmeal states: "Recent clinical studies have found that eating delicious Quaker Oatmeal can increase your chances of bowling a perfect game. That's because a diet low in saturated fat and high in sources of fiber, including Quaker Oatmeal, may lower cholesterol, and that may help reduce the risk of heart disease" (emphasis added).
This advertisement is misleading for two reasons. First, the advertisement misleadingly implies that Quaker Oatmeal is superior to other brands of oatmeal in reducing the risk of heart disease. The repeated mention of the association between Quaker Oatmeal and significant health benefits implies that Quaker Oatmeal, rather than oatmeal in general (as well as other foods high in soluble fiber), may help lower cholesterol and reduce the risk of heart disease.
Second, the ads misleadingly imply that one can obtain significant health benefits by eating customary servings of Quaker oatmeal. In fact, one must eat abnormally large servings of oatmeal to achieve the health benefits promised in the ad. The FDA has stated that for oatmeal to significantly reduce one's cholesterol level, one must eat 60 grams of oatmeal every day, the equivalent of three servings of instant oatmeal or 1 cups of cooked oatmeal. However, the median serving size of oatmeal is 40 grams. The Quaker commercials misleadingly imply that consumers can reduce their risk of heart disease by eating ordinary amounts of oatmeal, when in fact larger amounts need to be consumed in order to derive any possible health benefit from eating this product alone.
Furthermore, the TV ads imply that consumer can obtain significant health benefits by eating oatmeal on an ordinary, i.e. occasional basis. In fact, consumers would have to eat large portions of oatmeal every day for many years in order to improve their health. Although reducing serum cholesterol lowers the risk of heart disease, reduction in the risk of heart disease only occurs if the reduction in serum cholesterol lasts long enough to have an impact on atherosclerosis, which takes years or even decades to achieve. The net impression of the Quaker TV ads, however, is that one can greatly improve one's health by eating oatmeal on an ordinary basis.
In brief, it is misleading to imply that Quaker Oatmeal, rather than oatmeal in general, may help lower cholesterol and reduce the risk of heart disease, and also to imply that consumers can obtain significant health benefits from eating typical portions of oat meal on an occasional basis when in fact health benefits can be obtained only by eating abnormally large portions on a daily basis for many years.
III. LEGAL GROUNDS
The health claims in Quaker's television ads contain material representations that are likely to mislead reasonable consumers. Such advertising is misleading under Sections 12 and 15 of the FTC Act, and Quaker's dissemination of these advertisements is a deceptive act or practice under Section 5 of the FTC Act.
A. Quaker's TV advertisement makes implied representations that are likely to mislead reasonable consumers.
1. The ad is likely to lead reasonable consumers to believe that Quaker Oatmeal provides unique health benefits.
The advertisement begins by stating that "[r]ecent clinical studies have found that eating delicious Quaker Oatmeal can increase your chances of bowling a perfect game." The ad then explicitly states that "a diet low in saturated fat and high in sources of fiber, including Quaker Oatmeal, may lower cholesterol and that may help reduce the risk of heart disease, so you can be bowling for a long time to come" (emphasis added). The ad concludes: "And to bowl a perfect game, you're gonna need to. Quaker Oatmeal."
The net impression of these statements is that Quaker Oatmeal provides unique health benefits. Quaker lacks a reasonable basis for the implied claim that Quaker Oatmeal, as opposed to oatmeal in general, can play a role in lowering cholesterol levels and reducing the risk of heart disease. Although studies referred to in the ad were funded by the Quaker Oats Company and involved the consumption of Quaker Oatmeal, they do not establish that Quaker Oatmeal itself has any special nutritional properties that make it superior over other (sometimes less costly) brands of oatmeal in lowering cholesterol and reducing the risk of heart disease.
2. The ad is likely to lead reasonable consumers to believe that consuming typical portions of Quaker Oatmeal on an ordinary, i.e., occasional, basis can reduce the risk of heart disease.
Another net impression of this ad is that consumption of customarily consumed portions of Quaker Oatmeal on an ordinary, i.e., occasional, basis can significantly lower cholesterol and reduce the risk of heart disease. Quaker also lacks a reasonable basis to substantiate this implied representation.
