Hohenberg v. Ferrero USA, Inc

Filing 123

OBJECTION by Courtney Drey, Andrea Pridham . (Attachments: # 1 Declaration Exhibit A, # 2 Declaration Exhibit B, # 3 Declaration Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit F, # 6 Exhibit Exhibit G)(Pridham, Grenville) (ag).

Weighty Matters: Think a Class Action Lawsuit Will Stop Nutella from Making Ridiculous Claims? Think Again.

WEDNESDAY, JUNE 06, 2012

Think a Class Action Lawsuit Will Stop Nutella from Making Ridiculous
Claims? Think Again.

In case you hadn't heard Nutella was hit with a class action lawsuit consequent to their promotion of
Nutella as, "An example of a tasty yet balanced breakfast", when in actuality, at least by the numbers,
Nutella's not quite as balanced as no-name chocolate icing.
Now much has been made about the suit and how it's going to stop Nutella from making that claim, but
the thing is, it's not.
I took a phone call the other day from a consumer advocate lawyer named Mark Lavery who's opposed to
the settlement as written. He alerted me to this paragraph,
"Ferrero will modify the back panel of the label for Nutella (the “Information Panel”) by
removing the phrase "An example of a tasty yet balanced breakfast” and replacing it with
“Turn a balanced breakfast into a tasty one” (the “Revised Statement”). Ferrero retains
the right to determine, in its sole discretion, the location, size and other design
characteristics relating to the Revised Statement"
Mr. Lavery's concern, and it's one that I share, is that the new statement, "Turn a balanced breakfast
into a tasty one", is just as disingenuous as the original. Wouldn't adding chocolate icing to your
breakfast "unbalance" it, or is the goal to "balance" healthy with sugar to ensure it's not too healthy? My
additional concern is that not only does it still seem to suggest Nutella is a nutritious choice, it now
suggests that actually healthy breakfasts aren't tasty.

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Weighty Matters: Think a Class Action Lawsuit Will Stop Nutella from Making Ridiculous Claims? Think Again.

Now I realize that many people felt this lawsuit was frivolous and I'm not going to get into that here, I
just want to ask you, do you think the new statement is any less misleading than the old one?
I've written a brief statement for Mr. Lavery. If you're interested in doing the same, you can reach him
here. Deadline's this Friday.
Declaration of Dr. Yoni Freedhoff, MD
My name is Yoni Freedhoff and I’m a physician, an Assistant Professor of Family Medicine at
the University of Ottawa, the former Family Medicine Chair of the Canadian Obesity
Network, a Diplomate of the American Board of Obesity Medicine, and a vocal public health
advocate.
People often think healthy living is intuitive. They think that since they can envisage what
“healthy living” looks like in their minds, that it’s therefore a simple choice. If only that
were the case. While there is no shortage of impediments to healthy living in our modern
world, certainly one of the most prevalent and dangerous is disingenuous marketing. People
simply don’t have the time, background or frankly the inclination to read food labels
carefully, let alone understand them - a fact that perhaps has not been lost over the years
on the marketers of Nutella.
Looking at the settlement’s injunctive relief I’m confused by the proposed wording which in
my mind is no less misleading than the original which was in question. The statement, “Turn
a balanced breakfast into a tasty one” implies two things. First that adding Nutella to a
balanced breakfast would still leave that breakfast “balanced”, and secondly that actually
balanced breakfasts aren’t tasty.
Again, nutrition isn’t intuitive, and in large part that knowledge gap is fueled by marketing.
Having watched my fair share of television commercials, and read my fair share of magazine
advertisements, I know that included in Nutella in some capacity are hazelnuts and milk nutritional heroes to many. Perhaps that’s why even I was surprised to learn that in a head
to head comparison with no name chocolate icing, Nutella was found to have 25% more
calories and nearly 30% more sugar. In fact by weight Nutella is 57% sugar (21g of sugar per
37g serving) and as far as nutritional benefits go, Nutella’s are negligible at best providing
an effectively insignificant 4% of daily calcium and iron needs.
Which brings me back to the question of whether or not Nutella can be a part of a
“balanced” breakfast? As a medical doctor and an expert in both nutrition and obesity I
would argue that adding a dollop of no-name chocolate icing to a “balanced” breakfast
would in fact unbalance it, making what was once healthy, not. Consequently one might
argue that adding a dollop of Nutella with 25% more calories and 30% more sugar than noname chocolate icing, regardless of the miniscule amounts of calcium and iron Nutella may
contain, would perhaps make that breakfast 30% more unbalanced than would adding the
icing were such a measure actually quantifiable.
Personally I liken Nutella to a spreadable chocolate bar. If you believe that adding a
chocolate bar to a balanced breakfast leaves it balanced, then by all means give Nutella this
marketing get-out-of-jail free golden ticket. On the other hand, if you think allowing Nutella
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Weighty Matters: Think a Class Action Lawsuit Will Stop Nutella from Making Ridiculous Claims? Think Again.

