Photo illustration by Slate. Photos by Shutterstock.
Like many things that are infuriating and depressing, POM Wonderful LLC v. The Coca-Cola Company
is also very funny. Currently under consideration by the Supreme Court,
the case has a wonderfully absurd feel, starting with the name of the
product in question, which itself remains a matter of debate. POM, the
plaintiff, insists that its competitor’s beverage is called “Pomegranate
Blueberry,” while Coca-Cola prefers “Pomegranate Blueberry Flavored
Blend of 5 Juices.” In keeping with the philosophically nuanced choice
of California’s 9th Circuit Court, I’ll refer to the beverage
colloquially as Pomegranate Blueberry, “but take no view on whether this
is its actual name.”*
is also very funny. Currently under consideration by the Supreme Court,
the case has a wonderfully absurd feel, starting with the name of the
product in question, which itself remains a matter of debate. POM, the
plaintiff, insists that its competitor’s beverage is called “Pomegranate
Blueberry,” while Coca-Cola prefers “Pomegranate Blueberry Flavored
Blend of 5 Juices.” In keeping with the philosophically nuanced choice
of California’s 9th Circuit Court, I’ll refer to the beverage
colloquially as Pomegranate Blueberry, “but take no view on whether this
is its actual name.”*
This quibbling seems beside the point, however, since even the
official name is patently deceptive. Pomegranate and blueberry juice
make up a scant 0.3 percent and 0.2 percent, respectively, of
Pomegranate Blueberry, while anonymous apples and grapes account for
99.4 percent. That’s not to mention the outrageous label, where
“POMEGRANATE BLUEBERRY” dwarfs “FLAVORED BLEND OF 5 JUICES,” the effect
of which is significantly enhanced by a “fruit vignette,” featuring
freakishly large blueberries and raspberries (the remaining 0.1
percent), grapes that look like cranberries, and a pomegranate so
aggressively succulent that its apple companion appears to be cowering
in fear.
official name is patently deceptive. Pomegranate and blueberry juice
make up a scant 0.3 percent and 0.2 percent, respectively, of
Pomegranate Blueberry, while anonymous apples and grapes account for
99.4 percent. That’s not to mention the outrageous label, where
“POMEGRANATE BLUEBERRY” dwarfs “FLAVORED BLEND OF 5 JUICES,” the effect
of which is significantly enhanced by a “fruit vignette,” featuring
freakishly large blueberries and raspberries (the remaining 0.1
percent), grapes that look like cranberries, and a pomegranate so
aggressively succulent that its apple companion appears to be cowering
in fear.
There’s no question that Coca-Cola and its subsidiaries use beverage names (Vitaminwater!)
to deceive people. The strategy works, and not just on “unintelligent
consumers,” as Coca-Cola’s counsel suggested in oral arguments before
the Supreme Court. The suggestion irritated Justice Kennedy, who himself
had been duped by Pomegranate Blueberry’s labeling and didn’t
appreciate being called unintelligent. But deceptive names, even
effective ones, aren’t what worry me most. The really dangerous words
are sitting on top of the fruit vignette, in bold black letters:
to deceive people. The strategy works, and not just on “unintelligent
consumers,” as Coca-Cola’s counsel suggested in oral arguments before
the Supreme Court. The suggestion irritated Justice Kennedy, who himself
had been duped by Pomegranate Blueberry’s labeling and didn’t
appreciate being called unintelligent. But deceptive names, even
effective ones, aren’t what worry me most. The really dangerous words
are sitting on top of the fruit vignette, in bold black letters:
HELP NOURISH YOUR BRAIN
This claim about the juice’s power, disguised as an imperative and
condoned by the FDA, is not merely misleading in its particulars. Worse,
it reinforces an understanding of nutrition that borders on belief in
magic, while simultaneously undermining the institutions whose task it
is to educate us properly.
condoned by the FDA, is not merely misleading in its particulars. Worse,
it reinforces an understanding of nutrition that borders on belief in
magic, while simultaneously undermining the institutions whose task it
is to educate us properly.