According to the FDA, a person would need to consume 60 grams of oatmeal every day in order to significantly lower cholesterol and reduce the risk of heart disease. Yet the average daily intake of oatmeal is 43 grams. Quaker's ad implies that consuming typical portions of Quaker Oatmeal on an ordinary, i.e., occasional, basis can lower serum cholesterol and reduce the risk of heart disease when in fact consumers would have to eat significantly larger portions of oatmeal on a regular basis for many years to derive the health benefits presented in the TV ad.
To be considered reasonable, these interpretations of the ad need not be "the only one
." It is enough that these interpretations are reasonable to "at least some consumers within the mainstream" (i.e., "persons who would be average of ordinary members of the adult population"
. As the Commission observed in Thompson Medical Co.:
n considering the net impression of an advertisement, we do not require that all consumers reading or viewing it be sophisticated experts in interpreting the nuances of the English language. Absent reason to conclude differently, we presume that advertisements are directed at ordinary members of the adult population who, as such, have a range of abilities. We look at how such individuals actually interpret advertisements in real-life situation [sic] not at how they would if they had sufficient time and incentives attentively to review the ads so as to come up with the most semantically correct interpretation of them. To do this, we need to evaluate the ads' net impressions on consumers.
Thus, it does not matter that some particularly vigilant consumers may suspect that this claim applies to any oatmeal -- not just Quaker Oatmeal -- or that only by consuming large servings of oatmeal on a daily basis for many years can they significantly lower cholesterol level and reduce the risk of heart disease.
Furthermore, the implied misrepresentations in this ad cannot be remedied by disclosing that to significantly lower serum cholesterol levels and reduce the risk of heart disease, one must consume abnormally large portions of oatmeal every day for the rest of one's life. Such disclosures are insufficient to remedy the deception because it is unreasonable to expect consumers to consume oatmeal in such quantities. Hence, the misleading nature of such claims cannot be remedied by disclosing this information.
B. Quaker's misrepresentations are material.
Quaker's representations that consumption of normal portions of Quaker Oatmeal on an ordinary basis can lower cholesterol and reduce the risk of heart disease is material because it constitutes the primary selling point of Quaker's advertisements. The Commission and the courts assume that matters that advertisers consider important enough to highlight are also material to consumers: "In the absence of factors that would distort the decision to advertise, we may assume the willingness of a business to promote its products reflects a belief that consumers are interested in the advertising."
Quaker's misrepresentations may also be presumed to be material because they involve the effect of oatmeal on health, a subject that concerns reasonable consumers. Because a product's claimed effect on health or safety is inherently "of great significance to consumers," the Commission should presume that Quaker's claims are material.
Quaker's health claims also constitute information that is likely to affect reasonable consumers' choices to their detriment. Quaker thus violates Section 5 of the FTC Act by misrepresenting matters that materially affect consumers' decisions about what to buy.
IV. ECONOMIC AND POLICY CONSIDERATIONS
A. Quaker's advertising claim is not consistent with the FDA's proposed rule.
The Commission has stated in its Enforcement Policy Statement on Food Advertising that it will evaluate health claims in advertising based in part on actions taken by the FDA regarding the use of such claims on product labels. The FDA recently proposed a rule authorizing the use of health claims on the association between oat products and reduced risk of coronary heart disease on food labels and labeling.
The health claim in the Quaker advertisement is not consistent with the FDA's proposed rule. First, although the proposed rule would permit health claims for specific foodstuffs, i.e., oat bran and oatmeal, it would not permit health claims for a specific brand of food, such as Quaker Oatmeal.
Second, the FDA's proposed rule would require health claims to state that a reduced risk of heart disease is particularly evident "when these foods are consumed as part of a diet that is low in saturated fat and cholesterol." The Quaker advertisement, however, does not mention that one's diet must also be low in cholesterol, a significant risk factor for heart disease, to achieve any health benefits.
Interestingly, Quaker more recently ran print advertisements in several major newspapers as part of an advocacy campaign to push for approval of the FDA proposed rule. In these ads, health claims were made that were consistent with the FDA's proposal. The print ad stated:
Diets high in oatmeal and low in saturated fat and cholesterol may reduce the risk of heart disease....Choosing a diet that is low in saturated fat and cholesterol and includes plenty of fruits, grains and vegetables may help lower your risk of heart disease. Other healthy steps to take include watching your weight and exercising regularly. And, or course, if you have elevated cholesterol levels, consult your physician.