to explicitly continue to suggest, in a society where 1 in 3 children are overweight or obese
and the rates of pediatric diabetes are skyrocketing, that the inclusion of chocolate bars
with children’s meals precludes nutritional balance, perhaps the wording of this settlement’s
proposed injunctive relief deserves a sober second look.
I declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct.
Executed on June 5th, 2012
Sincerely,
Dr. Yoni Freedhoff, MD, CCFP, Dip ABOM
Assistant Professor, Family Medicine, University of Ottawa
Medical Director, Bariatric Medical Institute
575 West Hunt Club, Suite 100
Ottawa ON K2G5W5
Yoni Freedhoff at 5:30 AM

16 comments:
Courtney @ Translating Nutrition 7:34 AM
I'm with you. I think pitting balanced/healthy against tasty is not the way to go. The new claim is not much of an
improvement.
I would have prefered them to say something like 'a sweet addition to your breakfast' or something with the word
sweet so at least folks know this is a sugary product right from the get go.
Reply

Anonymous 8:47 AM
My kids wanted to try it, luckily it was too sweet to buy it again. It's the same chocolate mix that they put in a
Ferrero chocolate.
We have not bought this product since. You might as well give your kids candy for breakfast! The commercials
are misleading, they imply that your child will be on top of their game in school because they had Nutella for
breakfast. My children are ready to learn because they had a balanced breakfast, have routine and proper
nutrition throughout the day.
My kids do get sweets here and there, we do go out for dinner and eat junk, but there is a fine line when it
comes to breakfast, empty calories is not the way to go.
I'm glad someone has called them out on misleading the consumer. To be honest, we fell for it.
Reply
Replies

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Weighty Matters: Think a Class Action Lawsuit Will Stop Nutella from Making Ridiculous Claims? Think Again.

Anonymous 12:40 PM
But i am sure you give them danishes, doughnuts and cereal

Reply

Anonymous 11:30 AM
I know a three year old who is a fussy eater....Nutella toast is one of the only things that he eats. Boo.
Reply
Replies
Anonymous 12:58 PM
kids wont starve themselves. stop giving him nutella and start offering healthier choices and youll be
surprised what he will start eating.

Reply

Anonymous 12:01 PM
I'm not defending Nutella & I object to the healthy vs tasty slant of their new tag line, but just a minute. Surely
iron and calcium are not the only nutrients hazelnuts and chocolate provide? If I spread Nutella on a piece of
whole grain toast, is that a whole lot different than, say, peanut butter and jam (which is one of my, and my
boy's favorite breakfasts)?
There's a fine line between lobbying for better health labeling and coming off as So Puritan than people stop
listening.
Reply

Leslie 12:10 PM
I love nutella. I will eat it and give it to my kid once in a while (read: every couple of weeks, for a little treat).
But it's not balanced, and it's not healthy. I agree - new tagline, just as disingenuous as the old one.
Reply
Replies
Anonymous 7:40 PM
Well said!

