FTC and Dannon Settle Over Probiotic Claims

December 16, 2010

By Ricardo Carvajal

FTC announced a proposed settlement with Dannon over the latter’s allegedly deceptive advertising claims for two of its probiotic products, Activia and DanActive.  FTC’s complaint alleged that Dannon explicitly or implicitly represented that one serving of Activia relieved temporary irregularity and helped with slow intestinal transit time, and that DanActive was clinically proven to help to avoid colds or flu.  Notably, the advertising described in the complaint explicitly claimed only that DanActive helps strengthen the body’s defenses in the context of a reference to immunity – a claim frequently made for many probiotic products.  Under the terms of the settlement, Dannon would forego making some claims unless they are permitted by FDA regulations, and other claims unless they are supported by “at least two adequate and well-controlled human clinical studies. . . conducted by different researchers, independently of each other, that conform to acceptable designs and protocols and whose results, when considered in light of the entire body of relevant and reliable scientific evidence, are sufficient to substantiate that the representation is true.”  

This is but the latest in a string of FTC actions that target allegedly deceptive marketing of foods.  As we noted in a prior posting, FTC has specifically signaled its interest in probiotics and immunity-boosting claims, and in products marketed for use by children.  Thus, the advertising for DanActive cited in FTC’s complaint was a “two-fer” – a probiotic with immunity-boosting claims marketed for use by children. 

According to FTC’s press release, “FTC worked in close coordination with 39 state attorneys general” who are also settling their inquiries into Dannon’s advertising to the tune of $21 million – a welcome infusion to cash-strapped states.