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.”*
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.
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:
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.
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.
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!
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.
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).
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.
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.
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.
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.”
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.
“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.”
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.”
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.
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.
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.
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:
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.*
*This statement has not been evaluated by the FDA. This attitude is 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.)