OK. A quick show of hands. How many of you would be fine with an energy bar manufacturer labeling its wares targeting kids claiming:

• “Nourishing Kids in Motion”
• “[A] blend of nutrients for energy to help your kid Zipping and Zooming along”
• “In raising our family, finding nutritious on-the-go snacks for our kids wasn’t easy. That’s why we created Clif Kid — delicious snacks made with organic ingredients to keep kids going, growing, and exploring”
• “No High-Fructose Corn Syrup”
• “Non GMO”

For those of you who said “no problem,” would you change your mind if you knew such labeled kid-marketed energy bars contain as much as 12 grams of added sugar accounting for 34% to 37% of calories?

There’s no law, rule, or regulation on the books preventing this sort of nonsense. And as it turns out there are a bunch of products out there which are chock full of added sugar being marketed as wholesome, nutritious, nourishing, or other words meant to convey a healthy choice.

Which leaves it primarily up to the courts to decide whether consumers are being duped into buying products not quite as healthy as they claim.

Such was the case in Milan v. Clif Bar & Company. In the 2018 complaint, plaintiffs claimed Clif Bar was trying to pull the wool over the public’s eyes:

“In marketing its bars with health and wellness claims, Clif regularly and intentionally omits material information regarding the amount and dangers of the added sugars in its products. Clif is under a duty to disclose this information to consumers because (a) Clif is revealing some information about its products — enough to suggest they are healthy or conducive to good physical health — without revealing additional material information — that the amount of added sugar in the bars has detrimental health effects…”

Clif Bar & Company moved to dismiss, but U.S. District Judge James Donato wasn’t having any of what Clif Bar was cookin’. In 2019, Donato rejected the motion to dismiss, in no uncertain terms letting Clif Bar know plaintiffs had a case:

“Plaintiffs have laid out in painstaking and voluminous detail how this substantial percentage of added sugars in Clif’s products can contribute to excessive sugar consumption, which in turn has been linked to many diseases and detrimental health conditions. At this stage of the proceedings, the Court takes these allegations as true, and taken as such, the Court concludes that plaintiffs have stated a claim and, ‘given the opportunity, … could plausibly prove that a reasonable consumer would be deceived by’ the Clif bars’ packaging.”

Ruh roh.

After a whole bunch of legal wrangling last summer, Clif Bar agreed to settle the case, which had along the way became a class-action lawsuit — for $10.5 million. Clif Bar also agreed to remove “nutritious” and “nourishing” from its labels.

But not every judge is ruling for plaintiffs in sugar-related lawsuits. General Mills got a complaint thrown out in 2019. U.S. District Judge Jeffrey S. White ruled that it was ultimately up to consumers to decide the merits of sugar as healthy.

The Food and Drug Administration has updated its guidelines for added sugars and required food manufacturers to include added sugars on nutrition labels. Last September, the FDA proposed updating the definition for “healthy” on package labeling.

To better serve the public, the FDA should do the same for “nutritious.” And probably a bunch of other words. But given the hesitancy of the FDA to take up these issues, don’t hold your breath. It takes a long, long, LONG time for the FDA to make up its mind.

Until then it remains the responsibility of consumers, armed with added sugar information, to sort out whether a product is in tune with their lifestyle. For those that care about such things, I suggest ignoring all those splashy label claims of healthy goodness and strictly focus on the nutrition panel.

About Dave Dickey

Dickey spent nearly 30 years at University of Illinois at Urbana-Champaign’s NPR member station WILL-AM 580 where he won a dozen Associated Press awards for his reporting. For 13 years, he directed Illinois Public Media’s agriculture programming. His weekly column for Investigate Midwest covers agriculture and related issues including politics, government, environment and labor. His opinions are his own and do not reflect Investigate Midwest. Email him at dave.dickey@investigatemidwest.org.

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