Here’s how it happens: Above HELP NOURISH YOUR BRAIN, Coca-Cola’s
marketing team features “Omega-3/DHA.” For the sake of argument, I’ll
offer myself as a proxy for your average, educated consumer with no
special interest in nutrition science. How do I understand these
technical terms? Well, omega-3 I’ve heard before, but only in the
context of omega-3 fatty acids. Those, I’m pretty sure, are good for
you. Something to do with preventing heart disease, or maybe cancer.
DHA? Sounds vaguely familiar, but I’m not coming up with anything
specific.
marketing team features “Omega-3/DHA.” For the sake of argument, I’ll
offer myself as a proxy for your average, educated consumer with no
special interest in nutrition science. How do I understand these
technical terms? Well, omega-3 I’ve heard before, but only in the
context of omega-3 fatty acids. Those, I’m pretty sure, are good for
you. Something to do with preventing heart disease, or maybe cancer.
DHA? Sounds vaguely familiar, but I’m not coming up with anything
specific.
Fortunately, there’s more information on the side of the bottle:
- DHA is a key building block in the brain
- Choline and B12 play a role in brain and nervous system signals
- Antioxidant vitamin E may help shield the omega-3s in the brain from free radicals
- Vitamin C is highly concentrated in brain nerve endings
Who knew? Omega-3 isn’t in the drink—it’s in my brain! This is
starting to feel like it makes sense. At some point I learned that
pomegranate juice has cancer-fighting antioxidants, which clearly shield
special brain cells called omega-3s from dangerous free radicals. And
DHA? Why, that’s the stuff I remember from infant formula
labels—evidently it has similarly beneficial effects on adults!
starting to feel like it makes sense. At some point I learned that
pomegranate juice has cancer-fighting antioxidants, which clearly shield
special brain cells called omega-3s from dangerous free radicals. And
DHA? Why, that’s the stuff I remember from infant formula
labels—evidently it has similarly beneficial effects on adults!
By now I’ve probably made certain readers anxious enough to chug their kids’ cherry-flavored St. John’s Wort. Come on, they’re thinking, everyone knows DHA is an omega-3 fatty acid commonly associated with fish oil, scientifically proven to fight, in alphabetical order: aging, allergies, Alzheimer’s, arthritis, cancer, depression, heart disease, malaria, premature birth, obesity, osteoporosis, and viral infection.
Needless to say, all of this, from claims about fish oil to brain
nourishment, is a mashup of wish fulfillment and overstated science.
Sometimes the bad science is obvious. Help nourish your brain—in a sense there’s no food that doesn’t, insofar as starvation seriously disrupts one’s ability to think. Who cares if DHA is a key building block in the brain? So are nucleic acids, but ingesting them might actually be harmful.
nourishment, is a mashup of wish fulfillment and overstated science.
Sometimes the bad science is obvious. Help nourish your brain—in a sense there’s no food that doesn’t, insofar as starvation seriously disrupts one’s ability to think. Who cares if DHA is a key building block in the brain? So are nucleic acids, but ingesting them might actually be harmful.
It seems reasonable to believe that sciency substances like DHA and vitamin C do something
good. The FDA requires that all food labels carry vitamin C
content—surely the stuff is important. But it turns out that the
required display of vitamin C content, along with vitamin A, is anachronistic,
left over from a time when deficiencies in both were a major American
health threat. It’s vanishingly rare for people to get scurvy these
days, but the mythic power of vitamin C lives on thanks to our
insatiable desire for panaceas, which Coca-Cola is delighted to sell us
in the form of Pomegranate Blueberry and Power-C Dragonfruit Vitaminwater (vitamin C & taurine).
good. The FDA requires that all food labels carry vitamin C
content—surely the stuff is important. But it turns out that the
required display of vitamin C content, along with vitamin A, is anachronistic,
left over from a time when deficiencies in both were a major American
health threat. It’s vanishingly rare for people to get scurvy these
days, but the mythic power of vitamin C lives on thanks to our
insatiable desire for panaceas, which Coca-Cola is delighted to sell us
in the form of Pomegranate Blueberry and Power-C Dragonfruit Vitaminwater (vitamin C & taurine).
Aside from preventing scurvy, vitamin C hasn’t actually been proven to do anything. Not for brain health, not for colds, not for cancer, not for pneumonia, not even for gout.
