Will the nation's largest municipal consumer protection agency crack down on misleading marketing claims about organic food by one of the most sanctimonious, greener-than-thou grocery chains?
We don't think it will, but there's a strong caseâ€”based on the law and the factsâ€”that it should.
First some background. Nearly a week after New York City Department of Consumer Affairs (DCA) investigators found that Whole Foods Market ripped off unwitting customers by "routinely" overstating the weight of pre-packaged foodsâ€“including meats, seafood, dairy and baked goodsâ€“the store widely known as "Whole Paycheck Market" 'fessed up.
"Straight up, we made some mistakes. We want to own that and tell you what we're doing about it," Walter Robb, co-CEO of Whole Foods said in a video published on July 1st.
Shoppers come and go from a Whole Foods Market store in Union Square, Wednesday, June 24, 2015, in New York. New York City's consumer chief said Wednesday that Whole Foods supermarkets have been routinely overcharging customers by overstating the weight of prepackaged meat, dairy and baked goods. (AP Photo/Julie Jacobson)
It must be comforting to the victims of a scam when the perpetrator admits to wrongdoingâ€“only after being caught. And this isn't the first time Whole Foods has been caught with their thumb on the scale.
In 2014, the company reached an $800,000 settlement with the City Attorneys of Los Angeles, Santa Monica and San Diego after such rookie criminal mistakes as failing to account for the weight of containers at their already over-priced salad bars.
But consumer affairs departments have up to now turned a blind eye to a worse deceptionâ€“one that's central to Whole Foods' inflated pricing.
On its webpage, Whole Foods purposefully perpetuates the myth that organic food is more nutritious than conventionally grown produce. The misleading nature of that suggestion should be the basis for action by NYC DCA Commissioner Julie Menin, who promised to "remain vigilant and hold Whole Foods and other supermarkets accountable for any misleading and deceptive practices."
Whole Foods asks, "[I]s organic food more nutritious? This question has been the source of a lot of discussion in the past few years...and we're feeling pretty optimistic about some of the new research."
The problem is that it cites shoddy, cherry-picked research from unreliable, biased sources.
For instance, it singles out "leading research" by the Organic Center, an outfit directed by organic food and supplement makers including Mike Ferry, the president of Horizon Organic, and Meg Hirshberg, the wife of organic activist, Stonyfield Cofounder and Chairman Gary Hirshberg.
Whole Foods then directs consumers only to the Organic Trade Association, The Rodale Institute (whose motto is, "organic pioneers since 1947"), and "research" from a Washington State University webpage. The WSU link isn't even research, it's a bizarre essay that argues that the United States Department of Agriculture should "prohibit the use of manure from non-organic farms," which would allow organic food marketers "to support their claims of addressing climate change."
The DCA should recognize that WSU's manure diatribe has nothing to do with Whole Foods' suggestion that organic food is more nutritious.
Whole Foods fails to present the evidence that debunks the organic-is-healthier hoax. For example, a widely-publicized analysis published in 2012 in the Annals of Internal Medicine by researchers at Stanford University's Center for Health Policy aggregated and analyzed data from 237 studies to determine whether organic foods are safer or healthier than non-organic foods. They concluded that fruits and vegetables that met the criteria for "organic" were on average no more nutritious than their far cheaper conventional counterparts.
This is the very type of "misleading" (defined as giving the wrong idea or impression) marketing that DCA is supposed to stop.
Given the huge price premium for organic foods (and other products, including linens and clothing), one might well ask, "Why organic?" "Let me be clear about one thing," said then Secretary of Agriculture Dan Glickman said when organic certification was being considered, "the organic label is a marketing tool. It is not a statement about food safety. Nor is 'organic' a value judgment about nutrition or quality."
If New York's DCA is doing its job, it'll crack down not only on Whole Foods' admitted, supposedly "unintentional" mislabeling and overcharging (a crime that the criminal code calls "larceny by false conveyance")â€“but also on its deceptive representations of organic products, which we can only conclude is done intentionally for the purpose of bilking consumers.
Jeff Stier is a senior fellow and the director of the Risk Analysis Division at the National Center for Public Policy Research. Henry I. Miller, a physician and molecular biologist, is the Robert Wesson Fellow in Scientific Philosophy and Public Policy at Stanford University's Hoover Institution; he was the founding director of the FDA's Office of Biotechnology.