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CORPLAW7 COMMENTARIES

EQUAL7:
THE UNEQUALLED BIOGRAPHY
& Other Tales Fat-FreeJ
Falsity in labeling aided and abetted
by the Government

by Barry J. Lipson
First, let's set the record straight. To me, Equal7, or at least its sweetening agent "aspartame," is
unequalled as a reduced-calorie sweetener and sugar substitute [well, now theres Splenda and it can be used
in cooking1]. Equal states right on its labeling, "As sweet as two tsp. sugar," and I believe it. It once again
proclaims on its labeling, "Tastes like sugar," and I buy into this claim also.
Sure, some people are allergic to phenylalanine, which it contains, and there have been attempts to find all
kinds of biological problems associated with it. But I don't appear to be allergic, and there does not yet appear
to be a firm scientific basis for the other purported biological counter-indications.
However, besides it being no darn good for cooking, two other things have bugged me about Equal7.
First, its in-house trade name for aspartame which is NutraSweet7. I know of no nutritional value for Equal7
as implied by "Nutra," the first part of this trademark, except possibly in the "dextrose" which it lists as its lead
ingredient, and therefore, the ingredient of which it contains the most. As you probably know, dextrose is a
sugar, which leads to the second item that bugged me. Equal7 very "discreetly" originally acknowledged on
its labeling that each serving contained "four calories," presumably from the dextrose, exactly what I wanted to
avoid by using Equal7.
You can imagine my joy when in 1995, in bold, unhidden and considerably larger letters, the Equal7
packets now read, "0 calories." Then, in 1996, the size and visibility of "0 calories" became even more
prominent on the Equal7 packets, and Equal7 in its television advertisements, began strongly touting its "0
calories" status. Meanwhile, the competing aspartame sweeteners, which sprung up after the aspartame patent
expired in approximately 1993, still then acknowledged on their labeling that they provide "four calories."
Was this another breakthrough by the giant chemical company Monsanto, then the parent company of the
NutraSweet Company2 (according to its labeling at that time, NutraSweet "distributes," and thus does not itself
manufacture Equal73)? Did this mean that I should discard and ignore in the future all of these upstart
fattening Equal7 rip-offs? It seemed so.
At that point, however, my Food, Drug and Cosmetic Law training kicked in. I remembered how under
FDA regulations buttermilk was allowed to have more fat content than nature decreed, as true buttermilk is
actually what's left after all the butter fat has been removed. Conversely, I remembered that reduced fat frozen
desserts could not then be called ice cream because they contained an insufficient percentage of butter fat, no
matter how unhealthy the butter fat might be. But magnanimous Monsanto would not play games with its
consumers, would it?
Spurred on by these suspicions, which were reinforced by the facts that while the size of the calorie
disclosure increased in type size and decreased in number of calories, the ingredient list changed not one iota,

either in content or order, I placed a call to NutraSweet's Customer Relations' 800 number. I was hoping against
hope for a scientific breakthrough.
But, alas, after the inevitable delay, a sweet, friendly woman advised that there had been no change in
Equal7, and that it was exactly the same product as when it was labeled as providing four calories. "What
changed then," I asked? "Why," she replied, "the
FDA thought consumers were concentrating too much
on calorie content and not enough on nutrition," so
they decreed that any product with five calories or less
per serving could declare on its label that it contained
"0 calories." I thanked her sweetly and refrained from
saying, "What nutritive value?"
So what do we have here? A government that
apparently wants us to forget about the calorie content
of a product to concentrate on its nutritive content,
when it has none; and a company which, when it had
to, discreetly, and in small type lost in a paragraph of
text, revealed it provided four calories, and which
now boldly proclaims that it contains "0 calories,"
when, in fact, it still contains those same "four
precious calories."
Not only does this give Equal7 a competitive
advantage over the "me too" products until they get
their own labeling up to speed (if they too decide to
mis-inform their customers, which they now have
decided to do); and over competing sugar substitutes
(which in my opinion it did then beat out in taste) who
can no longer so easily use its four calories against it,
but it removes knowledge and decision making from
the consumer.
Thus, the consumer has been
intentionally and affirmatively presented with false
information, as is clear from the new emphasis on the
false calorie disclosures. Indeed, dieters on very
calorie-restricted diets who have a "sweet tooth"
could easily, unknowingly increase their daily calorie
intake by 10% through the use of Equal7.
Thus, it appears clear that we have here falsity in
labeling aided and abetted by the Government. But
is this limited to just sweeteners? Let us now place
under scrutiny the dieters other bugaboo, that
blubbery baddy

fat !!!