The same, disappointingly, holds for fish oil and pomegranates. (In
fact, while suing Coca-Cola, POM is also being sued by the FTC for its
massive pomegranate propaganda campaign.) Nevertheless, as Coca-Cola and
POM well know, magical curative ingredients move product, so they are
happy to put them in beverages and advertise their benefits on the
label.
The same, disappointingly, holds for fish oil and pomegranates. (In
fact, while suing Coca-Cola, POM is also being sued by the FTC for its
massive pomegranate propaganda campaign.) Nevertheless, as Coca-Cola and
POM well know, magical curative ingredients move product, so they are
happy to put them in beverages and advertise their benefits on the
label.
Regulating this kind of deception is difficult in America for a
variety of reasons. First, there’s a peculiar bipartisan skepticism that
frames scientists as minions of either big government or big business,
depending on one’s political leaning. The FDA is either a liberal cabal
out to destroy capitalism and dictate public access to medicine, or it
is a pawn of Big Pharma, a corporate arch-villain bent on keeping us
from knowledge of Mother Nature’s secret blessings.
variety of reasons. First, there’s a peculiar bipartisan skepticism that
frames scientists as minions of either big government or big business,
depending on one’s political leaning. The FDA is either a liberal cabal
out to destroy capitalism and dictate public access to medicine, or it
is a pawn of Big Pharma, a corporate arch-villain bent on keeping us
from knowledge of Mother Nature’s secret blessings.
The result is an FDA with limited political power and virtually no ability to regulate claims on food and supplements.
In 1994, Sens. Orrin Hatch (R-Utah) and Tom Harkin (D-Iowa) spearheaded
the Dietary Supplement Health and Education Act, which relaxed the
rules about permissible health claims on products that aren’t classified
as drugs. Hatch hails from Utah, home to what the New York Times called
the “Silicon Valley of the nutritional supplement industry,” while
Harkin is a longtime fan of “alternative medicine,” having become
convinced in 1992 that bee pollen cured his hay fever.
Over the next decade, a spate of “corporate free speech” lawsuits by
food companies forced the FDA to revise its condition that health claims
reflect “significant scientific agreement.” Instead the FDA introduced
four levels of “qualified health claims,” which meant food and
supplement labels could say pretty much whatever they wanted, provided
there was a qualification—instead of “omega-3s shield your brain,” write
“omega-3s may shield your brain.” Oh, and always make sure you include a disclaimer: This statement has not been endorsed by the FDA.
In 1994, Sens. Orrin Hatch (R-Utah) and Tom Harkin (D-Iowa) spearheaded
the Dietary Supplement Health and Education Act, which relaxed the
rules about permissible health claims on products that aren’t classified
as drugs. Hatch hails from Utah, home to what the New York Times called
the “Silicon Valley of the nutritional supplement industry,” while
Harkin is a longtime fan of “alternative medicine,” having become
convinced in 1992 that bee pollen cured his hay fever.
Over the next decade, a spate of “corporate free speech” lawsuits by
food companies forced the FDA to revise its condition that health claims
reflect “significant scientific agreement.” Instead the FDA introduced
four levels of “qualified health claims,” which meant food and
supplement labels could say pretty much whatever they wanted, provided
there was a qualification—instead of “omega-3s shield your brain,” write
“omega-3s may shield your brain.” Oh, and always make sure you include a disclaimer: This statement has not been endorsed by the FDA.
For people like Justice Scalia, written disclaimers should be plenty.
“He sometimes doesn’t read closely enough,” said Scalia in response
to Kennedy’s frustration with Pomegranate Blueberry’s label.
Unfortunately, belief in the power of disclaimers is as unscientific as
belief in the power of vitamin C. We know this because the FDA’s very own scientific studies prove it! When examining the effect of qualified health claims, investigators reported
that FDA qualified health claims at Levels 2 and 3 were actually “more
positive with a disclaimer than without.” For health claims in general,
“the disclaimer being there made no difference.” And as for claims like
Coca-Cola’s may help shield the omega-3s in the brain? “We got
what we sometimes refer to as a boomerang effect where people were more
negative when they saw a claim that didn’t have the ‘may’ there.”
to Kennedy’s frustration with Pomegranate Blueberry’s label.
