10 24

Superfoods or Superhype?

Although the term “superfood" is used by many manufacturers of foods, beverages and supplements, it has no clear definition and no legal standard, so marketers should be wary about how their use of the term is interpreted by consumers and regulators.

In an effort to stay current in an ever-changing and competitive food industry, marketers are always looking for edgy and creative ways to grab the attention of their consumers. Although the term “superfood" is used by many manufacturers of foods, beverages and supplements, it has no clear definition and no legal standard. Still, this marketing term has been seen in just about every aisle of the grocery store from the frozen foods section to the produce aisle, and everywhere in between. Perhaps the term is a fad, but, for the time being, those who use it should be aware of its potential implications.

What ‘Superfood’ Means

While no legal standard exists for the term “superfood" in the United States, it carries positive connotations. The Macmillan Dictionary defines “superfood" as: “A food that is considered to be very good for your health and that may even help some medical conditions." The Oxford Dictionary defines “superfood" as: “A nutrient-rich food considered to be especially beneficial for health and well-being." Overall, there’s no denying that use of the term “superfood" intends a message that the product provides, at a minimum, a superior benefit.

Marketers should be wary about how their use of terms such as “superfood" is interpreted by consumers and regulators. Use of the term “superfood" has been prohibited by the European Union since 2007 unless accompanied by a specific medical claim supported by scientific research. This ban was the result of concerned nutritionists who believed the proven benefits demonstrated by “superfoods" were not sufficient to avoid misleading marketing.

Do’s and Don’ts

Consumers are often confused about the meaning or intended message behind “superfoods" as it appears on the product packaging. Unfortunately, that confusion can lead to an allegation of false advertising by an enterprising plaintiff’s lawyer. Since there is no legal definition, it is imperative that companies explain to the consumer what “superfoods" means to them and specifically to their products/ingredients. This explanation should be on the packaging or marketing material, to clearly communicate the message to consumers. FDA recently stressed the importance of consumer education, as the agency wants to see consumers become more aware of the foods they’re putting in their bodies and purchasing for their families. Brands that have thorough information about the benefits of their foods and what consumers can generally expect from products are aligned with FDA’s educational initiative.

Scientific or Literature Support

It is recommended to keep scientific or literature support for the meaning behind “superfoods" or benefit claims as they are used by the company. Advertising claims should not be made without competent and reliable evidence to support such claims. For example, if it is the company’s position that Ingredient A is a “superfood" because it is nutrient dense in comparison to a similar ingredient or food group, then the company should explain what “nutrient dense" means (e.g., that it is rich in macro and/or micro nutrients, and meets FDA’s requirement of at least 20 percent of the daily value). Companies can also fund their own research to demonstrate how their product(s) promote health or wellness. Although this route can be more costly at the onset, it can be beneficial in the long term if claims are ever contested.

Collect Expert Opinions

It is also recommended that companies collect expert opinions from nutritionists and other qualified experts, endorsing or confirming the benefits of their “superfoods" and the usage of the term in context. While expert opinions may be beneficial in use of the unregulated term “superfoods," it’s important to note that expert opinions alone cannot be used as substantiation for health benefit claims. Adequate substantiation in the form of competent and reliable scientific evidence is still needed.

Avoid Express or Implied Disease Claims

Many issues can stem from the use of the term “superfood" in relation to disease claims. A disease claim is a statement that claims to diagnose, cure, mitigate, treat or prevent a disease and requires prior approval by FDA. While it may not always be possible to draw a bright line between the claim a brand is trying to make and the statement implicitly being a disease claim, it should look at the overall appearance of the claim in the context it is using it. It’s important to recognize the implied claims, or several interpretations that can be made from a single claim. Another issue that seems to come up is when the claim on a package convinces the consumer to purchase one “superfood" product over another, but the “superfood" product doesn’t necessarily provide the benefits it touts. Many dietitians and nutritionists have voiced their displeasure with the marketing of certain snack food products such as chocolates or cookies as “superfoods" because they believe consumers may purchase these products over traditional healthy foods such as fruits or vegetables.

Again, the context of the term “superfoods" is key as the company needs to take all reasonable interpretations of its use into account.

Although not much litigation surrounds the use of the term “superfood" specifically, many lawsuit notice letters from plaintiffs’ lawyers surrounds a company’s use of the term “superfoods." The allegations from these plaintiffs’ lawyers generally assume the company is implicitly making an impermissible “healthy" or “natural" claim, or touting some health benefits irrespective of the company’s actual interpretation of its use. While companies desire to remain savvy in the marketing of their products, these companies should always remain mindful of the legal implications of all advertising messages.

Rachel Gartner is an associate attorney at Amin Talati & Upadhye (amintalati.com). Gartner focuses her practice on FDA, FTC, advertising, marketing, regulatory, transactional and litigation matters in the food, beverage, dietary supplement, drug, medical device and cosmetic space.

Abhishek Gurnani is an associate attorney at Amin Talati & Upadhye. Gurnani provides regulatory, transactional and litigation services to food, drug, dietary supplement, medical device and cosmetic companies.

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