Pet's7 "NONFAT Buttermilk." Under the misconception that someone

was finally providing "true" buttermilk (that is buttermilk made from "skim"
milk after all the butter fat has been skimmed or removed), I purchased this
product. After transporting this alleged "prize" by cooler from Virginia Beach,
Virginia, to Pittsburgh, Pennsylvania, you can imagine my disappointment
when a close reading of the back label revealed that this product by calories
was actually over eleven (11%) percent fat, and actually contained eight (8)
grams of fat and even four (4) grams of saturated fat. The company's response
was to hide behind FDA regulations which they asserted permitted such
deceptive misinformation. Obviously, they "knew" that nobody reads the
"small print" or back label. No "thank you" was forthcoming for pointing out
this obvious illogical inconsistency in their labeling [but as appears from the
accompanying graphic, they seem to have now corrected this absurdity].
Mr. Turkey "100% Fat Free." Talking Turkey, "Mr. Turkey," made
by the Bil Mar Foods Divison of Sara Lee, in a giant corner banner boldly
proclaimed its Rotisserie Flavor Smoked Turkey Breast to be "100% Fat
Free," and that's almost true! According to the very helpful "fat free"
ladies who respond to the "1-800-LESS FAT" consumer line at Sara Lee,
while they are required to list that their "Rotisserie Flavor" ingredient
contains "butter" and "cream," these "fat" clues on the label only add 100th
of a gram of fat per serving, certainly de minims. Further inquiries revealed
that this "100% Fat Free" package actually contained up to 1.2 grams of fat
or up to .2 grams per serving/slice (though a subsequent telephone message
claimed only ".075 grams per slice"). Certainly "less fat," but 100% fat
free? Under USDA regulations, which govern meat and poultry, like the
FDA regulations previously explored, these nice ladies explained, a
"serving" can contain up to half a gram of fat and still be labeled "fat free."
So please make sure that on their next math exam your future Turkey Scouts4 correctly answer that "six
servings TIMES half a gram of fat per serving = 100% Fat Free" (and not "3 grams of fat"). [But Mr. Turkey
now seems willing to admit, as seen on the accompanying graphic, that at least one of his products is now
down (or up) 4%, to being only 96%, Fat Free.]
LEAN Honeysuckle WHITE Ground Turkey - Dark &
Blubbery. Just as this column was about to go to bed a sweet voice
said to me, reading from an advertisement: "Why don't you pick up
some Lean Honeysuckle White Ground Turkey? It's lean, its 99
cents a pound at Giant Eagle, and you like white meat." At the "Big
Bird" sure enough it was 99 cents, but its so-called "lean" label
revealed it contained 10 grams of fat per serving. Not only that, but on
the package in very small letters under the giant word "White," the
tiny word "Brand" appeared (which, as here, was not shown on the
picture in the ad), and in still smaller letters the ingredients read
"100% Pure Turkey, MOSTLY DARK."

Who then are the Turkeys here? The Toms and Hens in the packages, the manufacturers who intentionally
give false and/or misleading impression of the "quality" and content of their products, the retailers who aid in
the deception, and/or those who buy "the bird" having the misplaced faith that our Government would not
aid and abet falsity in labeling?
But to be fair, most of the time Government labeling works in the consumers favor, even sometimes by
Serendipity, and then too not all misreporting is aided and abetted by the Government, as the following shows:
Pepperidge Farms NONFAT Products. Our perusals also show Government labeling working on
behalf of the dieter, if only by happenstance. In at least one of its outlet stores, Pepperidge Farms revealed in a
formal printed sign, prominently posted, that the formula has not changed on the bread products it had
previously labeled NONFAT, and now labels Low Fat or Light Fat. What changed were only
government regulations, which by mandating the increasing of the utilized serving sizes, now required the
revelation on the label that fat is actually present. Thank you FDA, your unscientific pro-consumer batting
average on matters reported here has now increased to 333 (minus for calories, minus for fat and plus for
serving size).
Nature's Classic Shrimp Tiny Whole. While improperly not stating the serving size, this product, "made
explicitly for K-Mart," listed the calories of its "Drained Wt. 4 1/4 OZ (120 g)" Can as an astounding 1,222
calories. Rough calculations from the other information supplied indicated that approximately 173 calories
would be much more accurate. The literature reporting on other brands of similar products supported this
lower figure. Similarly, Nature's Classic White Crab Meat, while also improperly not stating the serving size,
listed the calories of its "Net Wt. 6 OZ 170 g Drained Wt. 4 1/4 OZ (120 g)" Can as a similarly astounding
1,106 calories. Rough calculations from the other information supplied indicated that approximately 121
calories would be much more accurate. The literature reporting on other brands of similar products again
supported the lower figure. While technically, in violation of FDA labeling regulations, correcting this
erroneous information clearly would be to K-Mart's marketing advantage. I, therefore, so advised K-Mart and
am still awaiting a "thank you."
This, then, is the unequalled and unauthorized biography of Equal7, NutraSweet, Monsanto, the FDA &
Other Products Fat-Free. Just remember to always be cautious whenever you hear, "Hi!, I'm from the FDA
[or Monsanto?, or NutraSweet?, or Merisant?], and I'm here to help you." You never know whether you'll
be getting "one lump or two," or which kind (sweet or hard). Then, again, when was the last time you were
given a lump5 of sugar for your otherwise calorie free coffee?
Please address your "Other Tales Fat-FreeJ," and your comments, questions and suggestions for future
Corplaw7 Commentaries Columns on marketing and business law, and other legal subjects to Barry J. Lipson,
Esquire, at bjlipson@gmail.com .
Copyright8 1996-2011 by Barry J. Lipson.
__________________________
1
I believe Splenda and Equal both have 4 calories.
2
Lest I be accused of being unfair, let me reveal that I would not hesitate to recommend to a client who is
concerned with insulation from the backlash of potential counter-indications and/or liability, that it consider
establishing a separate entity to market that product.
3
In 2000 the Merisant Company bought Monsantos artificial sweetener business.
4
Ben Franklins choice, the Turkey for the national bird in the place of the Eagle.
5
Which crumbled until they put a little tear in the paper wrapper to let in the air.