Bloomberg News
By Andrew Zajac

Cartons of Dean Foods Co. (DF)’s Horizon organic milk fortified with DHA feature a picture of a young girl to illustrate the heart, eye and brain benefits of the additive, referencing the work of a prominent nutritionist.

The problem: the author says her study doesn’t support those health claims, and has joined with the scientific journal that published the work to demand removal of the citation.

“It’s not right — it’s inaccurate,” said Penny Kris-Etherton, a professor of nutrition at Penn State University, who wrote the report. “It’s really a marketing strategy to sell more of their milk.”

It’s not the first time Dean, the largest U.S. dairy processor, has drawn criticism for its advertising and health claims — and Kris-Etherton’s objection may lead to Dean dropping the citation from its cartons. The company last year toned down its advertising about claims made about the brain-supporting attributes of DHA, an Omega-3 fatty acid normally found in oily fish, in response to a complaint to the Federal Trade Commission. Dean also is the target of at least five class-action lawsuits filed by consumers alleging that the statement that DHA “supports brain health” is false.

The Food and Drug Administration says that adding foods with DHA and another fatty acid, known as EPA, to a diet may reduce the risk of heart disease. The agency has not authorized specific health claims on DHA’s effects on brain and eye health, and some scientists say studies are inconclusive. DHA, or docosahexaenoic acid, is often taken as a fish-oil based dietary supplement.

Voluntary Removal

Dean says it may voluntarily remove the reference on its carton to Kris-Etherton’s work published in the American Journal of Clinical Nutrition to support a claim that “many Americans don’t get the recommended DHA from their everyday diet.”

Kris-Etherton, who has served on nutrition panels for the USDA and the American Heart Association, says her research did not identify an ideal intake level for the supplement. The carton also states that “doctors and nutritionists agree that DHA may make a big difference for kids and adults alike.”

“It’s appropriate to use published scientific studies as references for support of a statement,” Sara Loveday, a Dallas-based spokeswoman for Dean unit WhiteWave Foods Co., which controls the Horizon brand, said in an e-mail. “However, per the author’s request, we are considering removal of the claim within our next round of packaging changes in 2013.” She said the citation “will likely be removed, but we are still working through internal alignment.”

Higher Prices

High prices — and controversies over what exactly qualifies as “organic” food — are hallmarks of a market that has grown almost fourfold since 2002, to $29.2 billion in sales in 2011. As consumers embrace organic items, food researchers and organic activists say that a niche sector once dedicated to food purity has been taken over by large corporate interests who are steamrolling a lax regulatory system into approving synthetic additives that dilute the brand.

“There were and are powerful political pressures to weaken the standards, so as many people as possible could qualify as organic,” says Marion Nestle, a nutritionist at New York University who has studied the growth of the organic industry.

The DHA in Horizon milk is a non-organic oil derived from algae manufactured for the company. On cartons, the milk is described as an “excellent source of hard-to-get plant-based DHA,” along with the boast that it has a “great taste” with “no fish oils.”

Brain Claims

The disputed brain health claims about DHA give Dean a marketing edge for an organic product that already sells at a premium in retail outlets such as Whole Foods Market Inc. (WFM) and Trader Joe’s Co. A half-gallon carton of organic milk had an average advertised price of $3.93, compared with $1.97 for non-organic milk, according to U.S. Department of Agriculture data for the first two weeks of July.

DHA usually adds between 30 cents to 80 cents to the half-gallon price, according to a survey by the USDA’s National Organic Program, which is charged with ensuring the integrity of organic products.

The Horizon brand accounts for about 40 percent of the organic milk market, according to Amit Sharma, an analyst who covers Dean for BMO Capital Markets in New York. Horizon is part of Dean’s WhiteWave unit, which had sales of $2.1 billion in 2011.

Consumers are willing to pay that premium, based largely on health claims.

“You hear good things about DHA — brain health,” says Jeff Haigney, outside a Whole Foods supermarket in Silver Spring, Maryland, where his shopping cart included a half-gallon of Horizon DHA-enriched milk.

‘Controversial’ Evidence

“The evidence is controversial,” Nestle says. “If you’re a skeptic like me, you’re not persuaded by the totality of evidence. If you’re a believer in supplemental nutrition, then you want to do everything to get it in food.”

On one point nearly everyone agrees: DHA doesn’t need to be added to milk. Researchers such as Kris-Etherton say consumers can get the same brain-boosting benefits from two servings of fish per week.

DHA is just one of 234 additives allowed by the USDA’s 15-member National Organic Standards Board, which advises Secretary of Agriculture Tom Vilsack on items that can be included in food that is labeled “organic.”

