This week, the Supreme Court heard arguments in a case brought by POM Wonderful gainst Coca-Cola, alleging fraudulent and deceptive advertising of Coca-Cola’s Pomegranate-Blueberry juice. The legal question centered on whether a private party can bring a lawsuit for misleading advertising if a label is compliant with regulations established by a federal agency, here the US Food and Drug Administration (FDA).
Throughout the arguments, words like “fair” and “deceptive” were reiterated. Justice Kennedy asked “If Coca-Cola stands behind this label as being fair to consumers… I think it’s relevant for us to ask whether people are cheated in buying this product.”
Responding to an amicus brief presented by the Department of Justice distinguishing between juice that flavors a product as opposed to juice that is predominant by volume, Justice Alito posed a similar question. “You don’t think there are a lot of people who buy pomegranate juice because they think it has health benefits, and they would be very surprised to find when they bring home this bottle that’s got a big picture of a pomegranate on it, and it says ‘pomegranate’ on it, that it is … less than one half of 1 percent pomegranate juice?”
To those even vaguely familiar with nutrition and the world of big food advertising practices, the questions posed by the justices in this case are old news. Consumers are “deceived” all the time. Food packaging is very cleverly labeled to allow the consumer to infer beliefs about a product, irrespective of the truth. In the case at hand, Coca-Cola’s label makes no health claims specific to either the pomegranate or the blueberries in its juice. Coca-Cola calls the product a juice blend, and paints the consumer a drawn to scale still-life of the five fruits inside its drink. Perhaps the confusion over the healthful properties of this drink stem from the prominent front of package claims regarding Omega-3s and brain health. But nowhere does Coca-Cola directly link the health claim to either pomegranates or blueberries.
So what then are the justices actually taking issue with? Counsel for Coca-Cola responded to this line of questioning by explaining that “[w]e’re not talking here about safety. We’re talking here about labeling so that consumers have adequate information.” Herein lies the question.
What is adequate information?
Would Justice Alito feel differently about the quantity of pomegranate juice present in Coca-Cola’s product if he didn’t believe that pomegranate’s had positive health benefits? (The truth is, there are no scientifically proven benefits of drinking pomegranate juice. And, note the irony in this case’s plaintiff. POM Wonderful itself faced legal actions for deceptive and misleading nutrition claims about the health properties of pomegranate juice).
In this case, the consumer does not have adequate information to decide whether it matters from a health perspective how much pomegranate or blueberries are in the juice. The question of FDA’s role in regulating the adequacy of the information available to consumers on nutrition labels and their role in guiding healthy eating choices has been the subject of debate for years. Just this past March, FDA proposed the first change to nutrition labeling in 20 years. The proposed changes could help consumers better understand the difference between a fruit juice and a fruit flavored drink. Hopefully, new nutrition labeling guidelines will address the adequacy of information issue to equip consumers with the knowledge needed to make better eating choices, based on facts, and not incorrect inferences stemming from clever and misleading marketing tactics.
Since the beginning of the debates around the Affordable Care Act (ACA), there’s been a relatively muted on-going conversation about the value of the employer based health insurance model. It has, however, never really come to the fore as the ACA never seriously engaged with the idea of canning the whole system and starting fresh under a new model. The history of the employer based health care system has been well canvassed elsewhere (This American Life, New York Times, LMGTFY) and I have no intention to rehash that material here. The question I want to discuss is, “Why is there any fidelity to this system at all?” It’s a system that is bad for consumers, bad for employers, and bad policy. No one wins in this system.
Below is a table of pros and cons to the employer based model. As my bias is clear that the employer based model is fundamentally flawed, I’ve taken the pros from the National Business Coalition on Health (NBCH) who put together a small post on the advantages of an employer based health insurance scheme. Read More
We are delighted to present the Retrospective for the O’Neill Institute for National and Global Health Law at Georgetown University, Innovative Solutions for Complex Health Challenges: Our Past, Present, and Future.
Posted in FCTC, FDA, Global Health, Health reform, Human Rights, National Healthcare, Resources, Tobacco, Trade, WHO; Tagged: ACA, FCTC, food and drug law, global health law, Global Health Law LL.M., governance, health and human rights, HIV, national health law, oneillinstitute, public health law, retrospective, tobacco control, WHO.
The Commissioner of the United States Food and Drug Administration, Margaret Hamburg will provide the keynote address to the O’Neill Institute for National and Global Health Law’s Summer Program on Emerging Issues in Food and Drug Law.
Margaret A. Hamburg became the 21st commissioner of food and drugs on May 18, 2009. The second woman to be nominated for this position, she is an experienced medical doctor, scientist, and public health executive.