Reply

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Weighty Matters: Think a Class Action Lawsuit Will Stop Nutella from Making Ridiculous Claims? Think Again.

Anonymous 12:38 PM
This is ridiculous, children are obese these days not because we give them a nutella sandwich, its because they
do nothing but play vids on their computer and tv. Why notmake them cut the grass, electronic free sundays,
walk to school..... and yes 3km and take their bike to their soccer game
Reply
Replies
Anonymous 1:04 PM
I think you should read more of this blog.. lack of exercise isnt the issue for childhood obesity and there
is a ton of evidence to support that. you can bike 5 miles and burn off 100-200 calories however if you
then eat a few tbsp of nutella on bread or drink a cup of juice after you completely negate the calorie
burning benefits of exercise.
Somebody has to advocate food manufacturers and advertisers to promote responsible advertising for
health, packaging sizes and nutrition claims, Keep up the fight Yoni!

dana 2:30 PM
wrong! a nutella sandwich (on two slices of white bread no doubt) is exactly why children are obese!

Anonymous 4:13 PM
Really?? Nutella is to blame for childhood obesity??? Really?!?
Wow. I guess if they just stop manufacturing Nutella the childhood obesity epidemic will just go away?
My dad is 70, grew up in Italy & had Nutella almost daily. He still eats it in toast at night. He's 5'10" and
weighs 125lbs. He was never obese but ate/eats it daily. So much for Nutella causing obesity.
I'm not defending their advertising and it's in no way, shape or form healthy but no one in their right
mind would blame one single item as the cause of obesity in children.

Nigel Kinbrum 9:24 PM
@Anonymous: If your dad had never eaten Nutella, he probably would have weighed 100lb. Your dad is
naturally skinny (possibly due to NEAT/SPA or his lifestyle).
Nutella contributes towards childhood obesity by displacing foods that are more nourishing & filling
and have fewer kcals.

dana 10:40 PM
well i was speaking in hyperbole but it's clear that food is what's causing the rapid rise in childhood
obesity. we all know someone who can eat whatever they want and not gain a pound. there are some
with that body type. but just because they're eating crap and not gaining weight, that doesn't mean it's
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Weighty Matters: Think a Class Action Lawsuit Will Stop Nutella from Making Ridiculous Claims? Think Again.

good for them. if you have kids, i hope you're not feeding them nutella everyday because grandpa is
still slim. (and really, he eats nutella EVERY day?! hopefully you were speaking in hyperbole too)

Reply

Unknown 2:31 PM
I'm with you on this, well said, doc. My thesis research is currently on added sugars, nutrient intake, and obesity
of multiethnic children here in Hawaii. Misleading advertisements on food products is exactly part of the problem
in children's weight status. I have actually bought one of Nutella's fine snacks size, "Nutella sticks" or "Nutella &
go", this one is quite very small in portion but packing with lots of added sugars. I was curious to see it because I
see the snack often in children's diet records. Calculating how much added sugars content there is in one snacksize of Nutella & go sticks, you better off drinking a 16 fluid ounces of soda, they both have about the same
added sugars content. This is not surprisingly, actually, if you look at the Nutella ingredients, the first thing you
see is a type of sugar, not hazelnut. More power to you, Doc!
Reply

PuffsPlus 5:59 PM
Broadly speaking, eating too many calories on a regular basis is what's causing the obesity epidemic in kids and
adults. But Nutella is an intensely caloric food, and has a lot of calories (with half of them coming from sugar)
packed into only a couple of tablespoons. That makes it a likely candidate for promoting obesity.
Reply

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ABOUT ME

Yoni Freedhoff
Family doc and founder of Ottawa's Bariatric Medical Institute - a multi-disciplinary, ethical, evidence-based
nutrition and weight management centre. Nowadays I'm more likely to stop drugs than start them, and love
going to work in the morning.
View my complete profile

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Weighty Matters: Think a Class Action Lawsuit Will Stop Nutella from Making Ridiculous Claims? Think Again.

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