FOOD MAKERS AWAIT FTC AD GUIDANCE

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WASHINGTON-Food marketers hope Federal Trade Commission Chairman Janet Steiger will make good on her goal of promulgating food ad guidelines by the time new food labeling rules take effect May 8.

In a recent address to an American Bar Association group, Ms. Steiger said she hopes the agency will soon deliver what it has taken nearly a year to produce: guidelines on harmonizing the FTC's food ad enforcement policies with the new labeling regulations of the Food & Drug Administration.

There's been considerable uncertainty over how closely the FTC's rules would track the FDA's regulations.

"The chairman hopes to get this out next month," said Lee Peeler, FTC associate director for ad practices. "We can't say for sure when, but there definitely is a package [under consideration by the commission] and it's a high priority."

Regardless of when the new ad guidelines come down, food marketers will face a new era after May 8, when their $360 billion industry undergoes a major shift in promotional claims permitted, definitions required and puffery forbidden.

The problem is, for example, that a cereal marketer will be able to note on its package label a government-approved connection between bran and preventing cancer but may sail uncharted waters if it tries to convey that same message in ads.

The key is whether FTC-regulated ads should have more freedom than FDA-regulated labels.

And the FTC must keep an eye over its shoulder. Pending legislation in the House and Senate would require food ads to fall in line with the FDA labeling regulations.

"I think the FTC will expect advertisers to comply with terms established by the FDA, so `fat-free' in an ad will mean what the FDA says it should mean for labels," said Paul Petruccelli, senior food and drug counsel at Kraft General Foods. "But after that, I'm really not sure what to expect."

Food marketers want as much leeway as possible to communicate a sales message in advertising, and that means using synonyms in ads for terms on the labels.

"I see nothing wrong with allowing synonyms," said FTC Commissioner Roscoe Starek. "Labeling is different from advertising .*.*. and if you limit what can be said in an ad, then you're really stifling innovation by both the creative people doing the ads and by the companies. If you can't say in ads that you are lowest in fat or highest in protein, then why try to make your product better?"

Thus, a label claim of "high in fiber" might appear in ads as "loaded with fiber" or "packed with fiber," Mr. Starek said.

That is certainly what marketers want, said Bill MacLeod, a former director of the FTC's Bureau of Consumer Protection.

"There is a concern among my clients that if there were any kind of an FTC mandate for absolute consistency with the FDA regulations, it would fundamentally impair the ability of advertisers to communicate," said Mr. MacLeod, a Washington attorney with several major food advertiser clients. "It's hard to envision much useful nutritional advertising if companies are limited to the kind of reference-speak that was prescribed for labels."

But that idea doesn't sit well with state regulators.

"Food advertisers should be required to follow the FDA regulations for use of nutrient descriptors," 23 state attorneys general told the FTC. "If a food label cannot use the term `lots of fiber,' then the manufacturer should not be able to confuse the public by using this term in an ad to describe the fiber content."

Another problem facing food advertisers is the Nutritional Labeling & Education Act's limits on linking foods to specific diseases. The act allows only seven nutrient-disease relationship claims, and that's not enough, said Toni Guarino, VP-general counsel at the Grocery Manufacturers of America.

"What happens when, regardless of how good the evidence that a nutrient might help prevent a particular disease, the marketer can't disseminate the information" because the FDA hasn't yet approved it? Ms. Guarino asked.

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