The judge in the case has not ruled on whether the allegations in the lawsuit are right or wrong, but he did find that the case has merit and that most of the lawsuit's claims can go forward. As he wrote in his decision, the Food and Drug Administration's regulations do not allow the fortification (such as with vitamins) of a food that has little or no nutritional value for the sole purpose of qualifying it for a health claim.
This regulation is colloquially referred to as the "jelly bean rule." The FDA maintains that adding vitamins to jelly beans, for example, and then calling them healthy would be misleading and confusing to consumers, particularly given that such food products provide calories and little else.
The center's lawsuit contends that Vitaminwater is merely fortified sugar water. And the marketing of the product - with claims suggesting that it promotes energy, vitality, and even health - "bombards consumers with a message of purported benefits, and draws consumer attention away from the significant amount of sugar in the water," according to the center.
In Philadelphia, we have just had a vigorous debate about a proposed city tax on sugary beverages. As a result, we may have become more aware of the health consequences of excess consumption of them.
My colleagues and I at the Annenberg Public Policy Center recently completed a survey of more than 500 Philadelphia parents and caregivers in which we asked them about attitudes and behaviors related to obesity. As we explored the topic of beverages, what we found was surprising and somewhat paradoxical.
According to our survey, 69.7 percent of respondents felt that drinking sugary beverages contributes "a lot" to the problem of excessive weight. Despite this, Philadelphia homes are well-stocked with these beverages: 56 percent have "fruit drinks" like Hi-C (those that are not 100 percent fruit juice), 41 percent have non-diet soda like 7-Up, and 42 percent have sports or energy drinks like Vitaminwater.
On average, Philadelphians drink two servings of these beverages a day, and almost a third drink a sugar-sweetened beverage with dinner. This is true of both adults and children.
And yet study after study shows what our survey respondents already knew: that the empty calories in sugary drinks can lead to excessive weight and obesity. So could the relentless marketing of these products be leading Philadelphians to make poor choices?
Coca-Cola says that because the FDA-mandated nutritional-information sticker on the bottle reveals the truth about the amount of sugar per serving, and because the flavor names and product descriptions are just run-of-the-mill advertising puffery, "no reasonable consumer could have been misled by Vitaminwater's labeling."
I guess I'm not a reasonable consumer then, because they got me. When I purchased the product at my teenage daughter's request, I interpreted the statement on the bottles - "vitamins + water = all you need" - as meaning that the drink contained only vitamins and water. I hadn't counted on the sugar.
We live in a time when advertising feels like part of the air we breathe. But we also live in a time when the costs of and health problems related to obesity are soaring. Should we really have to pull out our reading glasses to determine whether a product is just fortified sugar water? And can't we develop equally clever campaigns to promote truly healthy foods?
If beverage-makers expect us to be reasonable consumers, then they need to start acting like reasonable companies.
Amy Jordan is director of the Media and the Developing Child Sector of the Annenberg Public Policy Center at the University of Pennsylvania. She can be reached at firstname.lastname@example.org.