It is quite telling that advertisements run as part of a political advocacy campaign are fully consistent with the FDA's proposed rule -- indeed, go beyond the requirements of the FDA proposal -- while television advertisements aimed directly at consumers present Quaker Oatmeal as a "magic bullet."
B. Quaker's advertising claim imposes substantial costs on consumers.
Consumers are increasingly aware of expert opinion linking diet to high levels of serum cholesterol and cardiovascular disease. The large majority of consumers acknowledge the importance of nutrition on long-term health and more than half have changed their diet specifically because of health concerns.
Many consumers rely on advertising as a source of information about what to eat; the majority believe that advertising that promotes the health benefits of different food products is at least somewhat believable. Aware of these trends, Quaker began an advertising campaign that exaggerates the value of its oatmeal in meeting some of the public's top nutritional concerns. The misleading claims in these advertisements may lead to a potentially injurious over-reliance on eating typical portions of Quaker Oatmeal on an occasional basis as a means of reducing blood cholesterol levels and reducing one's risk of heart disease.
These advertisements also threaten more generally to endanger consumer welfare. If the Commission does not aggressively attack misleading health claims, they may proliferate to the point that they clutter the market and diminish the informative value of legitimate health claims. In such an environment, honest advertisers may stop making truly informative messages, consumer cynicism about nutrition and health will increase, and consumers' incentives to change their diets will diminish. Consumers cannot afford to have this important field of food advertising debased in this manner.
C. Commission enforcement action will not discourage advertisers from making truthful, non-misleading health claims.
Commission action on this matter will not deter advertising that conveys important, truthful, substantiated, and non-misleading health information. The Commission would neither prohibit Quaker from making truthful, non-misleading health claims for oatmeal nor raise any possibility of "suppressing useful claims" by Quaker or other advertisers. In fact, Quaker has made FDA-approved health claims in advertising for many years. Thus, no countervailing informational benefit to consumers would be sacrificed by prohibiting Quaker's claims about lowering cholesterol or reducing heart attack risk. So long as Quaker does not make these misleading statements, the company can continue providing truthful, useful information in advertisements concerning the relationship between diet and heart disease.
D. Additional policy considerations warrant an enforcement action.
This is not a situation where, as a matter of policy, the Commission should hesitate to issue a complaint despite the deception, on grounds that the product is inexpensive, frequently purchased, and can easily be evaluated by reasonable consumers. Although oatmeal is relatively inexpensive and may be frequently purchased, Quaker's advertising claims cannot easily be evaluated by consumers themselves.
Nor is this a situation in which the Commission should rely on comparative advertising to correct misconceptions created by the ads. First, consumers should not have to rely on Quaker's competitors to explain why the ads are deceptive. Consumers should not be burdened with separating truth from fiction among conflicting, confusing commercial claims in such a vital and important area as disease prevention.
Second, Quaker's claims are unlikely to be effectively countered by competitors. Rather, manufacturers of competing oatmeal might prefer to "free ride" on Quaker's deceptive claims on the health benefits oatmeal can provide.
Third, comparative advertising would carry higher costs and be less fairly distributed than a Commission enforcement action. A comparative advertising campaign sufficient to correct consumers' misconceptions caused by Quaker's ads surely would cost almost tens of millions of dollars. The costs would fall on Quaker's competitors, who would have to either sacrifice profits or try to pass the costs on in the form of higher prices to consumers. In contrast, a Commission enforcement action would represent only a fraction of the cost of a nationwide comparative advertising campaign. Such costs may be more difficult to pass on to consumers than typical advertising expenditures. Thus, the most economically efficient, equitable solution would be for the Commission to formally prohibit the offending claims and to order Quaker itself to undertake appropriate corrective measures.
V. CONCLUSION
For the foregoing reasons, we request that the Commission: (1) Immediately bring an action pursuant to Section 13 of the FTC Act to enjoin further dissemination of any express or implied claim that eating normal portions of Quaker Oatmeal on an ordinary basis can lower cholesterol or reduce the risk of heart disease, under Section 5 of the FTC Act; (2) initiate action under Section 5 of the Act to permanently prohibit dissemination of the claim; and (3) require payment of an appropriate monetary sum to the U.S. Treasury.
Respectfully submitted,
Bruce Silverglade
Director of Legal Affairs
Leila Farzan
Staff Attorney
I'm wondering first of all, WTF does bowling a perfect game have to do with oatmeal!