The list of approved non-organic ingredients was supposed to be limited to items related to food production, such as baking powder for bread, along with additives including vitamins A and D that are deemed essential to health by the FDA, according to Jay Feldman, a member of the organic standards board.

New Additives

In recent years, however, more additives that are neither essential to making food nor to health have been approved, Feldman said in an interview.

Feldman and other critics say the larger menu of non-organic ingredients reflects the expanded influence of large corporations. Many of the well-known organic food brands such as Muir Glen, Cascadian Farms and Kashi are subsidiaries of companies such as General Mills Inc. (GIS) and Kellogg Co. (K)

“We have this unrelenting drive to approve ingredients to make the industry grow,” says Urvashi Rangan, director of consumer safety and sustainability for Consumer Reports. “That undermines the standards that people expect out of organic.”

The Agriculture Department says its organic panel includes a broad range of members who reach conclusions independently.

Board Makeup

“USDA strives to appoint members to the Board that reflect the diversity of the U.S. organic agriculture and the American people,” says Soo Kim, an agency spokeswoman.

“I think that organic increasingly is looking to compete with conventional on the shelf,” says Feldman, executive director of Beyond Pesticides, a Washington-based nonprofit that supports the use of alternatives to pesticides.

The DHA in Horizon’s milk is made by Martek Biosciences, a U.S. unit of Heerlen, Netherlands-based Koninklijke DSM NV (DSM), a food supplement business that also manufactures plastics and resins used in body armor, auto parts and biodiesel products for companies such as oil producer BP Plc. (BP/)

Martek’s algae-based DHA first appeared in organic food about a decade ago as an additive to infant formula.

When the use of the ingredient was challenged by the Cornucopia Institute, an organic food advocacy group, Barbara Robinson, then-head of the National Organic Program, ruled in 2006 that DHA could stay in organics without undergoing review by the standards board because government regulators considered it an essential nutrient.

The following year, Horizon introduced its line of milk featuring Martek’s DHA.

Reversed Decision

In 2010, the Agriculture Department reversed the decision, ruling that DHA and 11 other additives didn’t fit regulators’ “essential” definition and needed approval by the organic standards board.

The panel voted 10-4 on Dec. 2 to recommend adding DHA to the list of approved ingredients. A final decision rests with Vilsack.

Miles McEvoy, the current deputy administrator of the National Organic Program, was unavailable to comment on the DHA controversy.

Mark Kastel, executive director of the Cornucopia Institute, an organic food advocacy group, said that the Agriculture Department should have required the removal of DHA from organic products following the 2010 ruling.

‘Last Refuge’

“Parents are seeking out organic as the last refuge without synthetic components,” said Kastel, whose Cornucopia, Wisconsin-based group filed the FTC complaint against Dean’s marketing claims for DHA. “Now somebody with a test tube and a factory is going to compete when there’s no scientific evidence that the nutrition is commensurate with a natural product.”

The FTC said that Horizon’s advertising suggested that consuming DHA-enriched milk boosted intelligence or cognitive function. The agency said in a Dec. 13, 2011 letter to Dean Foods that “the staff encourages WhiteWave to exercise caution in future advertising when describing the certainty of the supporting science or characterizing the extent of any benefits of DHA beyond the support of normal brain and eye development or function in children over the age of two.”

Because the company had already changed its radio, television and web ads, the agency closed its investigation without taking enforcement action.

Dean spokeswoman Loveday said that while Dean Foods disagreed with the substance of the FTC requests, “we opted to cooperate by agreeing to minor changes.”

Milk Lawsuit

The consumer lawsuits filed against Dean allege that the company’s brain health claims on the milk carton and in other advertising are “false, misleading and reasonably likely to deceive the public,” according to a filing by the plaintiffs seeking to consolidate the complaints in federal court in Miami.

Patricia Syverson, identified in court filings as one of the lead lawyers on the case, declined to comment through Lydia Rueda, a spokeswoman for Phoenix-based law firm Bonnett, Fairbourn, Friedman & Balint. Loveday said Dean “does not discuss details of pending litigation.”

Feldman says the standards board needs to be tougher on applications for non-organic, non-essential additives.

“I don’t think anyone can make a case that fortification materials are essential,” says Feldman, a member of the board who voted against allowing DHA onto the list of approved non-organic substances. “You can say they’re desirable. You can say that consumers want them. But you can’t argue that they’re essential to health.”

To contact the reporter on this story: Andrew Zajac in Washington at [email protected]

To contact the editor responsible for this story: Bernard Kohn at [email protected]

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