Tuesday, April 27, 2010

So about Danone's Activia and DanActive Health Claims...

For those who aren't as odd as I am and read multiple international food newsletters like Nutraingredients, here's what's going on:

1. A little over a year ago in Europe Danone withdrew their claims of probiotic health benefits for Activia and Actimel (known as DanActive here in Canada and also in the US). They withdrew them in response to the European Food Safety Authority's newer regulations which demand rigorous scientific proof for all claims or else they can't be made. At the time, Danone reported they needed to review the new regulatory environment before submitting their claim dossiers and therefore it doesn't seem too much of a stretch to assume that their supporting dossier wouldn't have stood up to the new levels of scrutiny.

That's of course fair. If there were less hoops to jump through before, it would seem reasonable that the dossier they prepared prior to the changes wasn't up to new snuff.

Ten months later Danone resubmitted their claims and then last week re-withdrew them.

Makes it really tough to argue this time that the dossier they submitted ten months after they retracted their old one wasn't up to the new snuff.

Why they withdrew their claims for consideration is anyone's guess. That said I imagine that the last thing Danone would want would be a formal rejection of their claims as that certainly wouldn't be good for business - better to just pull out on their own.

2. In the States Danone is known as Dannon and 2008 saw Dannon settling a class action lawsuit regarding Activia and DanActive health claims to the tune of $35 million. The terms of the settlement don't in fact have Dannon suggesting their claims aren't true but rather states that Dannon preferred to avoid the distraction and expense of litigation. $35 million seems like quite a large expense and distraction. Did they really think it would have taken $35 million to prove their claims were true and is it really that distracting for a massive multi-national corporation to have their lawyers working on their case?

I've been told by someone in the know that here in Canada Danone's been extremely careful not to make specific product claims but rather use inference to promote their suggested probiotic benefits. It would seem that's at least partially true as at least one of these yogurts is still promoting specific health claims - claims presumably pulled from consideration in Europe and the subject of a settled class action lawsuit in the States.

Before we get there, first let's look at the inferential claim. For evidence of this head over to Activia's homepage and you'll see a downward facing arrow on a naked belly with an animation of falling balls, the addition of a probiotic cleverly named B. regularis , and the mention that B. regularis remains active in the intestinal system. Looking at their FAQ you will see some benefits of B. regularis mentioned, but none for Activia the yogurt.

Danactive on the other hand has a very specific claim on its website (and in the photo up above taken at my local supermarket),

"DanActiveTM helps strengthen your natural defenses".
Ultimately I'm surprised that an enterprising class action lawyer here hasn't jumped on this bandwagon.

I'm certainly not an expert in probiotics or the law, but it would seem to me that with the groundwork in the US where Dannon seemed to rather a $35 million settlement to the "distraction and expense" of litigation, and Europe where they keep withdrawing their dossiers for consideration, as well as the claims being inferred by Activia and explicitly made by DanActive here in Canada that this would be a ripe area for an enterprising lawyer.