Unfortunately, belief in the power of disclaimers is as unscientific as
belief in the power of vitamin C. We know this because the FDA’s very own scientific studies prove it! When examining the effect of qualified health claims, investigators reported
that FDA qualified health claims at Levels 2 and 3 were actually “more
positive with a disclaimer than without.” For health claims in general,
“the disclaimer being there made no difference.” And as for claims like
Coca-Cola’s may help shield the omega-3s in the brain? “We got
what we sometimes refer to as a boomerang effect where people were more
negative when they saw a claim that didn’t have the ‘may’ there.”
In other words, disclaimers don’t work, and qualifications might
actually make unfounded claims sound even stronger. (Notice the “might”
in that last sentence. Did it work?) Not very encouraging, and not
something people want to believe.
actually make unfounded claims sound even stronger. (Notice the “might”
in that last sentence. Did it work?) Not very encouraging, and not
something people want to believe.
“It’s embarrassing to admit because it sounds like people are
stupid,” says Rebecca Tushnet, a professor at Georgetown Law and curator
of the Web’s best false advertising blog. “In fact, people are human. They have limiting processing capacity, and you can’t just stuff information down their gullet.”
stupid,” says Rebecca Tushnet, a professor at Georgetown Law and curator
of the Web’s best false advertising blog. “In fact, people are human. They have limiting processing capacity, and you can’t just stuff information down their gullet.”
Another part of being human is that we are often complicit in our own deception.
Companies don’t really need to make a claim about vitamin C. They
simply advertise its presence (fortified!) and then we fill in the
miraculous power with our own imaginations. The same is true for diet
and low-cal foods. The implicit claim, nowhere to be found on the label
and provided entirely by the consumer, is that these foods will
contribute to weight loss. However, the science on this is decidedly mixed, with one study indicating
that low-cal labels may license increased calorie consumption. And even
if low-cal labels were banned, companies could simply make their labels
green, a choice shown to increase the perceived healthfulness of candy bars, “especially among consumers who place high importance on healthful eating.”
Companies don’t really need to make a claim about vitamin C. They
simply advertise its presence (fortified!) and then we fill in the
miraculous power with our own imaginations. The same is true for diet
and low-cal foods. The implicit claim, nowhere to be found on the label
and provided entirely by the consumer, is that these foods will
contribute to weight loss. However, the science on this is decidedly mixed, with one study indicating
that low-cal labels may license increased calorie consumption. And even
if low-cal labels were banned, companies could simply make their labels
green, a choice shown to increase the perceived healthfulness of candy bars, “especially among consumers who place high importance on healthful eating.”
That’s the most depressing aspect of POM v. Coca-Cola. By keeping consumers—and the courts and the government—focused on truthful labels, such cases distract from what actually motivates consumer behavior and structures beliefs.
In 2005, Bruce Silverglade, then head of the Center for Science in
the Public Interest, called out the FDA for ignoring its own studies and
accused it, rightly, of abetting a corporate war on science. “The FDA’s
current policy allows companies to dupe consumers into thinking that
this food or that food is the key to reducing the risk of cancer and
heart disease,” said Silverglade, who prior to working at the CSPI had
helped craft FDA policy.
the Public Interest, called out the FDA for ignoring its own studies and
accused it, rightly, of abetting a corporate war on science. “The FDA’s
current policy allows companies to dupe consumers into thinking that
this food or that food is the key to reducing the risk of cancer and
heart disease,” said Silverglade, who prior to working at the CSPI had
helped craft FDA policy.
Humans have been historically tempted by the notion that foods are
blessed or cursed, some ensuring long life, good health, and existential
bliss, others causing physical and spiritual death. This
quasi-religious faith in the power of nutrition, endlessly reinforced by
marketers and irresponsible journalists, is extremely hard to dislodge.
(Doctors have learned to break the news about vitamin C gently,
as one might explain the Earth’s real age to a child raised by
creationists.) Despite persistent efforts on the part of health care
professionals, people cling doggedly to talismans of good health. In the
end, Coca-Cola and POM aren’t deceiving us so much as they’re
facilitating our own self-deception.
blessed or cursed, some ensuring long life, good health, and existential
bliss, others causing physical and spiritual death. This
quasi-religious faith in the power of nutrition, endlessly reinforced by
marketers and irresponsible journalists, is extremely hard to dislodge.