As the top official of the Food and Drug Administration (FDA), Dr. Hamburg is committed to strengthening programs and policies that enable the agency to carry out its mission to protect and promote the public health. “Strengthening FDA’s programs and policies will help us protect the safety of the food supply, give the public access to safe and effective medical products, find novel ways to prevent illness and promote health, and be transparent in explaining our decision-making,” says Dr. Hamburg. “A strong FDA is an agency that the American public can count on.” Read More
You have no doubt heard about MH 370, the Malaysian Airlines plane lost in the Southern Indian Ocean, with its 239 passengers and crew almost surely killed in a crash into the ocean For several days after the plane disappeared last month this was a lead story in major news media outlets. Even now, whenever there is what may be a significant development in the search, the story returns to the headlines.
Fair enough. This was, after all, a tragedy, hundreds dead, along with the genuine mystery of what happened to the flight, and anguish of family members waiting for news, grasping for any reason to hope, even when by all logic, hope of the passengers’ survival would seem lost.
Also last month there was another transportation tragedy. It killed even more people; 251 may be the final toll. An overcrowded boat of refugees in Uganda, who had fled the violence across the border in the Democratic Republic of Congo, were returning home on March 22. Their boat capsized in Lake Albert, which spans the border of the two countries. Some of those onboard were rescued. Most drowned.
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I grew up quite sure about what was the greatest food threat to my health: fat. Not at first – I remember in elementary school the snacks my mother would prepare when my brother and I got home from school, with plenty of grapes, apples, peanut butter – and cheese. We had whole milk in the house.
But then began the age of evil fat, of fat free ice cream and delicious sugary yet fat free Entenmann’s cakes (did I say sugar)? Sugar was an issue, of course – brush well, not good for your teeth – but otherwise, well, glucose was the brain nourishment. We switched to something called Skim Plus milk – you can still find it in some supermarkets. Peach yogurt was a favorite snack. Who gave a thought to the sugar content? It was calcium, protein, low-fat, and tasted so good, too. My favorite snack food, cereal, was safe. And years later, when work took me abroad, there was always safety and comfort for my vegetarian and culinary conservative self in bread roll upon bread roll. Read More
The American healthcare system has undergone enormous change in the last few years. At both the federal and state levels, understanding the new landscape introduced by the Affordable Care Act, with its legal intricacies and policy nuance, is paramount to anyone working in this field.
This summer, join Georgetown scholars and DC health policy wonks for a one-week intensive look at American health care and coverage. The program will focus on the framework of the Affordable Care Act and the legal and policy implications of its implementation.
Additional information about the program, including application details, can be found here.
On Monday evening, Georgetown Law celebrated the launch of O’Neill Institute Faculty Director, Lawrence Gostin’s new book Global Health Law. At the event, Ezekiel Emanuel, Laurie Garrett, and Edith Brown Weiss joined a panel, moderated by Gostin, to discuss the book and broader themes of global health and justice. This post provides a brief recap of the event.
The event began with Gostin discussing two competing narratives in global health. First is the narrative put forward by global health “heavyweights” such as Margaret Chan and Bill Gates, which lauds the considerable achievements over the past decades (e.g. greater access to basic health services, huge expansion of access antiretroviral therapy, etc.). The other narrative is advanced largely by civil society groups and focuses on the continued misery and ill health in which many still live. He illustrated this second theme by reading a selection of “global health narratives” from his book—stories of marginalized youth around the world. Read More
Please join the O’Neill Institute for National and Global Health Law at Georgetown University for a one-week intensive summer institute exploring the domestic and international legal, regulatory, and policy framework shaping the safety and availability of foods and medicines worldwide.
The program will cover U.S. domestic law including recent laws and regulations; international regulatory harmonization and mutual recognition efforts now under way between major exporting and importing countries; and the increasing influence of trade and investment rules. The program will convene leading academics, practitioners, and regulators to inform participants not only what the law is now, but which forces will shape its future. Additional information can be found here. Read More
Today I attended the first day of the EU Summit on Chronic Diseases. The Summit brings together policymakers, stakeholders and interest groups involved in chronic disease prevention, with the aim of developing a set of recommendations for policy action to reduce the medical, social and economic burden of chronic diseases in the EU. This post gives a brief overview of the key themes from the first day of the Summit, and provides a written version of my presentation on the role of law in chronic disease prevention.
The first day of the Summit involved a series of workshops that explored the specific areas in which the EU could take action to prevent chronic disease. It generated a series of recommendations that will be developed on Day 2 of the Summit by representatives from national health ministries and global health organizations, in addition to the attendees from Day 1. Read More
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The views reflected in this blog are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.