(Doctors have learned to break the news about vitamin C gently,
as one might explain the Earth’s real age to a child raised by
creationists.) Despite persistent efforts on the part of health care
professionals, people cling doggedly to talismans of good health. In the
end, Coca-Cola and POM aren’t deceiving us so much as they’re
facilitating our own self-deception.
Consequently, I’m in agreement with food companies on one crucial
point: The antidote to deceptive advertising isn’t further government
regulation. Instead of regulating labels, public and political focus
should be on media literacy education, especially regarding science. The
first step is promoting self-awareness, the trained realization that we
are awash in scientific buzzwords—serotonin, cholesterol, hormones,
neurons, vitamins, lipids—about which very few people have any real
understanding. Most of us encounter these words as functionaries in
modern medical folklore: If your serotonin is low you’ll be depressed;
avoid bad cholesterol; neurons are best when they’re “plastic;” vitamin
supplements can help with bad vision. The echo chamber of food and
pharmaceutical marketing amplifies this nonsense, and without vigilance
we too easily mistake it for science.
point: The antidote to deceptive advertising isn’t further government
regulation. Instead of regulating labels, public and political focus
should be on media literacy education, especially regarding science. The
first step is promoting self-awareness, the trained realization that we
are awash in scientific buzzwords—serotonin, cholesterol, hormones,
neurons, vitamins, lipids—about which very few people have any real
understanding. Most of us encounter these words as functionaries in
modern medical folklore: If your serotonin is low you’ll be depressed;
avoid bad cholesterol; neurons are best when they’re “plastic;” vitamin
supplements can help with bad vision. The echo chamber of food and
pharmaceutical marketing amplifies this nonsense, and without vigilance
we too easily mistake it for science.
POM strikes a blow against science by making health claims for
pomegranate juice, and Coca-Cola does the same by intimating that
Pomegranate Blueberry helps nourish your brain. But the real blow to
science, the one that’s far less obvious, is how high-profile cases like
POM v. Coca-Cola reinforce our belief in the magic powers of
food and supplements. In this, we are the real villains, and companies
just come along for the ride. In the words of Ben Goldacre, epidemiologist and author of Bad Science and Bad Pharma:
pomegranate juice, and Coca-Cola does the same by intimating that
Pomegranate Blueberry helps nourish your brain. But the real blow to
science, the one that’s far less obvious, is how high-profile cases like
POM v. Coca-Cola reinforce our belief in the magic powers of
food and supplements. In this, we are the real villains, and companies
just come along for the ride. In the words of Ben Goldacre, epidemiologist and author of Bad Science and Bad Pharma:
We love this stuff. It isn’t done to us, we invite it, and
we buy it, because we want to live in a simple universe of rules with
justice, easy answers, and predictable consequences. We want pills to
solve complex social problems like school performance. We want berries
to stop us from dying and to delineate the difference between us and the
lumpen peasants around us. We want nice simple stories that make sense
of the world, and if you make us think about anything more complicated,
we will open our mouths, let out a bubble or two, and float off—bored
and entirely unfazed—to huddle at the other end of our shiny little fish
bowl eating goji berries.
So this summer, when the Supreme Court decides on POM v. Coca-Cola,
take the opportunity to nourish your brain. Not with food or pills, of
course, but rather a healthy dose of skepticism about claims that
certain “super” foods do anything more than, well, keep people fed. I
promise you won’t regret it: Unlike fish oil, pomegranate juice, and
vitamin C, the beneficial effects of skepticism enjoy significant
scientific agreement.*
take the opportunity to nourish your brain. Not with food or pills, of
course, but rather a healthy dose of skepticism about claims that
certain “super” foods do anything more than, well, keep people fed. I
promise you won’t regret it: Unlike fish oil, pomegranate juice, and
vitamin C, the beneficial effects of skepticism enjoy significant
scientific agreement.*
*This statement has not been evaluated by the FDA. This attitude is
not intended to diagnose, treat, cure, or prevent any disease.
not intended to diagnose, treat, cure, or prevent any disease.
Correction, May 22, 2014: This article originally misstated the name of the 9th Circuit Court of Appeals. (Return.)
